In a rare bipartisan moment, the House of Representatives approved HR 1677, the Caesar Syria Civilian Protection Act of 2017 on May 16, 2017. Passed in a voice vote, the bill would authorize the President to expand sanctions that apply to the Syrian government to the Central Bank of Syria and to foreign persons that 1) provide material support to the government or Central Bank, 2) transfer arms or weapons to the government and 3) are responsible for human rights abuses against Syrians, including targeting civilian infrastructure for attack or hindering access for humanitarian assistance. It provides a limited waiver process for groups doing humanitarian or stabilization or democracy promotion, stating that U.S. policy shall “fully utilize the waiver authority…to ensure that adequate humanitarian relief or support for stabilization and democracy promotion is provided to the Syrian people.” However, exceptions described below may limit the benefits of the waiver provision. The bill also requires the President to develop a strategy “to ensure humanitarian organizations can access financial services to ensure the safe and timely delivery assistance to communities in need in Syria.” As the bill is considered by the Senate, nonprofit organizations should ask for a closer analysis to ensure that any law that emerges does not inadvertently narrow space for humanitarian operations from what is currently authorized.
Section 402 of the bill would authorize the President to approve waivers necessary for humanitarian or stabilization assistance and democracy promotion on a case-by-case basis for no more than one year at a time. The written waivers must be submitted to Congress and describe “all notification and accountability controls that have been employed in order to ensure than the activities covered by the waiver are humanitarian or stabilization assistance or support for democracy promotion and do not entail any activities in Syria or dealings with the Government of Syria not reasonably related to humanitarian or stabilization assistance or support for democracy promotion.” (emphasis added)
The one year limit and Congressional reporting requirements are more stringent than what the President, through Treasury’s Office of Foreign Assets Control, is currently authorized to do under federal regulations. For example, it appears to bar the President from issuing General Licenses (which do not require case-by-case review).
There is an important exception to the waiver authority that appears to limit it use. In Section 402(b)(5) the bill states that the waivers cannot apply to foreign persons engaged in providing material support of terrorism, as defined by the Immigration and Nationality Act (INA) at 8 USC 1182(a)(3)(B)(iv)(VI). This definition of material support is broader than the definition in the criminal prohibition of material support in the Antiterrorism and Effective Death Penalty Act (18 US 2339 A and B).
The INA definition defines material support for terrorist activity or for individuals who have committed or plan to commit terrorist activity, as well as terrorist organizations in three tiers:
- Tier I: Foreign Terrorist Organizations (FTOs) designated by the Secretary of State under Sec. 219 of the INA, publicly available at https://www.state.gov/j/ct/rls/other/des/123085.htm
- Tier II: Terrorist Exclusion List (TEL) of organizations, barring entry to the U.S. by members of groups designated by the Secretary of State in consultation with the Attorney General, authorized by Section 411 of the PATRIOT ACT (8 USC 1182), and publicly available at https://www.state.gov/j/ct/rls/other/des/123086.htm.
- Tier III: Undesignated, catch-all category of terrorist organizations created by the PATRIOT ACT, found in Section 212(a)(3)(B)(vi)(III) of the INA, for “a group of two or more individuals, whether organized or not, which engages in terrorist activities.” There is no published list of these organizations.
By incorporating Tier III as a basis for withholding protection for humanitarian work under waivers, the bill appears to give with one hand and take away with the other. This is because the government’s authority to put a group in Tier III is highly discretionary and changes without notice. The Department of Homeland Security notes that “[T]he determination of whether a group can be considered a Tier III organization is made on a case-by-case basis, in connection with the review of an application for an immigration benefit. Tier III organizations arise and change over time.”
As a result, a humanitarian organization may obtain a waiver only to discover, after the fact and as a result of enforcement action that it has conducted transactions with someone who is a member of an unlisted group that is in Tier III.
Section 402(d) of the bill further complicates matters. It codifies the section in the Code of Federal Regulations (31 CFR 542.516) that already authorizes a broad array of services from nongovernmental organizations to meet human needs in Syria. This regulation is drawn from the Office of Foreign Asset Control’s General License 11A for Syria. Codification of these provisions would be a plus for humanitarian and democracy promotion groups, but Section 401(d)(2) of the bill invokes the same INA-based exception, stating that the provision will not apply to any person “engaged in (or the President knows or has reasonable ground to believe is engage in or is likely to engage in) conduct described as material support in the INA.
The bill has been sent to the Senate where it was assigned to the Foreign Relations Committee.