State Dept. Announces New Policy to Allow Famine Aid in Somalia, Treasury Releases Limited Guidance

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August 4, 2011

On Aug. 2, 2011 the U.S. Department of State held a press briefing where it announced that U.S. aid groups that provide famine aid in areas of Somalia controlled by al-Shabaab, a group on the U.S. terrorist list, will not be prosecuted for violating the U.S. law prohibiting material support of terrorism if they act in good faith to reach victims of the famine. No details on how current rules would change were available. On Aug. 4, 2011 the Department of Treasury released a Frequently Asked Questions document that did little to clarify the new policy, but states that only U.S. government agencies and their grantees benefit from it. The Department of Justice, which oversees criminal prosecutions, has been notably silent.

In the Aug. 2 conference call with reporters, an unnamed administration official said, "We are seeking to reassure our humanitarian-assistance partners that they need not fear prosecution under [Treasury Department] regulation as long as they are engaged in good faith efforts." It was not clear whether the new policy applies to all charities or only to those receiving government famine aid funds. According to the National Journal the spokesman said the new policy will allow the U.S. to make grants to nongovernmental organizations that can work under "expanded licenses."
This an important step forward, since 2.2 of the 3.7 million people affected by the famine are located in areas controlled by al-Shabaab. The group has historically charged aid groups tolls for transporting shipments of food and other aid.  Such payments are considered illegal material support under U.S. law.
The Aug. 4 FAQ document from Treasury made it clear that the new rules only apply to USAID grantees and U.S. government agencies.  It says:
"Under the current extreme circumstances on the ground, the Department of State and USAID and their contractors and grantees are authorized to engage in certain transactions in the conduct of their official assistance activities in Somalia, under rigorous controls aimed at preventing diversion of assistance or cash payments to designated parties."
There is no information on what "certain transactions" are or what is meant by "rigorous controls" to prevent aid from getting into the hands of al-Shabaab.
Although State Dept. officials said the details of the new policy have yet to be worked out, it is clear that the blanket ban imposed by the material support law is not being lifted. Instead, the process for aid groups to get licenses from Treasury is to be relaxed in a way that allows them to enter al-Shabaab controlled territory for the purpose of delivering aid to the people there. The Treasury licensing process is notoriously slow and aid groups have registered complaints about the arbitrary and prolonged process.

Sen. Leahy’s Letter to AG Holder and Sec. State Clinton: Concerns About Famine Relief, Peacebuilding and the Material Support Law (Aug 2011)

U.S. Anti-terror Law Hinders Aid Efforts to Somalia (July 2011)

Legal Roadblocks for U.S. Famine Relief to Somalia Creating Humanitarian Crisis (Jan 2010)

InterAction’s Horn of Africa Crisis page
The Washington Post quoted a senior official as saying concerns about diversion of aid to al-Shabaab are legitimate and that charities "need to be able to operate in a way the benefits go to the vulnerable citizens in the country and not to al-Shabab. Up until Aug. 2, this meant that no transactions, including negotiations for humanitarian access to famine victims, were allowed.
Aid organizations had been calling for a new policy for weeks. For example in a July 7 blog on the Huffington Post website MercyCorps attorney Jeremy Konyndyk explained the extent of the disaster in Somalia, and said "There is a safety valve for situations like this: a humanitarian exemption that the State Department could request from the Treasury Department. But State and Treasury have shown little interest in going that route." The International Rescue Committee issued a July 29 call for the administration to "Remove legal barriers to providing aid inside Somalia. Private aid agencies have had to leave areas of Southern Somalia where al- Shabaab, an organization identified as a terrorist group, is in control, or risk violating U.S. anti-terrorism provisions. A waiver is needed for relief agencies to return to this drought-stricken area. The UN has exempted humanitarian agencies from sanctions against al-Shabaab; in line with this policy, the Obama Administration should issue such a waiver immediately."  A blog on the Charity & Security website did the same.
The Post report said there was "no major disagreement within the administration" about providing the expanded licenses, but that it took time to hammer out details to prevent as little aid being diverted or stolen by al-Shabaab. An aide to Secretary of State Clinton said she "has tried to do everything possible to ensure that no one…will be penalized for food shipments inadvertently falling into the hands of al-Shabaab." 
The threat of diversion of aid to al-Shabaab, or of them taking credit for aid coming in, is dwarfed by the scale of the humanitarian crisis in Somalia and other Horn of Africa countries. Professor Ken Menkhaus of Davidson College, an expert on Somalia, told the Post that al-Shabaab gets most of its revenue from other sources, and influential people in Somalia know where the aid is coming from. He said, "I don't think it's going to help them that much, But it will definitely help us. It will show Somalis that we're doing all we can to try to support them in this crisis."
Remarks by State Department spokesman Mark Toner at the Aug. 2 daily press briefing made it clear many details have not been worked out or made public. A reporter asked "...when we asked what the actual change was, nobody could be very specific about it…" The questioner went on to ask if there are actual changes in the language of the restrictions, or "is it just a decision not to enforce restrictions that are on the books or not to proceed with prosecutions that could be undertaken if you choose to do so?"
Toner's answer seems to say it is both. He said, "My sense is that it's an easing of restrictions and that – in a sense we're trying to ease the process or ease the ability for these organizations to get the proper licenses that they can they carry out these actions. But on a broader sense, we're also saying that we recognize, given the tremendous constraints of what they're trying to carry out, that we're not going to uphold some of the legal constraints that they're operating under in trying to access these areas that are controlled by al-Shabaab…"
When asked directly about transporting aid into al-Shabaab territory, Toner said charities may now transport aid. The reporter's questions indicated that charities have said they would like to have these spoken assurances in writing.