"The complex legal prohibitions and web of U.S. government lists and regulations create a troubling climate of instability and unpredictability for aid groups,” finds a November 2011 report from the Center for American Progress. Unintended Roadblocks: How U.S. Terrorism Restrictions make it harder to Save Lives, explains how sweeping counterterrorism measures (CTMs) and lack of clear guidance from the U.S. government over the past decade has restricted the work of aid groups overseas. It recommends a comprehensive approach “to roll back more than a decade of overly broad legal definitions and ad hoc agency positions,” including amending the legal authorities behind many of the measures (e.g. the material support statute and Executive Order 13224), scrapping USAID’s Partner Vetting System, and engaging in meaningful dialogue with U.S. civil society to find a better way forward.
“[O]ver the last decade, the United States has developed an increasingly complex, multilayered web of legal restrictions, administrative regulations, agency policies, executive orders, and contract-based donor requirements. The combination of legal and policy tools creates a regulatory regime—enforced by the Departments of Treasury and Justice—that is simultaneously specific, vague, and poorly defined,” says the report. Taken together, these CTMs have had a far-reaching effect on how and where U.S. aid groups can work, created unnecessary administrative red tape and reduced their impact on meeting the needs of people living in global conflict zones or places where designated terrorist groups control territory.
Emphasizing that humanitarian groups are not interested in supporting terrorism, the report says ambiguously defined laws create fear of draconian sanctions. This is most apparent in regard to the laws that prohibit “material support” to designated terrorist groups. These laws make it a crime to provide anything to these groups besides medicine and religious materials, regardless of the intent or nature of the support. According to the report, “aid groups often find themselves trapped between a rock and a hard place,” wanting to be able to help people in need, but unable to do so “because of the potential for such assistance, tangible and not, to become criminalized.”
The lack of clear guidance from the U.S. government on what constitutes illegal “material support” of terrorism also impacts overseas programs, resulting in inability to reach millions of people in need and delayed or limited delivery of services. The report cites examples from Somalia after famine was declared in July 2011, the 2004 tsunami in Sri Lanka and territories controlled by groups on the terrorist list, such as Gaza and portions of Lebanon.
The report says “The U.S. government’s response to the legal ambiguity posed by the material support statute in particular is ad hoc rulemaking and inadequate policy guidance- not concrete legislative clarifications. Such reactive methodology ends up being subject to individual – and often unhelpful- interpretations of the law given the range of agencies involved ….Indeed, the system serves bureaucrats far better than anyone else by operating so opaquely. They can make decisions about what is feasible and what is not without any justification or explanation.”
The widely criticized USAID Partner Vetting System (PVS) is another problematic CTM critiqued by the report. Currently in operation in Gaza and the West Bank, and slated for a five country pilot in 2012, PVS would require groups receiving USAID money to collect and turn over the U.S. government detailed personal information about their board members and key employees, and more problematically, of their local partner organizations in countries where programs operate. This undermines the neutrality of aid organizations, and as the report points out that the program, meant to prevent diversion of aid to terrorists, “has poorly defined goals and is overly burdensome.”
The report recommends the following:
- “Ensure USAID participates in all U.S. terrorist designations
- Amend the International Emergency Economic Powers Act
- Amend the material support statute
- Amend Executive Order 13324 and related orders
- Expedite the issuance blanket licenses for urgent cases
- Scrap the partner vetting system
- Consult regularly with nongovernmental organizations to determine the likely impact of any terrorist designation
- Compile empirical data for a report that would examine how field operations are affected by current laws and policies and whether the current approach to terrorist designations is the most appropriate tool
- Craft a more flexible policy framework.”