'No tea for terrorists': How counterterror laws hamper NGOs

In 2005, Liz Hume worked as a senior conflict adviser at the U.S. Agency for International Development with a secretariat set up to broker peace during a post-tsunami cease-fire between the Sri Lankan government and the Liberation Tigers of Tamil Eelam, or LTTE. LTTE had been fighting the Sri Lankan government for decades and was on the U.S. list of foreign terrorist organizations, or FTOs, meaning no organizations or groups receiving U.S. funding could interact with it. If they did, they would run afoul of U.S. criminal statutes that prohibit “knowingly providing material support or resources to a foreign terrorist organization.” But the legal definition of “material support” was so broad it hampered the peace process by making it nearly impossible for peace builders to engage with members of LTTE. “What I’d been told when I was in the U.S. government at USAID: ‘No tea for terrorists, Liz.’ You can’t even sit and have tea. That’s considered providing material support,” said Hume, who is now acting executive director at the Alliance for Peacebuilding. “I remember talking to people, our partners that were working there that we were funding. I was like: ‘I swear to God, if I hear you were talking to the LTTE — no tea, are we clear about that? Because I’m not going to jail for this,’” Hume said. “You couldn’t go near them. … You couldn’t even have a conversation with them.” Little has changed in the years since the 9/11 terrorist attacks, which have shaped nearly all aspects of U.S. foreign policy. National security laws such as the 2001 USA Patriot Act still dictate how development and humanitarian organizations must tread in contexts where FTOs are present. Two decades on, NGOs and peace-building groups say it is finally time to overhaul the array of criminal statutes that severely restrict their ability to operate in environments where an FTO is party to a peace process or controls significant amounts of territory in which humanitarian assistance is needed. The laws have restricted peace builders’ ability to work with groups ranging from the Revolutionary Armed Forces of Colombia to Maoists in Nepal or on efforts such as disarmament, demobilization, and integration of child soldiers in the Central African Republic. Sanctions regimes, while separate from the material support legislation, also pose intense legal worries for organizations operating in such contexts — most recently causing concern about severe aid disruptions when former President Donald Trump’s administration designated Ansar Allah, better known as the Houthis, as a foreign terrorist organization just before it left office. “Nobody had bad intentions when they were writing these laws. ... But now, let’s look back and say: ‘Huh, have we hindered our work? Have we helped our work? Have we created unnecessary burdens? Do we know a lot more about what’s driving violent conflict and violent extremism?’” Hume said. “We have a better understanding of how to prevent it and reduce it from a development perspective, conflict prevention perspective. Don’t make it so incredibly draconian.” Complex remedies Because the material support statutes are criminal law written into bills passed by Congress, only additional legislation can permanently modify them to provide a wider and clearer range of exceptions for development and humanitarian work. While some members of Congress, such as Sen. Patrick Leahy, have recognized the roadblocks created by the current laws, many don’t have the political space to support amending terrorism legislation to benefit development and humanitarian operations. “I would say if you run the risk of being viewed as soft or weak on terorrism, that’s a problem for you politically,” said Paul Carroll, director at the Charity & Security Network. “Any effort to change the law or have Congress address an existing law of course takes time — and often a really long time.” Currently, groups can get exemptions by applying for a license from the U.S. Treasury Department, which monitors compliance. The Office of Foreign Assets Control, or OFAC, can issue a license for a particular person for a particular project that programmers fear could be interpreted as violating counterterrorism law. But obtaining this license is onerous and usually an option only for larger organizations with budget and staff members to spare. It also delays project implementation — if organizations even feel comfortable moving forward. For many, Carroll said, the license still isn’t considered enough of a legal shield against potential prosecution. A State Department official who was not authorized to speak on the record said the process could be “personality driven,” with OFAC issuing licenses based on the interpretation of the law and discretion of political appointees at both Treasury and State. The official said there are also frequent clashes between State Department bureaus and the Office of the Legal Adviser over what programs should be permitted under the statutes and how to mitigate risk. “Nobody had bad intentions when they were writing these laws. ... But now, let’s look back and say: ‘Huh, have we hindered our work?’ … Don’t make it so incredibly draconian.” --— Liz Hume, acting executive director, Alliance for Peacebuilding The Treasury Department did not immediately respond to an interview request about the OFAC licensing process. USAID denied an interview request to discuss how it navigates the material support regime, saying in a statement that “USAID has developed due diligence systems to help ensure that humanitarian assistance reaches those for whom it is intended.” At a State Department event in January 2020, Rob Jenkins, acting assistant administrator at the Bureau for Conflict Prevention and Stabilization, alluded to the difficulty USAID faces in obtaining OFAC licenses. “The legal issues are many and varied,” Jenkins said. “I am enough of a bureaucratic geek that I literally have an OFAC license framed on my office wall.” He said the murkiness surrounding the laws needs to be resolved, particularly in how they relate to affiliates of terrorist organizations that may be present in stabilization settings where USAID is programming. “We have no legal definition for ‘affiliate.’ Therefore we have no legal guidelines on what we can do, how [we can] touch them,” Jenkins said. “That’s really boring — getting a bunch of lawyers together to come up with a definition. But we need to do that because we’re working with affiliates or we’re not being allowed to work with affiliates in a lot of these places.” Government entities, meanwhile, that seek an exemption to material support statutes for particular programs carried out by their bureaus can apply through the State Department, which requires any bureau involved in such a project to send a memo with an exemption request to the secretary of state. According to the State Department official, no exemption has been issued since John Kerry was secretary of state. Outside of legislative adjustments, President Joe Biden’s administration could provide some leeway for groups that operate near or want to engage with FTOs by making clear it wouldn’t go after those working in good faith. During former President Barack Obama’s administration, the Justice Department issued a memo indicating the administration would not prosecute people or organizations engaged in work countering violent extremism. But Joel Charny, executive director at the Norwegian Refugee Council USA, said that was “simply not good enough.” ”We’d have meetings with Obama officials related to Somalia, for example, and we’d be told, ‘Don’t worry, we’re not going to go after you,’” Charny said. “I can’t stress strongly enough: We need rock-solid legal protection.” Some groups were already wary of accepting executive exemptions in lieu of a rewriting of the criminal statutes due to a 2010 Supreme Court case challenging the constitutionality of the Antiterrorism and Effective Death Penalty Act, which prohibits material support. The court ruled that six organizations that sought to provide training on nonviolent conflict resolution to two groups designated as FTOs would have indeed violated U.S. law. An overzealous approach An attitude of what Carroll called “overcompliance” has also bled into the international system, affecting United Nations organizations and international NGOs, as well as private sector groups such as banks and shipping companies. Any entity using the American financial system must comply with U.S. law, including sanctions. Charny said that NRC has faced increasing difficulty with its banking over the past several years, with even routine transactions — that have nothing to do with a country where potentially sanctioned entities may be operating — getting held up or blocked entirely because NRC does separate work in other locations where terrorist groups are present. The Department of Justice declined to comment on how it determines when to pursue a legal case against a person or organization for violating material support laws. Organizations also face cumbersome bureaucracy with a required vetting process meant to ensure no program is unwittingly benefiting a terrorist organization. Before programming can take place, the State Department must vet potential participants name by name, at a cost of $375 per person, through its Risk Analysis and Management, or RAM, mechanism. A 2018 Office of Inspector General report detailed a host of issues with the vetting process, finding it “not sufficiently transparent and responsive to user needs and concerns.” Organizations that implement USAID programs have complained that the RAM process is time-consuming and costly, eating up precious budget and programming time in sensitive contexts. Easing these barriers would require attention from the highest levels, the State Department official said. “I would expect this administration would have to face this down at some point,” the official said. “It’s going to require a very senior person who understands the issue — or at least understands that they need to have a team put together to solve the issue — because as it is, there are too many things running amok that aren’t being addressed to fix it.” Development and humanitarian organizations say that the Biden administration needs to make clear that it would support congressional action to amend counterterrorism laws. “There are opportunities, though, for the administration to take action, show real steps forward on this issue without having to wait for congressional movement,” said Ursala Knudsen-Latta, legislative representative for peace-building policy at the Friends Committee on National Legislation. “Cleaning up some of those bureaucratic hurdles could be helpful, but it all comes down to risk management from the [U.S. government’s] side. I get it: They don’t want to be seen to accidentally support a terrorist organization. But there is a middle ground that we can come towards.”