Fixing “Material Support” — Lessons from the Houthi Terror Designation

Among the many foreign policy reviews and changes already underway in the new administration—from a review of the use of sanctions, to new limits on drone strikes, to cutting back U.S. support for the war in Yemen—the Biden team should work with Congress to implement another: a fix to the crude and cumbersome “material support” laws that make terror designations a nightmare for civil society groups operating abroad.

Last month, humanitarian, peacebuilding, and human rights groups dodged a bullet when the Biden administration wisely reversed a policy decision the Trump administration made on its final day in office—designating Ansar Allah, commonly known as the Houthis, as a Foreign Terrorist Organization (FTO) and a Specially Designated Global Terrorist (SDGT). But under the material support laws, existing and future designations mean that nonprofits working in conflict zones are still under the gun.

President Biden was right to reverse the designations. They were made over the strong objections of humanitarian aid organizations and foreign policy experts, who warned that the move would restrict the provision of aid to millions of people already facing war-induced famine in Yemen. While the Houthis are far from blameless in their conduct, the designations did nothing to alter their behavior or hold them accountable for it. Instead, the FTO and SDGT listings put up roadblocks to both aid and the peace process in Yemen. Had Biden allowed the designations to stand, nonprofits would have had to risk prosecution under federal laws that prohibit any “material support” to designated groups in order to carry out their missions in Yemen, where 80 percent of the population lives in Houthi-controlled areas.

This experience illustrates the confusing and tenuous situation under which nonprofit organizations operate when it comes to implementing programs in conflict zones and politically fraught environments. In the weeks leading up to the formal designation on Jan. 19, humanitarian groups rode a rollercoaster of confusion about what would be prohibited or allowed, facing the possibility that they would have to cease operations while they untangled the legal ramifications of continuing to proceed with their life-saving work. Because the Houthis serve as the de facto government in areas they control, routine payments such as payroll taxes for local employees or road tolls would become prohibited under the designations. There was an outcry from the humanitarian community as well as many career civil servants and international leaders who recognized the humanitarian disaster these designations would exacerbate and advised against them. Their voices fell on deaf ears. Civil society braced for the worst.

Concurrent with the designation, the U.S. Treasury Department, which has authority under the SDGT program but not the FTO program, issued four licenses to allow certain humanitarian and related activities. These licenses were met with some relief from the humanitarian community because they seemed to allow a broad range of activity and services. Several days later, with Biden in office, a fifth license was issued stating that all activity with the Houthis was permitted for one month, giving the new administration time to review the designation. It became apparent that the Biden administration was working hard to provide flexibility to the nonprofit community and civil society actors. In practice however, civil society groups working in Yemen were still unsure of their footing, and rightly so.

Because Treasury has no authority under the FTO program and cannot issue licenses for those designations, there was still the possibility that groups operating in Yemen could face federal prosecution under the material support statute, which is triggered by the FTO designation. Prosecutorial discretion lies with the U.S. Department of Justice, which has never issued written assurance that it will not bring a criminal action against legitimate aid organizations operating under a Treasury license. While the licenses offered some cover, reversing the designations was necessary to move these groups completely out of the legal line of fire.

While the Biden team should be commended for its swift and decisive action with respect to Yemen, as well as its recognition of the impact the designations would have on the scale of the humanitarian disaster, revoking the designations was a temporary and palliative fix to a broader problem. The vagueness in the laws makes it impossible for aid groups to understand precisely what is and is not allowed, particularly for the majority of groups that lack the legal staff to help them navigate the Byzantine set of rules. Thankfully, with a new administration and leadership in Congress that has signaled the need to revisit a host of 9/11-era laws and policies, we have an unprecedented opportunity to solve this dire problem.

Untangling Material Support

The material support statutes are embedded in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the International Emergency Economic Powers Act (IEEPA). Between Congress and the administration, these laws can and should be amended to remedy the problems they create for civil society groups and their life-saving programs.

Congress should amend AEDPA to ensure that interactions with designated groups that are customary, necessary, and incidental to the work of legitimate civil society organizations are exempt as long as they are carried out in good faith. It should also amend IEEPA to ensure that presidents cannot simply cancel humanitarian exemptions without good reason, as has been the habit and tradition over the past 20 years. The Biden administration should work with Congress to support these amendments, but it should also take steps on its own. The Secretary of State and the Attorney General should concurrently issue a notice approving of peacebuilding activities that are designed to reduce or eliminate the frequency and severity of violent conflict, or to reduce its impact on noncombatants. The Treasury Department should issue a general license for peacebuilding activities along these same lines. Finally, the president should issue an executive order restoring the humanitarian exemption in IEEPA that was effectively cancelled by previous executive orders.

Until we address the underlying and fundamental flaws in the material support statutes, these laws will continue to hinder – and in some cases prevent – global efforts to care for people, reduce conflict, and protect human rights. The goal of the material support legal regime—blocking support for violent extremism—is essential, but we must ensure these laws do not detract from the complementary goals of supporting humanitarian, peacebuilding, and human rights missions abroad. To disarm the threat, we must tackle the legal roots of the problem. We must fix the material support laws.

Image: International Red Cross and Red Crescent workers keep watch at an airport in the southern city of Aden, the interim seat of the Yemeni government, on October 16, 2020, as the war-torn country began swapping 1,000 prisoners in a complex operation overseen by the International Committee of the Red Cross. – Over 170 former prisoners of war were freed today on the second day of a landmark exchange between war-torn Yemen’s government and Huthi rebels, the International Committee of the Red Cross said. (Photo by SALEH AL-OBEIDI/AFP via Getty Images)

 

About the Author(s)

Paul Carroll

Paul Carroll (@PaulicyCarroll) is the Director of the Charity & Security Network, a resource and advocacy center working to promote and protect the ability of nonprofit organizations to carry out peacebuilding, humanitarian, and human rights missions and to advance national security frameworks that support rather than impede this work.