International Economic Sanctions: Improving the Haphazard U.S. Legal Regime

The United States has resorted increasingly to economic sanctions as a major tool in its foreign policy. Recent targets include Panama, South Africa, Nicaragua, Libya, the Soviet Union, Poland, and Iran. These sanctions encompass controls on government programs (such as foreign aid), US. exports, imports, private financial transactions, and assistance by international financial institutions. In this Article, Professor Carter demonstrates that the present US. legal regime governing the use of sanctions for foreign policy reasons is haphazard and in need of reform. Current US. laws provide the President with nearly unfettered authority to cut off government programs and exports, but very little nonemergency authority in other areas, such as the regulation of imports and private financial transactions. This imbalance either skews presidential decisionmaking toward the use of easily imposed sanctions that might not be in the best interests of the United States, or encourages presidential declarations of dubious national emergencies to invoke his sweeping emergency powers. Professor Carter proposes thoroughgoing but selective reform of the present legal regime. He recommends correcting the disparity in the President\u27s nonemergency authority by substantially increasing the President\u27s authority over imports and private financial transactions, while reducing the control over exports. He also proposes trimming the President\u27s ability to employ emergency powers for imposing economic sanctions

Bank Liability Under the Antiterrorism Act: The Mental State Requirement Under § 2333(a)

This Note specifically addresses the jurisdictional split on the mental state requirement necessary to hold a defendant liable under the ATA. This Note explores the current judicial interpretations of the statute and concludes that, as the statute stands, the Second Circuit best interprets the mental state requirement for § 2333(a) claims predicated on a violation of material support laws. This Note proposes, however, that Congress should amend the ATA to clarify the state-of-mind requirement and should only allow for a cause of action where a bank manifests heightened culpability through intentional wrongdoing in the provision of financial services to foreign terrorist organizations

Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’

Material support has become the watchword of the post-9/11 era. Material support to groups that have been designated as terrorist has been the U.S. government\u27s favorite charge in post-9/11 terrorism prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a war crime. This essay argues that the criminalization of material support to designated terrorist organizations is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing \u27material support\u27 for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts. The essay concludes by explaining how the material support laws fit into the United States\u27 broader paradigm of prevention in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past wrongdoing. But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm

The Perilous Dialogue

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in Britain. In the United States, we tend to treat “security” and “freedom” as distinct phenomena: policy considerations set against pre-existing, political rights. Security becomes linked to decisions taken by the executive to preserve life—e.g., heightening protection against terrorist attacks by restricting entitlements specified in the Bill of Rights. Thus, Judge Richard Posner argues that in dangerous times, we must adjust constitutional rights to meet the demands of security. Professors Adrian Vermeule and Eric Posner propose “a basic tradeoff between security and liberty.” As Professor Holmes points out, the tradeoff framework is not limited to those who come down more heavily on the security side of the equation; civil libertarians also refer to the framework, arguing for the protection of rights in the face of security demands. In the United Kingdom, in contrast, scholars and policy makers tend to consider security versus freedom as a case of competing rights: the right to life or the right to freedom from fear set against the right to move freely. As Prime Minister Tony Blair announced on 9/11, the exercise of state power would be necessary to protect “the basic civil liberty that people have to go about their business free form [sic] terror.” This framing—competing rights in tension—reflects Britain’s constitutional structure. Measures introduced by Parliament do not have to conform to a written constitution. While some documents, such as the 1215 Magna Carta, or the 1689 Bill of Rights, carry special significance, they are part of a broader system that encompasses legal and non-legal rules. The multiplicity and fluidity of rights, and the constant effort to balance them, reflect Britain’s relationship with Europe, where the European Convention on Human Rights (incorporated into British domestic law through the 1998 Human Rights Act) and European Communities law weave together to create a complex system of rights and rules protecting them. Despite the manner in which the United States and United Kingdom interpret “security or freedom,” reflective of their respective constitutional differences, in both countries the dichotomy between rights and security dominates the counterterrorist discourse. And in both regions, because the dichotomy ignores in its narrow terms of reference the far-reaching effects of counterterrorism, it stifles the debate. The “hydraulic” assumption inherent in the “security or freedom” framework overlooks the possibility that rules—indeed, the rule of law itself—provide security. There are multiple types of securities and liberties at stake. And the framework distorts the “real tradeoffs” that are being made, such as the risks inevitably entailed in the allocation of limited resources. Most importantly, “security or freedom” fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. This article suggests that at each point where the legislature would be expected to push back against the executive’s power—at the introduction of measures, at the renewal of temporary provisions, and in the exercise of oversight—its ability to do so is limited. The judiciary’s role is similarly restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at anything but the margins. With the long-term political and economic effects of this expanded executive strength masked by the immediacy of the “security or freedom” dichotomy, the true costs of anti-terror legislation in the United States and in the United Kingdom have gone uncalculated. Over the past four decades, both countries have seen the relationship between governmental branches altered, individual rights narrowed, and the relationship of the citizens to the state changed. Counterterrorist law has alienated important domestic and international communities, created bureaucratic inefficiencies, and interrupted commercial activity. As these two countries set global counterterrorist norms through important multilateral and bilateral organizations, such as the United Nations (“UN”), the UN Security Council, the G7/G8, and the Financial Action Task Force, the risk increases that these detrimental effects will be transferred to other constitutional democracies. American and British provisions, moreover, have evolved outside the specter of terrorist groups actually using weapons of mass destruction to inflict mass casualties. The proliferation of weapons of mass destruction—and I would add biological weapons to Professor Holmes’s concern about fissile material—together with a growing willingness on the part of extremists to sacrifice themselves, may drive the two countries to take increasingly severe measures. Such provisions could lead to a shift in the basic constitutional structure of both countries

Ordered Liberty and the Homeland Security Mission

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant review to decision-making–-all of which depend on the integrity and judgment of government lawyers. Meaningful oversight protects our way of life. It also protects our security by helping decision-makers get it right on the front end of a decision, rather than investigating on the back end. This model does not detail whether civil service rules should apply to the Homeland Security Department, or whether military commissions are a good idea. The paper will suggest some principles and lessons learned that can be applied to such questions. In the process, two false dichotomies will hopefully be debunked: first, that security and liberty conflict; and, second that oversight and security conflict

Free Speech and National Security Bootstraps

It is troubling that courts treat administrative designations—specifically, both FTO determinations and information classification—as bootstraps by which to yank speech restrictions from the clutches of probing judicial scrutiny. This Article builds on existing scholarly critiques to identify and examine the common thread of national security bootstrapping that runs through both sets of cases. The hope is that in so doing, some greater light may be shed both on the cases themselves and, more broadly, on the costs and benefits of judicial deference to executive national security claims where civil rights and civil liberties are at stake

Taking \u3ci\u3eSteel Seizure\u3c/i\u3e Seriously: The Iran Nuclear Agreement and the Separation of Powers

This Article examines the constitutional validity of President Obama’s decision, as part of his 2015 agreement with Iran, effectively to repeal seventeen different sanctions provisions for the fifteen-year life of the agreement. Although Congress had legislated extensively in this area, the President effected this change by entering into a “nonbinding political agreement” with Iran and by aggregating individual waiver provisions in the sanctions laws into an across-the-board waiver of sanctions. We argue that the commitments made by the President in the Iran agreement violate a fundamental separation-of-powers limit on executive power—what we term the Steel Seizure principle,” after Youngstown—the Steel Seizure case. As the U.S. Supreme Court reaffirmed in Steel Seizure, the President does not have lawmaking power even where national security and foreign relations concerns are at stake. A vast literature has grown around Steel Seizure, especially its influential concurring opinion by Justice Robert Jackson. Yet relatively little attention has been paid to the majority view of the Justices that President Truman’s seizure order was unlawful not because it contravened any express statutory prohibition but because it flouted the congressional “plan” for addressing the particular policy issue. This aspect of Steel Seizure highlights what is particularly problematic about President Obama’s decision to aggregate authorities in the sanctions laws and to commit the United States to an across-the-board waiver of nuclear-related sanctions pursuant to his agreement with Iran. President Obama treated the waiver provisions as an invitation to end the congressionally prescribed sanctions regime for addressing Iran’s nuclear weapons program and to replace it with his own nonsanctions regime for addressing the same issue. Yet the President lacks the unilateral power to overturn Congress’s prescribed policy and to replace it with his own.The President can be viewed both as an agent and, particularly in the foreign relations area, as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President’s role in foreign affairs. Once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the President’s role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the President to seek new legislation each time flexibility was needed. It did not, however, invite the President to override the sanctions framework altogether. An emergent literature in administrative law and U.S. foreign relations law has praised Congress’s willingness to delegate waiver authority to the President for providing needed flexibility and other policy benefits. Yet that literature recognizes that the President’s exercise of waiver authority must be carefully circumscribed to avoid enabling the President effectively to revise a statutory regime out of disagreement with Congress’s policy choices. Such limiting principles are no less necessary in the foreign affairs context, where President Obama used purported waiver authority in the Iran sanctions statutes to pursue his own policy in defiance of Congress

Overview and Operation of U.S. Financial Sanctions, Including the Example of Iran

Financial sanctions are increasingly being used in the mix of international economic sanctions being employed by the United Nations, regional entities, and individual countries, including the United States. These financial sanctions have become more focused and effective as the tools and techniques have improved significantly for tracing and identifying the financial transactions of terrorists, weapons proliferators, human rights violators, drug cartels, and others. These sanctions can not only freeze financial assets and prohibit or limit financial transactions, but they also impede trade by making it difficult to pay for the export or import of goods and services. In spite of this growing impact of financial sanctions, these sanctions are not well understood outside of a small group of experts. This article provides an introduction to the mechanics and operation of U.S. financial sanctions, and it illustrates their use against Iran