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Analysis

Congress Must Reform Sanctions Law

The International Emergency Economic Powers Act gives the executive branch too much power.

April 15, 2021
Exterior Views Of New International Criminal Court Building In The Hague.
Michel Porro/Getty Images

This origin­ally appeared in Just Secur­ity.

The Biden admin­is­tra­tion has finally rescin­ded the misguided Trump admin­is­tra­tion sanc­tions against Inter­na­tional Crim­inal Court (ICC) prosec­utors. This is a welcome reversal. The sanc­tions imposed severe finan­cial restric­tions on ICC Prosec­utor Fatou Bensouda and senior prosec­u­tion offi­cial Phakiso Mochochoko, and preven­ted Amer­ic­ans from work­ing with the Court. The impetus for levy­ing these penal­ties was ICC invest­ig­a­tions into poten­tial crim­inal acts in the Afgh­anistan conflict (includ­ing related CIA black sites) and in Palestine, which could ensnare Amer­ic­ans and Israelis. The U.S. govern­ment takes the view that States such as the United States and Israel, that are not parties to the ICC, should not be at risk of prosec­u­tion by the Court.

No matter the differ­ing views on the court’s juris­dic­tion, the use of sanc­tions in June 2020 to bully a 123-member inter­na­tional judi­cial insti­tu­tion was an egre­gious abuse of sanc­tions powers by the Trump admin­is­tra­tion. It also weakened U.S. national secur­ity by alien­at­ing allies, dimin­ish­ing global trust in the United States’ respons­ible stew­ard­ship of the inter­na­tional bank­ing system, and tarnish­ing its image as a supporter of account­ab­il­ity for mass atro­cit­ies.

But revers­ing these sanc­tions is not enough. Ending the ICC sanc­tions will be a tempor­ary victory at best if the next pres­id­ent can re-impose them, or engage in even more egre­gious abuses of sanc­tions powers, with the stroke of a pen. To prevent that from happen­ing, Congress must reform the Inter­na­tional Emer­gency Economic Powers Act (IEEPA).

Under IEEPA, a pres­id­ent has too much leeway. Sanc­tions can be wiel­ded to address any situ­ation deemed an “unusual and extraordin­ary threat, which has its source in whole or substan­tial part outside the United States, to the national secur­ity, foreign policy, or economy of the United States.” Under such broad criteria, the list of possible threats includes climate change, immig­ra­tion, trade, and prac­tic­ally anything on the inter­net. An organ­iz­a­tion or person some­how connec­ted to one of those issues could be sanc­tioned either as an actual threat or a polit­ical foil.

And Amer­ic­ans are at risk of becom­ing targets too. Noth­ing in IEEPA limits the reach of sanc­tions to foreign persons. Although the vast major­ity of targets are foreign govern­ments or foreign nation­als over­seas, the power to sanc­tion Amer­ic­ans is not merely theor­et­ical. After the 9/11 attacks, Pres­id­ent George W. Bush sanc­tioned a number of Muslim Amer­ican char­it­ies and indi­vidu­als on suspi­cion of support­ing terror­ism. In some of these cases, the targets were sanc­tioned even before the govern­ment determ­ined they qual­i­fied. In those instances, the govern­ment relied on an IEEPA provi­sion  that was included through the USA PATRIOT Act, and that allows IEEPA targets to be “blocked pending invest­ig­a­tion.” The 9/11 Commis­sion reviewed some of these actions and determ­ined they raised “substan­tial civil liberty concerns,” but the provi­sion remains in the stat­ute.

The main curb on abuses of IEEP­A’s sweep­ing sanc­tions powers is a pres­id­ent’s forbear­ance, but as the last admin­is­tra­tion, in partic­u­lar, showed, self-restraint is a weak surrog­ate for substant­ive restric­tions. Even though the pres­id­ent’s powers to sanc­tion through IEEPA were gran­ted by Congress, under the current regime, Congress would need to muster a veto-proof major­ity to termin­ate a sanc­tions program.

Nor do the courts offer a mean­ing­ful avenue for redress. If a sanc­tions target brings a suit to chal­lenge the U.S. govern­ment’s decision to sanc­tion them, the only evid­ence the court can look at is the record compiled by the govern­ment—which can include all sorts of inform­a­tion that might not normally be allowed as evid­ence, includ­ing hearsay. Moreover, also thanks to a change to IEEPA imple­men­ted by the USA PATRIOT Act, the govern­ment can rely on evid­ence that the target never gets to see or address. The court must uphold the govern­ment’s decision as long as it wasn’t “arbit­rary or capri­cious.” But the criteria for partic­u­lar sanc­tions, as estab­lished in the pres­id­ent’s exec­ut­ive order that creates the partic­u­lar sanc­tions program, are not subject to judi­cial review. Dele­ter­i­ous human­it­arian impacts, such as ordin­ary civil­ians’ inab­il­ity to obtain medical supplies or rebuild infra­struc­ture, and a lack of trans­par­ency, are also prob­lems.

But sanc­tions can, in appro­pri­ate circum­stances, be power­ful tools for good as well. For instance, targeted sanc­tions under the Global Magnit­sky Act (which also rely on the IEEPA) have put pres­sure on human rights abusers and corrupt actors. Sanc­tions also permit­ted a relat­ively rapid reac­tion to the recent coup in Myan­mar by target­ing senior milit­ary figures, although as yet it would be diffi­cult to identify any concrete improve­ment in conduct occa­sioned by those sanc­tions.

Fortu­nately, retain­ing and strength­en­ing the useful aspects of sanc­tions, and redu­cing the possib­il­ity for abuse and harm­ful side effects, are not incom­pat­ible goals. Indeed, they may be mutu­ally rein­for­cing. Sanc­tions that are narrowly and respons­ibly targeted can be effect­ive without deny­ing due process to Amer­ic­ans or human­it­arian aid to vulner­able popu­la­tions over­seas. And shor­ing up Congress’ role as a check against pres­id­en­tial abuse could actu­ally enhance sanc­tions’ effect­ive­ness. A more care­fully controlled and monitored set of sanc­tions powers would likely result in greater support both domest­ic­ally and inter­na­tion­ally, and there­fore further contrib­ute to U.S. secur­ity.

The Biden admin­is­tra­tion has commit­ted to a thor­oughgo­ing review of the use of sanc­tions. But Congress also has some reflect­ing to do. It is the only body that can reform IEEPA to insti­tute mean­ing­ful checks, such as a require­ment that Congress approve new sanc­tions programs within a certain period of time. Enhanced proced­ural safe­guards for targets, human­it­arian protec­tions, and more rigor­ous over­sight provi­sions are also needed. During her confirm­a­tion hear­ings, Treas­ury Secret­ary Janet Yellen stated that she wanted to make sure sanc­tions were used “stra­tegic­ally and appro­pri­ately.” Congress can help ensure that happens in this admin­is­tra­tion, and in future ones, through reform of IEEPA.