I Think This Is an Emergency, Or So It Has Been

Guest Post: Michael Rohrs is a counterterrorism intelligence analyst and consultant with BAE Systems. He is a member of Young Professionals in Foreign Policy and an occasional blogger on national security and foreign policy issues. The views expressed are his own.

I participate in a discussion group on international terrorism. The topic of tonight’s discussion is: the Office of Foreign Assets Control's (OFAC) ability to designate U.S.-based entities as ‘specially designated global terrorists.’ One of the preparation questions posed in advance (admittedly not one at the true heart of this debate) asks, “Eight years after 9-11, are we still in the midst of a ‘national emergency’ which is necessary to invoke the International Emergency Economic Powers Act (IEEPA)?”

The IEEPA, as defined by Adam J. Szubin in particularly lucid testimony,

…grants the President a broad spectrum of powers to deal ‘with any 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, if the President declares a national emergency with respect to such threat.’ The President typically exercises these IEEPA powers through Executive Orders that declare a national emergency and impose economic sanctions to address the emergency.

On September 23, 2001, President Bush issued E.O. 13224 which has been renewed every year since—including 2009. What should happen in 2010?

Regarding the above question, here are my preliminary thoughts on the issue as prepared for discussion:

I think we can all agree that in the years immediately following 9-11, the country was well within the designation of a state of national emergency; and as with DHS, emergency measures were hastily but necessarily taken to mitigate extreme circumstances. That said, the threat of a terrorist act being committed on U.S. soil—be it from without or originating within—has not, and in my opinion is not going away. Even further, if you believe Philip Bobbitt, this is only the leading edge of the inevitable. In that sense we are undoubtedly facing a threat to the national security, foreign policy, and economy of the United States, and rightfully in a national state of emergency.

The same flag, however, can justifiably be waved from the opposite shore; it is precisely the perpetual state of threat that nebulous, transnational terrorism poses—not only to the United States but also to Americans abroad and the democratic international community writ large—that negates “state of national emergency” designation. If you believe threats of irregular attack with intent to incite terror in the United States are imminent, indefinite, adaptive, and ongoing (regardless of whether you believe we are actually “at war” with terrorists or on terrorism) then the IEEPA as a designation reserved for unusual and extraordinary circumstances—which includes the implication that they’re temporary—no longer applies.

Adopting this conclusion, as I do, requires a fundamental revision of thinking. It’s no secret that bureaucracy in general and American bureaucracy specifically has difficulty reconstructing paradigms. No paradigm is more deeply ingrained in the United States and about which Americans are more sensitive, than individual—and by extension national—security. However, in order for the IEEPA label to be lifted, U.S. lawmakers with the CT, HS, MI, and Intelligence communities need to redefine the state of the union as it regards the (sober and realistic) threat of terror, and redraft sensible and timely legislation to deal with a changing threat environment; an environment in which combating terror financing is an essential part. Until the paradigm is redrawn and national attitude is adjusted accordingly, however, it is unwise, unsafe, and unacceptable to scale back our counterterrorism intelligence practices at the risk of the American people.

Finally, consider this question: Does the IEEPA extend beyond mitigating risks of the U.S. homeland and its citizens abroad to ensuring that the US is not in any way facilitating (unwittingly!) the financing of terrorist organizations and their operations anywhere in the world? Let us assume the target of a given terrorist organization is something other than Americans and/or American interests. If U.S.-based charities are serving as an avenue (be it merely a canal or as a hub), it remains our responsibility (especially ours!) to paralyze, penetrate, and prosecute these conduits of terrorism. The question remains, however, whether circumstances renders the IEEPA specifically applicable. If not, does a suitable and sustainable (remember the IEEPA is for extraordinary temporary circumstances) alternative statute exist? If not, are we not morally and axiomatically responsible to implement one?