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To deliver more help to a lawless land, aid groups are wrangling with legal strictures in their own backyard as the mounting crisis in famine-struck Somalia intersects with U.S. anti-terrorism laws. The U.N. estimates that thousands have died, and that 3.7 million people in Somalia are in need of assistance—some 2.2 million of them living in regions controlled by al-Shabab, a designated terrorist group that has been linked to al Qaeda. On Thursday, U.S. Secretary of State Hillary Clinton called the effects of drought and famine throughout the Horn of Africa “the most severe humanitarian crisis in the world today.” Clinton announced an additional $17 million dollars of aid, atop a $105 million U.S. pledge. But the U.N. is saying it is half-a-billion dollars short of current needs, and private relief groups in the U.S. are saying they want to do more—and can’t without incurring legal risk. Government entities U.S. Agency for International Development (USAID), the Department of State, their contractors, and grantees have been authorized to deliver assistance in Somalia, even if that means “engaging in transactions” with al-Shabab. However, a consortium of major non-governmental organizations (NGOs) is pressing U.S. policymakers for more clarity and more leeway: can aid groups operate in areas controlled by al-Shabab without fear of violating U.S. laws against providing material support to terrorists? InterAction, an organization bringing together several non-profit aid groups, sees the potential for legal risk stemming from possible payments, fees, and consultations that al-Shabab may demand in order for the groups to carry out their work. “The realities are, that it is very likely. . . that these types of interactions will occur,” said Eric Johnson, associate general counsel of CARE USA, a humanitarian organization that fights global poverty, in a teleconference this week. In the teleconference, and in a separate phone interview, Johnson stressed that the NGOs do no want to violate U.S. law and that they need more legal assurance than they currently have in order to program relief efforts. For that reason, InterAction is petitioning the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) for a general license that would give them wider latitude to conduct operations in southern and western Somalia. Without further guarantees, these NGOs say, they cannot tap the coffers of foundations and corporations. “Money from private sources and European donors is not covered by the [current] provisions,” Johnson said. The aid situation in Somalia, a country that has been without a stable government for 20 years, stands in sharp contrast to Haiti, which received a flood of corporate aid donations after the devastating January 2010 earthquake. So far, USAID and the State Department have been granted the widest latitude to deliver aid. Questions about the scope of the restrictions have been swirling since White House officials indicated that restrictions would be eased. As the Washington Post reported on August 1: “The situation has posed a dilemma for the Obama Administration. According to experts on Somalia, if the regulations are relaxed, it is inevitable that some aid will be siphoned off by al-Shabab.” On August 3, Vermont Senator Patrick Leahy addressed a letter to Secretary Clinton and Attorney General Eric Holder, expressing his concerns that “the current interpretation of the law governing material support for terrorism is prohibiting organizations from delivering essential humanitarian relief in the Horn of Africa.” Leahy went on to say that the “overly broad law. . . imposes unintended constraints on legitimate humanitarian assistance efforts.” The following day, August 4, Treasury released an FAQ on private relief efforts—the most current public guidelines on the matter. The document allows for the State Department, USAID, their contractors, and grantees to “engage in certain transactions in the conduct of their official assistance activities in Somalia.” Private entities who do not come under those parameters are also allowed to make payments to al-Shabab only if it occurs “unintentionally.” But the document specifies that “to that extent that an organization is facing demands for large or repeated payments in al-Shabaab-controlled areas, it should consult with OFAC prior to proceeding with its operations.” But InterAction sees a strong possibility that they would have to account for al-Shabab demands in advance, and that the current guidelines do not speak to the likelihood of “al-Shabaad control, interaction, influence, etc., over our work.” This is a gray area in general for humanitarian groups, says development and disaster response expert Peter Walker, director of the Feinstein International Center at Tufts University. “The notion of what is ‘material assistance’ becomes really murky,” Walker says. He carries out work in the Sudan—a country also on the State Department’s restricted list—with a specific license that spells out the location and nature of the work, and the details of any cash changing hands. A general license does not require the same level of detail. The ongoing dilemma that the U.S. government and humanitarian groups face is, Walker says, “How do you operate in a way that maximally serves your purpose and minimally serves” that of a terrorist organization? At press time, there was not an update on the status of the InterAction petition.

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