The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters

[CarrieLyn Donigan Guymon is Adjunct Professor at Golden Gate University School of Law]

I would like to thank Opinio Juris and the staff of VJIL for providing this forum to discuss my recent article, The Best Tool for the Job:  The U.S. Campaign to Freeze Assets of Proliferators and their Supporters.
I started the article in the waning months of the Bush administration, but thus far the Obama administration appears to agree with my thesis that the past administration’s practice of freezing the assets of proliferators and their supporters is one worth perpetuating.  Between June 2005, when President Bush signed Executive Order 13,382 (the authority for imposing the asset freeze and related measures), and January 2009, when he left office, 135 entities and individuals were designated for these sanctions.  The Obama administration has already made a significant number of additional designations under E.O. 13,382.
This is actually a pretty sparing use of a very broad authority granted by the International Emergency Economic Powers Act, or IEEPA.  President Clinton was the first to use IEEPA in a more targeted way, against terrorist organizations and their members versus countries and their citizens.  President Bush went one step further by targeting not only terrorists, but also those who aid or abet terrorists or terrorism.  Bush then replicated that pattern of addressing support—particularly financial support—with respect to WMD proliferators and proliferation.  While terrorism and proliferation are undeniably grave threats to the United States, they are not a perfect fit for the authority envisioned by Congress when it passed IEEPA.  Congress intended IEEPA to be used by the President to address rare and brief emergencies, not such enduring issues on the U.S. agenda as terrorism and the proliferation of WMD.
The Bush administration attempted to make multilateral its unilateral asset freeze sanctions via the U.N. Security Council.  Resolutions directed at North Korea’s and Iran’s nuclear and weapons programs resemble E.O. 13,382 in targeting for asset freeze sanctions not only the proliferators themselves, but those who provide support (financial or otherwise) for proliferation or are owned or controlled by proliferators.  Resolutions 1718 (directed at North Korea) and 1737, 1747 and 1803 (all directed at Iran) have been implemented by the United States using E.O. 13,382.  In the case of Iran, the U.S. often justifies its designations of entities and individuals under E.O. 13,382 based on their presence on Security Council lists (or their relation to those on those lists).  And the U.S. also advocates the addition to the Security Council’s lists of entities already designated by the U.S. under the E.O.  With the private sector’s voluntary shunning of entities designated by the U.S., there is an argument that multilateral designation is almost a fait accompli.
This sanctions strategy toward proliferation has met with criticism both for doing too little and for going too far.  Many would prefer harsher sanctions on Iran in particular.  Others worry that freezing assets and blacklisting individuals and entities in this way denies those designated their rights to due process.
These sanctions actually strike the correct balance.  And attempting to make them multilateral also makes sense—the United States cannot go it alone when confronting the threat of proliferation.  The U.S. taking a stand that it will not allow its financial system to be accessed by proliferators, while asking others to do likewise, is the right thing—and the best thing—to do.  Legal challenges to the same approach with respect to terrorism—surveyed extensively in the article—have been unsuccessful.  Due process is not seriously infringed by targeted sanctions and it cannot be absolute in the face of the grave threat posed by proliferation.  While it is troubling that the national emergencies presented by terrorism and proliferation seem unlikely to ever be declared over, judicious use of the broad authority under IEEPA assuages that concern.