 |
| Irwin |
In the wake of President
Bush’s re-election, the war on terrorism and the reconstruction
of Iraq and Afghanistan continues unabated. Contractors working
in Iraq and Afghanistan face tough challenges, including an
increasingly perilous security environment, coupled with much
public scrutiny worldwide. But on top of that, working in
the region often involves dealing with a difficult overlay
of U.S. sanctions, laws and regulations.
Few people are aware of the
complexity and broad scope of such sanctions and many do not
appreciate the fine efforts by many companies to adhere to
these rules in a most challenging environment. Economic sanctions
remain at the forefront of the war on terrorism, as shown
by the implementation of sanctions against Syria last year,
lifting of sanctions against Libya for apparent "good
behavior" and possible heightened sanctions against Iran.
And, as a technical matter, Iraq also remained sanctioned
for some time after the initial U.S. military action.
Greater Reliance
Sanctions represent an increasingly important element of
U.S. foreign policy. But they are not just an academic proposition
and tool of statecraft, they are a complex reality of reconstruction
work. Contractors unwittingly can get caught in the middle
as they try to meet the special, dangerous and pressing needs
of reconstruction and still meet the letter of U.S. law.
Fortunately, contractors are taking
steps to comply with the rules and U.S. regulators likewise
are acting responsibly in addressing the needs of the reconstruction.
Iraq is a good example. Because
Iraq remained sanctioned well into the initial military campaign,
it was subject to a number of export control restrictions.
Many contractors initially needed licenses for relatively
rudimentary equipment and supplies despite the immediacy of
the reconstruction efforts. Fortunately, Iraq no longer is
sanctioned and the export control environment, while not necessarily
"easy," is more permissive than a year ago. The
Bureau of Industry and Security at the Commerce Dept. now
has a process by which contractors can apply for a "Special
Iraq Reconstruction License."
Terrorist Lists
Apart from export controls, the U.S. government, through
the Office of Foreign Assets Control at the Dept. of the Treasury,
still has in place strict sanctions regarding working with
Specially Designated Nationals.
SDNs are thousands of persons and
entities throughout the world who have been designated as
terrorists or supporters of terrorists (or narcotics traffickers).
Any substantive contact with them is a possible violation
of U.S. law, potentially subjecting the violator to criminal
penalties, not to mention bad publicity.
Because many people and firms want
to get in on the reconstruction action, reconstruction contractors
in particular need to have mechanisms to screen potential
partners against the SDN list.
These laws apply independently
to all U.S. persons anywhere in the world and there are separate
clauses in federal contracts that specifically apply these
requirements to the reconstruction.
The screening is not easy because
of the way the list is published. It often is possible for
contractors to have "false matches" that require
further research. But compliance makes sense from many views
because contractors surely don’t want the added threat
of working with SDNs.
Logistics and sourcing channels
are made far more complicated as a result of sanctions against
Iran and Syria. Contractors in Iraq, in particular, have to
contend with many thousands of miles of border adjacent to
sanctioned territory. They had to develop strategies to ensure
that work gets done quickly and well, but doesn’t violate
U.S. law.
Under such conditions, one easily
could imagine that compliance with U.S. sanctions rules would
go by the wayside. But that doesn’t appear to be the
case. And with all of the criticism and scrutiny surrounding
reconstruction efforts, this is one piece of good news that
deserves mention.
Andrew D. Irwin is a government
contracts and export control lawyer
with Steptoe & Johnson LLP in Washington, D.C.
He can be reached at www.steptoe.com or (202) 429-3000.
|