Reflecting the thaw in United States–Sudan diplomatic relations, the U.S. Government announced on October 6, 2017 that it would permanently revoke certain economic sanctions against Sudan, effective October 12, 2017. Following the lifting of those sanctions imposed by the Office of Foreign Assets Control (“OFAC”) which were imposed by the President’s November 1997 Executive Order 13067, U.S. persons are no longer prohibited generally from engaging in transactions that were previously prohibited without an OFAC license under the Sudanese Sanctions Regulations (“SSR”). Sudan remains, however, designated on the U.S. Department of State’s State Sponsors of Terrorism List, along with Iran and Syria. The Trump Administration has not indicated whether the terrorism designation of Sudan will change in the near future.

That being the case, now is a good time to ask: How and why does the Department of State/Directorate of Defense Trade Controls (“DDTC”) (a) treat Sudan differently under the International Traffic in Arms Regulations (“ITAR”) than the other designated state sponsors of international terrorism, and (b) apparently ignore the statutory prohibition on the export of defense articles and defense services to state sponsors of international terrorism as required by Congress under the Arms Export Control Act (“AECA”)?

Unlike the treatment of Iran and Syria for which the ITAR notes a blanket policy of denial (22 C.F.R. 126.1(d)(1)), the ITAR specifies with regard to Sudan that “[i]t is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services . . . except a license or other approval may be issued, on a case-by-case basis, for” certain broadly defined categories of defense articles and defense services. 22 C.F.R. § 126.1(v). On what authority has DDTC allowed for a case-by-case evaluation of license applications for the export of defense articles and defense services destined for Sudan, given that Congress has expressly prohibited such exports under the AECA, 22 U.S.C. § 2780? The answer to this question is unclear, and it appears that DDTC may have overstepped its statutory and constitutional authority in suggesting that it maintains the authority on a case-by-case basis to license the export of arms and defense services to Sudan.

More than 20 years ago, the U.S. Government first designated Sudan as a state sponsor of terrorism on August 12, 1993 due to mounting concerns about Sudan’s support to international terrorist groups, including the Abu Nidal Organization, Palestine Islamic Jihad, Hamas, and Hezbollah. The August 1993 United States designation of Sudan as a state sponsor of international terrorism followed the discovery that summer of the Government of Sudan’s participation in a conspiracy to bomb a number of landmarks in New York City, including the United Nations Headquarters, the Federal Building in Manhattan at 26 Federal Plaza (which served as the New York headquarters for the Federal Bureau of Investigation (“FBI”)), the Lincoln and Holland Tunnels, and the George Washington Bridge. In addition, the conspirators targeted for kidnapping and assassination government officials, law enforcement officials, and judicial officers of the United States. The conspiracy was unmasked in the summer of 1993 and, if it had not been foiled by the outstanding work of the FBI and law enforcement, was to be a follow-up to the February 1993 World Trade Center bombing. See The U.S. Government alleged that the Government of Sudan played an important role in the New York Landmarks conspiracy to murder U.S. citizens and to attack the U.S. Government within the United States. In fact, in connection with the resulting criminal prosecution in the Southern District of New York of Omar Abdel-Rahman (commonly referred to as “The Blind Sheikh”) and others, the United States named the Government of Sudan’s Mission to the United Nations and associated individuals as unindicted co-conspirators in the bombing plot. See 2/2/1995 Notice of Co-Conspirators by the United States in United States v. Rahman, No. 93-Cr.-181,

Countries designated as state sponsors of terrorism face a broad range of U.S. sanctions and legal restrictions, including restrictions on U.S. foreign assistance, prohibitions on arms-related exports and sales, controls over exports and reexports of dual-use items, and miscellaneous other restrictions. Most notably, the AECA, 22 U.S.C. § 2780, prohibits the export and sale of defense articles and defense services to a designated state sponsor of terrorism, whether by the U.S. Government or private U.S. actors except under carefully limited exceptions. In part, Congress 30 years ago enacted the statutory prohibition of Section 2780 in response to the Executive Branch’s decision to deliver arms to Iran in connection with the Iran-Contra affair. See 135 Cong. Rec. H7346-7354 (daily ed. Oct. 23, 1989). This statutory prohibition carries criminal penalties, including a maximum term of imprisonment of 20 years for a willful violation of the AECA (22 U.S.C. § 2780(j)).

With regard to private U.S. actors, Congress prohibited DDTC from licensing or approving the export or sale of defense articles and defense services except in the very rare circumstance in which the President personally acts to waive the prohibition for a specific transaction which is notified and presented to Congress. The President may act to waive the statutory prohibitions of the AECA with respect to a specific transaction which the President (a) “determines . . . is essential to the national security interests of the United States,” (b) consults prior to the export with the Foreign Affairs and Foreign Relations Committees of Congress, and (c) submits a report to Congress not less than 15 days prior to the proposed transaction setting forth details of the transaction and “the reasons why the proposed transaction is essential to the national security interests of the United States and the justification for such proposed transaction.” 22 U.S.C. § 2780(g).

As with Iran and Syria, Sudan is identified on the list of proscribed countries at ITAR Section 126.1. However, unlike Iran and Syria, Sudan is not included in the category of proscribed countries of greatest concern at ITAR Section 126.1(d)(1). Given the potential risks to U.S. national security, it is DDTC’s policy to deny – without any exceptions noted – licenses and other approvals for exports and imports of defense articles and defense services to the countries listed at ITAR Section 126.1(d)(1). Several countries that the Department of State has not placed on the State Sponsors of Terrorism List – Belarus, Burma, China, Cuba, North Korea, and Venezuela – are identified at ITAR Section 126.1(d)(1). Thus, DDTC’s omission of Sudan from ITAR Section 126.1(d)(1) is particularly puzzling.

Instead, DDTC sets forth its restrictions upon the export of defense articles and defense services to Sudan at ITAR Section 126.1(v). ITAR Section 126.1(v) states that DDTC may license the export of defense articles and defense services on a case-by-case basis, for:

“(1) Supplies and related technical training and assistance to monitoring, verification, or peace support operations, including those authorized by the United Nations or operating with the consent of the relevant parties; (2) Supplies of non-lethal military equipment intended solely for humanitarian, human rights monitoring, or protective uses and related technical training and assistance; (3) Personal protective gear for the personal use of United Nations personnel, human rights monitors, representatives of the media, and humanitarian and development workers and associated personnel; or (4) Assistance and supplies provided in support of implementation of the Comprehensive Peace Agreement.” DDTC added Section 126.1(v) in November 2011 “to set out U.S. policy on arms exports to the Republic of the Sudan, in accordance with UN Security Council resolutions imposing an arms embargo and recent political developments in Sudan.”

It is unclear under what statute or other authority DDTC disregards the statutory prohibitions imposed in relation to Sudan under the AECA and allows for an array of exceptions to those prohibitions via the ITAR at Section 126.1(v). The Federal Register Notice publishing the ITAR amendment which added ITAR Section 126.1(v) is in fact silent as to the statutory prohibitions imposed on Sudan under the AECA.

Although the AECA authorizes the President to waive the prohibitions set forth by Congress at 22 U.S.C. § 2780(b) in certain limited circumstances as noted above, it does not appear the President took such action in relation to the addition of ITAR Section 126.1(v). Of course, it is plain that any regulatory provision or administrative rule contrary to statute must fall. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); 5 U.S.C. §§ 702 and 706. In relatively rare circumstances in the past, the President has acted to waive a statutory prohibition upon the private or commercial export of arms to a foreign nation where Congress has allowed the President to waive a statutory prohibition upon a national security or national interest finding. For instance, federal law prohibits the licensed export of defense articles to China unless (a) the President reports that China has made progress on a program of political reform throughout the country or (b) the President finds that a particular export is in the national interest. To allow for a temporary export of a C-130 cargo aircraft (i.e., a defense article) to China for use in oil spill response operations at sea, President Obama issued a waiver of the statutory prohibition to authorize the export of the defense article to assist in response to the oil spill.

Yet, DDTC appears to have assumed the authority to waive the AECA’s prohibitions upon the export of defense articles and defense services to Sudan on a “case-by-case basis.” Whatever laudable purpose DDTC may seek to assist with such a case-by-case review of arms and defense services being provided to the Sudanese Government, the rule of law compels that it must follow the direction and statutes enacted by Congress. To do otherwise would weaken Congress’ action – in the name of the People – to prohibit the export of arms and military training to nations which have been designated for their repeated acts in support of international terrorism. Except for those narrowly circumscribed instances in which the President alone finds a transaction “essential to the national security interests of the United States” and consults with and provides notification to the Congress, DDTC may not on a “case-by-case” basis or any other administrative prerogative license the commercial export of defense articles to Sudan or any other foreign nation designated for its repeated acts in support of international terrorism.