A National Emergency: sanctioned by Trump

Donald Trump is stretching his executive powers to add foreign individuals and entities to US sanctions lists at a rate never before seen. And it’s increasingly been done without congressional oversight, judicial review or any requirement to produce evidence against those sanctioned

8 August 2020 | Marcus Reubenstein (White House official photo)

US President Donald Trump has made good on his public threats issuing an executive order banning Chinese-owned social media app TikTok. The president has the Constitutional powers to do so but in order to implement the ban he had to declare a state of emergency under the National Emergencies Act.

A lip-syncing video app with 500 million global users, mostly under the age of 24, who upload 15 second videos of singing and dancing. That constitutes a national emergency?

Trump says the Chinese government will collect the data of millions of users. A BBC News investigation, broadcast on the day of the Trump ban, found no “smoking gun” in the back-end of the app which suggested user data is being collected and shared to third parties.

Within hours of that ban, Hong Kong Chief Executive Carrie Lam and ten government officials had their names added to a sanctions list which means any US-held financial assets will be frozen and property seized.

They join a burgeoning sanctions list which the Washington Post calls “Donald Trump’s favourite form of retribution.”

Says the Washington Post, ‚ “Trump imposes sanctions much like how he governs, using them aggressively if haphazardly.”

A foreign policy carpet bomb

The Economist has labelled the Trump approach “financial carpet bombing” saying the president “uses sanctions as a bludgeon in high-profile disputes.”

George W. Bush’s administration issued on average 430 sanctions each year and the Obama administration 500. While in the first three years of the Trump administration the US Treasury issued more than 3,000 sanctions, including more than 1,400 in 2018 alone, the highest single-year total since the department started publishing sanctions data two decades ago.

Andrew Rennemo, a former intelligence analyst who advised the US Treasury Department on the imposition of sanctions, says recent moves, like those against Chinese companies, “reveal just as much about the current state of U.S. diplomacy and its unhealthy dependence on sanctions.”

Trump’s “fundamentally misguided” National Emergency

In June, amidst the chaos of nationwide Black Lives Matter protests and the uncontrolled outbreak of COVID-19 across the United States, Trump declared another National Emergency – it had nothing to do with mass civil unrest.

Trump issued an executive order, under national emergency laws, sanctioning the International Criminal Court (ICC) in The Hague, including its lawyers, investigators and human rights advocates.

It was in response to a unanimous ruling of the five judges of ICC Appeals Chamber to allow prosecutors to investigate, and potentially lay charges against, US military personnel for alleged war crimes in Afghanistan.

William Burke-White a foreign policy scholar at the Brookings Institution in Washington DC, called the Trump sanction “fundamentally misguided.” The sanction is so broad it could grant the US government the power to seize the property of witnesses who appear before the ICC.

In theory, academics whose articles are relied upon in framing a legal argument could be sanctioned.

Most disturbingly Trump’s executive order could potentially see the victims of war crimes have their names added to a list previously reserved for terrorists, war criminals, dictators and international drug lords. 

In a report for Brookings, Burke-White wrote Trump’s use of his executive powers in such a manner was “farcical” and that it materially “erodes the U.S. longstanding commitment to human rights and the rule of law.”

The national security Entity List

Most US trade sanctions are imposed by the Department of Treasury, however, in 1997 the US Commerce Department established the BIS (Bureau of Industry and Security) Entity List to prevent US companies supplying components to foreign entities, suspected of involvement in weapons of mass destruction programs.

Since then grounds for inclusion have expanded to governments or persons engaged in acts of terror. Under Trump it has been broadened again to include activities “that could be contrary to the national security or foreign policy interests of the United States.”

Says Judith Alison Lee, Co-Chair of the International Trade Practice at Gibson Dunn Lawyers in Washington DC, “Under the Trump administration the definition of national security keeps getting stretched.

“It is a very powerful tool and this administration is making sanctions rulings in a way and a scope that we’ve never seen with any previous administration.”

No oversight or review

According to Lee, whose firm has represented companies and individuals who’ve been sanctioned, “The Trump Administration loves these sanctions. They are immediate, they are not subject to any Congressional approval, they are not subject to any meaningful judicial review.”

Entities placed on the BIS sanctions list can appeal to have their names removed; but that almost never happens because appeals are heard by the same committee which applied the sanctions in the first place.

Collateral damage

Three weeks ago, eleven Chinese companies were added to the BIS Entity List having been “implicated” in human rights abuses against China’s Uyghur ethnic minority in Xinjiang province.

Forbes undertook a review of those companies, however, it only identified substantive evidence pointing to the use of forced labour against one of those companies.

While another company that was sanctioned appears to have gone out of business in 2019.

Earlier additions to this list, most notably AI (artificial intelligence) and facial recognition companies CloudWalk and Beijing Sensetime develop mass surveillance and facial recognition technologies which clearly have the potential to be deployed against the Uyghur population.

However, a number of the latest additions seemingly have tenuous links with Xinjiang province.

In the absence of the US tendering any specific evidence against these companies, it appears they may be collateral damage of Donald Trump’s “financial carpet bombing” in his war of rhetoric with Beijing.

In total there are 48 entities on this list, twenty of them are not even companies, they are local police departments, while only seven have factories in Xinjiang.

There is little evidence Chinese companies sanctioned last month use US components in their production and none manufactures goods which could pose a security threat to the US. Before Trump, such companies would simply have never been added to this sanctions list.

“We’re now seeing a lot of companies designated for reasons that don’t have anything to do with their use of US origin goods,” says lawyer Judith Alison Lee. “Trump has put this on steroids.”