# Presentation: 904039

## FOREIGN ASSISTANCE 

**AUTHORITIES**

***Department of State***
***Office of  the Legal Adviser***

***Katherine McManus***
***L/LFA***
***November 16, 2006***

## Foreign Assistance Legislation

- _Principle Authorities for Foreign Assistance Programs_
-   FAA: 	Foreign Assistance Act of 1961
-   MRAA:	Migration and Refugee Assistance Act
-   AECA:	Arms Export Control Act
-   FOAA:	Foreign Operations, Export Financing, and 			Related Programs Appropriations
- _Underlying Policies_
- The Secretary of State is vested with responsibility for foreign assistance, including security assistance under the FAA and AECA

## Grant Authority

**Broad discretion to set the terms upon which assistance is furnished**
- Assistance may be furnished on a grant basis or on such terms as may be determined to be best suited to the achievement of the purposes of the FAA. (FAA section 635)
- Authority to make loans, advances, and grants to, make and perform agreements and contracts with, or enter into other transactions with, an individual, corporation, or other body of persons, friendly government or government agency, whether within or without the United States, and international organizations. (FAA section 635; MRAA section 3)

## Key Considerations for Foreign Assistance

**Are we authorized to undertake this activity?**
-   Look to authorization legislation for the purposes of the legislation and the activities that can be undertaken to carry out those purposes
-   FAA – authorizes  a wide range of assistance for specific purposes (e.g., humanitarian, anti-crime, anti-terrorism, peacekeeping, International Military Education & Training)
-   MRAA – authorizes contributions to international organizations and other assistance for refugees
-   AECA – authorizes the provision of financing for the purchase of defense articles and services

## Key Considerations for Foreign Assistance

**Do we have appropriated funds to do this activity?**
-   FOAA
-   Past year funds = past year FOAA provisions
-   General appropriations principles apply, such as 		    availability as to time, purpose, amount

## Key Considerations for Foreign Assistance

**Are there specific restrictions that preclude us from undertaking this activity?**
-   Certifications?
-   Sanctions?
-   Withholding requirements?

## Restrictions on Foreign Assistance

***Related to Status of Country***

**Restrictions related to the status of the country**
-   Military coup
-   Debt default
-   Terrorist list
-   Human rights violations
-   Nuclear testing or sensitive nuclear exports
-   Party to International Criminal Court with no Article 98 agreement (Nethercutt Amendment restricts ESF; American Servicemembers Protection Act (ASPA) restricts FMF)
-   Trafficking in Persons

## Restrictions on Foreign Assistance Related to Specific Country

**Restrictions related to the specific country (sometimes limited to specific accounts)**
-   No FOAA funds for Cuba, Libya, DPRK, Iran, or Syria
-   No FMF for Indonesia or Nepal without a certification
-   Restrictions on assistance to the Palestinian Authority
-   No assistance for central government of Uzbekistan without    	a certification
-   Restrictions on assistance to the government of Sudan

## Restrictions on Foreign Assistance

***Related to Specific Activities / Policy***

**Restrictions related to specific activities / policy considerations**
-   No police training
-   Restrictions on use of funds for alcoholic beverages or 	entertainment 	expenses
-   Leahy vetting of security forces for human rights concerns
-   Parking fines and property taxes
-   No taxation of assistance

## Additional Due Diligence Requirements

**Some grants may require additional safeguards/conditions**
- West Bank/Gaza ESF requires vetting to ensure that assistance is not provided to or through any individual or entity known to be involved in terrorist activity.
- Certifications related to no involvement with drug trafficking.
- Anti-prostitution language for anti-trafficking grants.
- Marking of foreign assistance.

## Overcoming Restrictions

-   **Legislative carve-outs**
-   Provides that the restriction does not apply to certain categories of assistance (e.g., humanitarian or democratization assistance)

-   **Certification**
-   Permits assistance if the President of Secretary make specific factual determinations and justify to Congress

-   **Waiver**
-   Legislation provides a standard by which the President or Secretary can provide assistance even if the country is otherwise ineligible
-   National interest; national security interest
-   Important to; vital to

-   **Notwithstanding Authority**

## Challenges Ahead

- Competing foreign policy priorities
- Increasingly constrained budget
- Continued budget pressures from Iraq, Afghanistan, unexpected demands such as Tsunami, Avian Flu, Lebanon
- Increasing Congressional oversight
- Earmarks
- Restrictions
- Guidance on allocations/reports on unobligated or unexpended balances