Antiterrorism assistance for foreign law enforcement

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1. A program built for police, not armies

Antiterrorism assistance occupies Part VIII of the Foreign Assistance Act’s military assistance and sales subchapter in the Code. Although it sits beside military aid in the Code, its focus is civilian law enforcement. The President may furnish assistance to foreign countries in order "to enhance the ability of their law enforcement personnel to deter terrorists and terrorist groups from engaging in international terrorist acts such as bombing, kidnapping, assassination, hostage taking, and hijacking" (22 U.S.C. 2349aa).

The assistance may take the form of training services and the provision of equipment and other commodities. The statute ties that support to bomb detection and disposal, management of hostage situations and physical security. It also covers other matters relating to the detection, deterrence and prevention of terrorist acts, the resolution of terrorist incidents, and the apprehension of those involved (22 U.S.C. 2349aa). The President sets the terms and conditions on which the assistance is furnished.

2. Three purposes, one of them human rights

Activities under the part must be designed to serve three purposes (22 U.S.C. 2349aa-1). The first is to enhance the antiterrorism skills of friendly countries by providing training and equipment to deter and counter terrorism. The second is to strengthen the bilateral ties of the United States with friendly governments through concrete assistance in an area the statute describes as one of great mutual concern.

The third purpose sets the program apart from most security assistance. It aims to increase respect for human rights by sharing with foreign civil authorities "modern, humane, and effective antiterrorism techniques" (22 U.S.C. 2349aa-1). A consultation rule reinforces that emphasis. The Assistant Secretary of State for Democracy, Human Rights, and Labor must be consulted in deciding which countries receive assistance and what kind of assistance each one receives (22 U.S.C. 2349aa-2(b)).

3. Two laws the authority does not override

The general authority applies notwithstanding any other provision of law that restricts assistance to foreign countries, with two exceptions (22 U.S.C. 2349aa). The first is the section of the Act on human rights and security assistance (22 U.S.C. 2304). The second is the prohibition on assistance to governments supporting international terrorism (22 U.S.C. 2371).

The second exception has particular weight for a counterterrorism program. Under it, the United States may not provide assistance under the Act to any country whose government the Secretary of State determines "has repeatedly provided support for acts of international terrorism" (22 U.S.C. 2371(a)). Each such determination is published in the Federal Register (22 U.S.C. 2371(b)).

The President may waive the prohibition for national security interests or humanitarian reasons. Humanitarian reasons, however, may not justify assistance under the military assistance and sales subchapter, and the waiver provision names this part among those covered. The President must also consult the two foreign affairs committees and submit a report at least 15 days before a waiver takes effect (22 U.S.C. 2371(d)).

4. How agencies are paid and what the program may buy

Other agencies can support foreign counterterrorism work without drawing on the part’s own funds. When the President finds it consistent with the purposes of the part, any federal agency may furnish services and commodities to an eligible foreign country without charge to program funds. The country must pay the value in advance, in United States dollars (22 U.S.C. 2349aa-2(a)).

Credits and the proceeds of guaranteed loans made available under the Arms Export Control Act may not be used for those payments. Collections are credited to the providing agency’s currently applicable appropriation, account or fund. They remain available for the purposes for which that appropriation, account or fund may be used (22 U.S.C. 2349aa-2(a)).

Two further limits shape what the program can supply. "Arms and ammunition may be provided under this part only if they are directly related to antiterrorism assistance" (22 U.S.C. 2349aa-2(c)(1)). The value of all equipment and commodities provided in a fiscal year, measured by original acquisition cost, may not exceed 30 percent of the funds made available for the part that year (22 U.S.C. 2349aa-2(c)(2)). The part also does not apply to information exchange activities that federal agencies conduct under other authority (22 U.S.C. 2349aa-2(d)).

5. One coordinator for terrorism-related assistance

A 1985 statute gives the State Department a coordinating role that reaches beyond this part. "The Secretary of State shall be responsible for coordinating all assistance related to international terrorism which is provided by the United States Government to foreign countries" (22 U.S.C. 2349aa-7(a)).

The same section limits how far that role extends. It does not limit or impair the authority or responsibility of any other federal agency for law enforcement, domestic security operations, or intelligence activities as defined in Executive Order 12333 (22 U.S.C. 2349aa-7(c)). Coordination sits with the Secretary of State, while operational authorities stay where other laws place them.

6. Counterterrorism technology and small grants

A 1996 law added two narrower authorities. Up to $3,000,000 in any fiscal year may be made available to procure explosives detection devices and other counterterrorism technology (22 U.S.C. 2349aa-10(b)(1)). The same money may fund joint counterterrorism research and development projects on such technology with NATO and major non-NATO allies. Those projects are conducted under the auspices of the Technical Support Working Group of the Department of State. Major non-NATO allies here are the countries designated as such for the cooperative research and development statute in Title 10 (22 U.S.C. 2349aa-10(b)(2)).

The second authority allows up to $1,000,000 in assistance to a foreign country for counterterrorism efforts in any fiscal year. It applies notwithstanding other law, except the terrorism-support prohibition (22 U.S.C. 2349aa-10(c)). Two conditions must both be met. The assistance must protect United States Government property or the life and property of any United States citizen, or further the apprehension of anyone involved in terrorism against such property or persons. The appropriate committees of Congress must also be notified at least 15 days before the assistance is provided.

7. Funding and legal treatment

The authorization of appropriations in the Code covers fiscal years 2001 through 2003, at $72,000,000, $73,000,000 and $64,200,000 respectively (22 U.S.C. 2349aa-4(a)). Amounts appropriated under the section are authorized to remain available until expended (22 U.S.C. 2349aa-4(b)).

An administrative provision settles how other laws treat the part. Except where a law expressly provides otherwise, any reference in law to the international development subchapter of the Act includes this part. Any reference to the military assistance and sales subchapter excludes it (22 U.S.C. 2349aa-5). For most purposes of other statutes, antiterrorism assistance is therefore grouped with development programs rather than military aid. The terrorism-support waiver rule described above is an example of a law that names the part expressly.

Key terms

Antiterrorism assistance	Training, equipment and commodities that help foreign law enforcement deter terrorism, resolve incidents and apprehend those involved.
Advance payment	Payment in dollars that a country makes before an agency furnishes services or commodities outside program funds.
Equipment cap	The rule that equipment and commodities in a year may not exceed 30 percent of the part’s funds, by acquisition cost.
Technical Support Working Group	The State Department forum under which joint counterterrorism technology projects with allies are conducted.
Terrorism-support determination	A Secretary of State finding that bars most assistance to a government that has repeatedly supported international terrorism.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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