The Obama administration is facing more hurdles in its efforts to expedite aid to Somalia, as humanitarian workers remain confused about a week-old U.S. policy intended to free up resources for combating the country's famine.
Last Monday, the State Department declared that American non-governmental organizations (NGOs) working in parts of Somalia controlled by al-Shabaab, a militant group designated as a terrorist organization by the U.S., would be explicitly exempted from prosecution if some of their funds inadvertently benefited al-Shabaab.
Under normal circumstances, any American organization that provides "material benefit" to a terrorist organization would face severe prosecution under rules administered by the Treasury Department's Office of Foreign Assets Control (OFAC). Several humanitarian groups have said these restrictions have hindered their ability to combat the famine.
But a number of humanitarian organizations currently doing work in Somalia, and especially in parts of the country controlled by al-Shabaab, say they have yet to receive the kind of clarification and reassurance they would need to take American funds, and are struggling to make sense of what exactly has changed in the American policy.
"The bottom line is no, the government is not remotely clear," said a humanitarian aid official currently in East Africa, who has been in contact with several other NGOs in the region and has not been authorized to speak on the record by his organization. "They're a bit all over the map."
On Friday, officials from USAID and the Treasury met with a number of partner agencies in an attempt to sort out the confusion, said Nancy Lindborg, USAID's assistant administrator for humanitarian assistance.
The key difference from pre-existing policy is that the State Department is now authorized to provide a license from OFAC for NGOs to work in al-Shabaab-controlled regions, with the understanding that some funds may fall into the hands of al-Shabaab.
"It is explicitly being conveyed that the license protects them from prosecution in the event of unintended payments that are required in the course of very urgent humanitarian assistance," Lindborg said, adding that even payments that were made knowingly -- renting a car in an area where al-Shabaab collects taxes, for example -- but without the intent to directly benefit al-Shabaab, were now permitted.
"The bottom line is that we want to prioritize the ability to get life-saving assistance into southern Somalia," Lindborg said.
Adding to the confusion is a 2009 advisory memo from the Treasury Department, and distributed to aid organizations working in Somalia, in which the U.S. government says it would "not pursue enforcement action" if good-faith humanitarian work results in "accidental, unintentional, or incidental benefits" to al-Shabaab. Figuring out differences between the old and new policies has stymied some of the NGOs.
Another USAID official acknowledged that part of the problem has been in the "communication" of the change. "We're communicating with the NGOs here in D.C., but that message doesn't always get out as clear to the partners on the ground," he said.
Several major aid organizations contacted by The Huffington Post -- who did not want to go on the record for fear of further complicating aid operations -- said that they have spent the past week deliberating what exactly the rule change means, and have continued to meet with officials from USAID to discuss the details of the policy. A number of NGO officials indicated that they were still spooked by what they perceived as many years of "draconian" regulations from American anti-terrorism laws.
"USAID says they want to move, they do want to get us funding, and from their perspective it's all sort of green light, ready to go," the aid official said. "Maybe they're not really understanding that NGOs are quite nervous, especially the American ones -- and the European ones are taking their cues from the Americans."
"As I see it, the law itself is very black and white on this," he added. "Having a non-prosecute letter is fine and dandy until somebody wants to take you to court. Ultimately, simply getting a guarantee from a bureaucrat, even at the highest level, that you will not be prosecuted is not enough, frankly."
Tony Burns, the director of operations for SAACID, an international organization with offices in Texas and operations inside al-Shabaab-controlled areas of Somalia, is among those who say they will not take any chances until there are more formal assurances from the government.
"Unless I get something in writing from State [Department], I'm not going to do anything," he said. "I’m not sure a wink and a nudge are going to be sufficient to provide enough confidence for NGOs to take up U.S. resources if and when they are made available."
Lindborg said paperwork from the State Department is in the works.
"Anybody with whom we directly partner with will have all the written documentation that they need to be satisfied of their legal concerns," he said.
A recent "conditions document" distributed by the State Department to NGOs that accept American funding for their work in Somalia offers the closest glimpse of the way the changes in rules are playing out.
In a 2009 version of the document, which was provided to The Huffington Post, the U.S. demanded that partner agencies certify that they would "not make payments or provide any other benefits to al Shabaab or its members, or to entities controlled by al Shabaab."
Now, aid organizations must merely "take all reasonable steps to minimize knowing and voluntary payments or any other benefits to al-Shabaab."
The U.S. has said it is working to rush additional aid to Somalia and neighboring countries, a shift after two years of declining rates of humanitarian assistance to the country.
According to data from the U.N.'s Financial Tracking Service, the U.S. was the number one donor of aid to Somalia in 2008 -- before the introduction of strict OFAC regulations -- giving more than $230 million dollars in development assistance to the country. Last year, that figure dropped to just under $30 million.
On Monday, President Obama announced that his administration had approved an additional $105 million in funds for the crisis.