The president hoped to camouflage what he knew to be against the law.
Did it ever occur to President Obama to ask why he couldn’t just cut a check to the Iranian regime? Outrage broke out this week over the revelation that Obama arranged to ship the mullahs piles of cash, worth $400 million and converted into foreign denominations, reportedly in an unmarked cargo plane. The hotly debated question was whether the payment, which the administration attributes to a 37-year-old arms deal, was actually a ransom paid for the release of American hostages Tehran had abducted.
It is a waste of time to debate that point further. The Iranians have bragged that the astonishing cash payment was a ransom — and Obama has been telling us for months that we can trust the Iranians. The hostages were released the same day the cash arrived. One of the hostages has reported that the captives were detained an extra several hours at the airport and told they would not be allowed to leave until the arrival of another plane — inferentially, the unmarked cargo plane ferrying the cash. The reason American policy has always prohibited paying ransoms to terrorists and other abductors is that it only encourages them to take more hostages. And, as night follows day, Iran has abducted more Americans since Obama paid the cash. No matter how energetically the president tries to lawyer the ransom issue, if it looks like a duck, and quacks like a duck . . .
More worth examining is why the transaction took the bizarre form that it did. To cut to the chase, I believe it was to camouflage — unsuccessfully — the commission of felony law violations. The Wall Street Journal has reported that the Justice Department strongly objected to the cash payment to Iran. As we shall see, that should come as no surprise. What is surprising is the Journal’s explanation of Justice’s concerns: Department officials, it is said, fretted that the transaction looked like a ransom payment. I don’t buy that. It is not a federal crime to pay a ransom; just to receive one. Our government’s stated disapproval of paying ransoms is a prudent policy, not a legal requirement. The Justice Department’s principal job is to enforce the laws, not to ensure good policy in foreign relations. It seems far more likely that Justice was worried that the transaction was illegal. If they were, they had good reasons.
At a press conference Thursday, Obama remarkably explained, “The reason that we had to give them cash is precisely because we are so strict in maintaining sanctions and we do not have a banking relationship with Iran.” Really Mr. President? The whole point of sanctions is to prohibit and punish certain behavior. If you — especially you, Mr. President — do the precise thing that the sanctions prohibit, that is a strange way of being “so strict in maintaining” them.
It is due to this atrocious record that Congress pressed Obama to maintain and enforce anti-terrorism sanctions, which the administration repeatedly committed to do. This commitment was reaffirmed by Obama’s Treasury Department on January 16, 2016, the “Implementation Day” of the JCPOA. Treasury’s published guidance regarding Iran states that, in general, “the clearing of U.S. dollar- or other currency-denominated transactions through the U.S. financial system or involving a U.S. person remain prohibited[.]” (See here, p.17, sec. C.14.) I’ve added italics to highlight that it is not just U.S. dollar transactions that are prohibited; foreign currency is also barred. Obama’s cash payment, of course, involved both — a fact we’ll be revisiting shortly.
Treasury’s guidance cites to what’s known as the ITSR (Iranian Transactions and Sanctions Regulations), the part of the Code of Federal Regulations that implements anti-terrorism sanctions initiated by President Clinton under federal law. The specific provision cited is Section 560.204, which states: The exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, technology, or services to Iran or the Government of Iran is prohibited. [Emphasis added.] The regulation goes on to stress that this prohibition may not be circumvented by exporting things of value “to a person in a third country” when one has “knowledge or reason to know that” such things are “intended specifically for supply, transshipment, or reexportation, directly or indirectly, to Iran or the Government of Iran.”