A Better Use of Frozen Afghan Funds

On Feb. 11, U.S. President Joe Biden issued an executive order releasing $7 billion in frozen, U.S.-held Afghan central bank reserves, of which half is ostensibly to be used for humanitarian aid to the Afghan people. According to the New York Times, Biden intends for the other half to remain in a U.S. account pending U.S. court rulings on whether the funds can be used to pay Taliban legal debts to 9/11 victims' families.

This move was understandably met with outrage. Washington Post analyst Daniel Drezner called it "stealing." Emails and texts from former senior Afghan officials and civil society activists are filled with terms like "heartbreaking," "shocking," and "unacceptable." An open letter signed by 100 representatives from the Afghan Women's Network, including former ministers and parliamentarians, begs Biden to reconsider. Afghans on Twitter have pointed out: "The entire population of Afghanistan could reasonably be considered 9/11 victims."

In truth, as Lawfare senior editor Scott Anderson explained, Biden's order doesn't actually hand over reserves to 9/11 families. It simply proposes that the funds sit in trust while U.S. judges decide whether those claims have merit and proposes a cap on how much can be held in abeyance pending those judgments, with the rest reverting more quickly to the Afghan people. A U.S. judge will have to agree to this though and ultimately be the one to decide whether 9/11 families get anything.

But since Biden had the power as executive to argue that any use of these funds for reparations would not be in the nation's interest and instead decided, according to New York Times reporter Charlie Savage, that "the government will not object" if up to half of the money is awarded to 9/11 families, it is reasonable to see the president as complicit in this act should it come to pass.

Make no mistake: If the assets do end up garnished in this way, it could constitute pillage—an international war crime. It would also be a blight on the United States' credibility as a lender of first resort. It remains to be seen whether that will occur. Biden has the power and authority to amend this order (as former Afghan President Hamid Karzai is also now requesting), and depending on what the courts decide and what comes of the various countersuits likely to be filed, he may not have to....