Humanitarian aid groups are pleading with the Biden administration to provide them legal cover to engage with the Taliban without fear of penalties after the group regained power in Afghanistan.

The aid organizations want the administration to grant them special licenses that would allow routine humanitarian programs on which the embattled country has come to rely. Those actions include transferring funds, securing permits and paying import duties and fees.

The intense and perilous efforts to evacuate Americans and vulnerable Afghan allies from the Kabul airport before the month is over have monopolized much of Washington’s attention since the Taliban abruptly took over Afghanistan two weeks ago.

Humanitarian aid workers warn that an even more catastrophic situation is on the verge of erupting. They say U.S. government action is badly needed now to mitigate the potentially deadly fallout on millions of innocent Afghans.

“Can we please start the conversation about Sept. 1 — and beyond?” Ritu Sharma, vice president of U.S. programs and policy advocacy at CARE, said in an interview, referring to the day after President Joe Biden’s deadline for removing all U.S. troops. CARE is a major U.S. nongovernmental organization that receives development and humanitarian funding from the State Department, the U.S. Agency for International Development and other federal entities.

Even before the rapid Taliban takeover, half the country’s population, or almost 18.5 million people, relied on foreign aid. A severe drought that has been attributed to climate change and the health and economic fallout of the COVID-19 pandemic had already greatly worsened living conditions for many Afghans, triggering massive internal displacement levels.

“I think there is this visible crisis, which we’re all seeing,” Melanne Verveer, a former ambassador for Global Women’s Issues during the Obama administration, said during a recent Atlantic Council online forum, referring to the evacuation efforts at Hamid Karzai International Airport. The airlift was further imperiled by a deadly terrorist blast on Thursday that killed 13 American troops and at least 170 others attempting to flee the country. 

“There is an invisible crisis, and we have to be aware of it because it’s going to be on top of us in a matter of weeks, and that is the humanitarian crisis,” Verveer added.

With the faster-than-anticipated collapse of the central government and security forces — along with the exit of the U.S. military and its NATO partners, as well as the large foreign contractor base that supported them — Afghanistan’s tiny economy, its GDP of a mere $19.8 billion in 2020, has been further wrecked. The local currency, the Afghani, has nose-dived, while food prices have gone up. The United States and other international actors have frozen the Taliban’s access to the previous government’s financial reserves.

At the same time, some humanitarian groups have paused their operations in the country while they focus on getting their endangered foreign and local staffs out of the country and wait for legal guarantees from the United States that they can resume operating in a landscape almost entirely under the control of a U.S.-designated terrorist organization.

For humanitarian operations to restart and ramp up in response to the rapidly deteriorating conditions in the South Asian country, the Biden administration needs to promptly provide legal guarantees to NGOs that they will not be sanctioned for interacting with the Taliban, now the de facto ruler of almost the entire country, aid groups and humanitarian experts say.

“We will also continue to press forward in every way diplomatically possible, to help find solutions for vulnerable groups and to try to ensure that humanitarian workers and aid can reach those in need,” a State Department spokesperson, who was not authorized to be quoted, said in a Friday statement. 

Wanted: legal assurances

CARE has paused its activities in Afghanistan, where it has worked since 1961, because the legal landscape for working in the country has changed so much since the takeover of the Taliban, which has been under U.S. financial sanctions for many years, Sharma said. Those sanctions effectively criminalize almost any transaction between a U.S. individual or entity and the Taliban.

“The United States has never defined exactly what (or who) makes up ‘the Taliban,’ nor has it made clear whether the fact that a sanctioned group controls a country means that the country itself is sanctioned,” Adam Smith, a former senior adviser at the Treasury Department’s Office of Foreign Assets Control, wrote in an analysis last week for the Just Security blog. 

“However, in the early days of the Taliban’s control of Afghanistan, it appears that the United States may be interpreting the sanctions rules to now include all of Afghanistan under Taliban control,” he added. “Even if the administration has not formally reached this conclusion, its actions have led many to come to that conclusion.”

The Treasury Department, which oversees the sanctions database known as the “Specially Designated Global Terrorists” list that the Taliban is designated under, was reported last week by The Wall Street Journal to have privately told aid organizations they could continue to work in Afghanistan without fear of being punished for their inevitable interactions with the Taliban.

But those private assurances aren’t good enough, aid groups contend. Organizations like CARE and InterAction, a U.S.-based coalition of foreign aid groups, are calling for Treasury’s OFAC to issue a “general license” for humanitarian activities in Afghanistan.

“Without that OFAC general license, it just means we can do nothing even if the Taliban allow it,” Sharma said. “It means that our hands are still tied.”

‘Whoever is in control’

In recent decades, as a consequence of spreading global instability and the U.S. government’s increasing use of sanctions, the NGO community has developed significant experience in providing humanitarian services in regions where access to vulnerable populations is controlled by U.S.-sanctioned groups. Recent instances include Yemen, Somalia and Sudan.

In response, the NGO community has developed “significant due diligence machinery,” Kathryn Striffolino, InterAction’s senior manager of humanitarian practice, said at a Friday online forum held by the Center for Strategic and International Studies. “It’s built into how they operate, to be able to ensure that aid reaches populations in need, wherever they are located. … But they do require additional legal safeguards in this new operating environment to be able to comfortably continue without fear of legal action.”

“As a humanitarian organization, we serve people who are in need of lifesaving assistance, whoever they are, wherever they are and whoever is in control,” Sharma said. “Yeah, it is going to be complicated; it is going to be difficult. Different provinces will look different, but this is an operating environment that we are used to.”

The abrupt takeover of Afghanistan by the Taliban after two decades of U.S. combat and training operations of indigenous forces that faded away this month has taken a significant psychological toll on Washington. That is particularly true on Capitol Hill, where there is a new generation of lawmakers who fought in Afghanistan and worked to stabilize it.

And that makes aid groups and analysts worry lawmakers may demand, including through legislation, that the Biden administration pursue quick, punishing actions against the Taliban, such as adding it to the State Department’s higher-profile “Foreign Terrorist Organization” list.

But that would be counterproductive to efforts to provide humanitarian services in Afghanistan, said Jacob Kurtzer, director of the Humanitarian Agenda program at the same CSIS forum.

“What is necessary, I think, to avoid, in this context [is] a rush to designate the Taliban as an FTO,” he said, “because that will create a lot of additional complications that will jeopardize a humanitarian response in an already uncertain environment.”