Meanwhile, back in Iran …

The Washington Post’s Jennifer Rubin reports something the White House doesn’t want you to know:

The Wall Street Journal’s blockbuster report tells us:

The Obama administration secretly organized an airlift of $400 million worth of cash to Iran that coincided with the January release of four Americans detained in Tehran, according to U.S. and European officials and congressional staff briefed on the operation afterward.

Wooden pallets stacked with euros, Swiss francs and other currencies were flown into Iran on an unmarked cargo plane, according to these officials. The U.S. procured the money from the central banks of the Netherlands and Switzerland, they said.

With a straight face, administration officials declare that there was no ransom paid. (” ‘As we’ve made clear, the negotiations over the settlement of an outstanding claim … were completely separate from the discussions about returning our American citizens home,’ State Department spokesman John Kirby said.”) Nevertheless, “U.S. officials also acknowledge that Iranian negotiators on the prisoner exchange said they wanted the cash to show they had gained something tangible.” So they wanted the Iranians to think it was ransom?

Analyst Omri Ceren points out that international banks “don’t want to touch Iran’s financial system because of years of sanctions for terrorism, money laundering, etc. The State Department and Treasury Department enlisted the Swiss and Dutch governments to route hard cash to Iran to circumvent those problems.” Once again, the administration fell all over itself to sweeten the pot and get its historic “deal,” which increasingly seems to be even more heavily titled in Iran’s favor than was known when Congress voted on it.

Indeed, a number of foreign policy gurus have remarked on how shady the arrangement was. Michael Makovsky, CEO of JINSA, observes that “the president has gone rather rogue by circumventing sanctions restrictions on banks by laundering the money through European central banks, which is not only wrong but sends a dangerous signal to other countries and companies.” He further notes, “This payment coincided with not just the release of civilian hostages from Iran but also followed by a few days the release of American sailors who were abducted the prior week.”

And, of course, paying ransom begets more hostage-taking. (“Since the cash shipment, the intelligence arm of the Revolutionary Guard has arrested two more Iranian-Americans. Tehran has also detained dual-nationals from France, Canada and the U.K. in recent months.”) This comes in the context of the administration’s refusal to respond in any meaningful way to Iran’s illegal missile tests, support for Bashar al-Assad and human rights abuses. “Rather than punishing the Iranian regime for its malign behavior, it appears the Administration is rewarding it,” says an official at a pro-Israel group. “That, in turn, will likely provide an incentive for even more bad actions by Tehran.”

Elliott Abrams, former deputy national security adviser, tells Right Turn: “Now we understand why Iran goes on arresting and imprisoning Americans. The Obama administration paid a huge ransom for previous prisoners, so Iran figures it can get more cash for more of them.” He continues, “The administration and its apologists have been saying these jailings are the work of bad right-wingers in Iran, who are trying to undermine the nuclear deal. So the lesson is we need to do all we can to support ‘moderates,’ you see. But now the truth is out: The jailings are the work of Iran’s government, which enjoyed getting the cash for previous American prisoners and simply wants more — and believes Obama will give it to them.”

Critics of the deal point out that the administration hid the ball from Congress, as it did on a number of fronts. Rep. Mike Pompeo (R-Kan.), House Foreign Affairs Committee Chairman Rep. Ed Royce (R-Calif.) and other lawmakers sent letters to the administration, all of which in one way or another demanded information about the reported $1.7 billion transfer to Iran.

Republican members of Congress have reacted with predictable and appropriate outrage. House Speaker Paul Ryan (R-Wis.) released a statement blasting the administration. “If true, this report confirms our longstanding suspicion that the administration paid a ransom in exchange for Americans unjustly detained in Iran. It would also mark another chapter in the ongoing saga of misleading the American people to sell this dangerous nuclear deal,” he said. “Yet again, the public deserves an explanation of the lengths this administration went to in order to accommodate the world’s leading state sponsor of terrorism.”

Sen. Mark Kirk (R-Ill.), who has been involved in virtually every Iran sanction bill, released a statement saying, “We were right in January 2016 to describe the Administration’s $1.7 billion transfer to Iran as a ransom payment. Paying ransom to kidnappers puts Americans even more at risk. While Americans were relieved by Iran’s overdue release of illegally imprisoned American hostages, the White House’s policy of appeasement has led Iran to illegally seize more American hostages, including Siamak Namazi, his father Baquer Namazi, and Reza Shahini.”

Experts emphasize just how peculiar this arrangement was. “The White House sent pallets of cash in an unmarked plane to pay off a state sponsor of terrorism. This is what we call ‘bulk cash smuggling’ in the terrorism finance business,” Jonathan Schanzer of the Foundation for Defense of Democracies remarks. “Until recently, this kind of activity could result in punitive sanctions. Now, the Obama administration is trying to tell us that this is statecraft.”

Other than outrage it is not clear what Congress is willing to do. Democrats have stalled on meaningful sanctions legislation, either to extend the existing sanctions due to expire at the end of the year or to authorize new sanctions. Hillary Clinton has talked tough during the campaign, but critics of the deal are skeptical she will have the nerve to pass new sanctions that the Iranians will claim “threaten the deal.” That is the problem, of course. Iran managed to get a deal out of Obama that required no permanent changes; preserved its option down the road to go nuclear; alleviated economic pressure; delivered cold, hard cash; and gave it ongoing leverage to defend its ongoing defiance, aggression and human rights abuses.

If Clinton is elected, it will be incumbent on Republicans to work with her, pushing Democrats in the direction of a much tougher line on Iran. Passage of sanctions, a zero-tolerance policy for illegal missiles (shoot one down, perhaps) and purchase of banned materials, and renewed efforts on the ground to oust Iran’s partner Bashar al-Assad are needed. Most of all, however, it will be up to the next administration to figuratively and literally stop Iran from holding us hostage. After years of acceding to Iran’s behavior, the United States will need to convey forcefully and promptly that a new U.S. policy is in effect.

Former Attorney General Michael Mukasey explains further:

Some have suggested that sending the money to Iran might have run afoul of the Constitution. Spending by the executive, after all, must be authorized in an appropriation by Congress. However, the funds in question apparently came from a deposit in the 1970s on the purchase of weapons by the government of the Shah—a deposit that was the subject of a lawsuit by Iran against the U.S. No taxpayer funds were involved, and thus there was no offense to Congress’s spending authority.

To be sure, there were at the time, and still are, sanctions in place that bar anyone from engaging in dollar transactions with the regime in Tehran. Thus if the U.S. had simply made a conventional bank transfer to Iran in dollars, the regime would have been unable to readily use the funds, because banks and others would be barred from participating in those transactions. Hence the need for a transfer in other currencies—to avoid the potential for a sanctions violation.

But why cash, and why in an unmarked cargo plane? How come the U.S. did not simply transfer the $400 million we are told actually belonged to Iran to a foreign entity, to be converted into foreign funds for conventional banking transmission to Tehran? That would have permitted the U.S. to keep track of how Iran spent the money, at least to some extent. Here, recall the assurances given by CIA Director John Brennan that the sanctions relief Iran has received thus far has been used for infrastructure projects and shoring up the Iranian currency, to help undo some of the damage that sanctions inflicted on the country’s economy. Again, why cash?

The apparent explanation isn’t pretty. There is principally one entity within the Iranian government that has need of untraceable funds. That entity is the Quds Force—the branch of Iran’s Revolutionary Guards Corps focused particularly on furthering the regime’s goals world-wide by supporting and conducting terrorism. This is the entity, for example, that was tied to the foiled plot to assassinate the Saudi ambassador in Washington, D.C., in 2011, as well as to the successful plot to blow up a Jewish community center in Buenos Aires in 1994.

Notably, there is a federal statute that bars the transfer of “monetary instruments”—cash or its equivalent in bearer instruments—with the intent to promote “specified unlawful activity.” That term is defined to include a crime of violence or use of an explosive against a foreign country, a category that would include terrorism.

Proving intent is always difficult, but federal law recognizes that conscious avoidance of knowledge can be enough. So, for example, the person who transfers a firearm to a known bank robber need not be told directly that the weapon will be used in a bank robbery in order to be held responsible when it is—particularly if he took steps to conceal the transfer.

As it happens, though, there is more than one reason why no one in the administration will be prosecuted for consciously avoiding knowledge of how this cash likely will be used, and thereby violating the anti-money-laundering statute—even with proof that the cash was transported in an unmarked plane. For one thing, the law applies only to transfers to or from the territory of the U.S. This transfer occurred entirely abroad.

In addition, there is a legal doctrine that bars the application of criminal statutes to government activity in furtherance of legitimate government business, unless those statutes are clearly meant to apply to such activity. So, for example, the driver of a firetruck cannot be held liable for speeding on his way to a fire.

The cash transfer here was said to have been arranged in furtherance of conducting the foreign relations of the U.S. The conduct of foreign relations is entirely an executive function. Those involved in this transfer would have the benefit of that doctrine.

Still, if this transfer had been made by a private person or entity—say, in payment of a debt to Iran—and the “monetary instruments” passed through the U.S., is there much doubt that a reasonable prosecutor would at least consider bringing the case?

So we have here the spectacle of the state engaging in conduct that would expose a private citizen to the risk of jail. Considering that the government exists both to serve and to teach us, perhaps it would not be asking too much to demand an explanation: Precisely what legitimate interest of the U.S. was furthered by loading $400 million in cash in an unmarked cargo plane and delivering it to a state sponsor of terrorism?

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