The White House, hoping to speak loudly and to shake a big stick, issued today an executive order imposing yet another round of sanctions on Syria. Although exports of goods to Syria have been prohibited since the passage of the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, this new round prohibits, among other things, the exportation of services to Syria.

The new Executive Order does not define “exportation of services,” but this term has previously been defined by the Office of Foreign Assets Control (“OFAC”) in connection with other sanctions regulations. Section 560.410 of the Iranian Transaction Regulations defines the exportation of services as the provision of services in the United States or outside the United States by a United states person where the benefit is received in Iran. If any services are provided to the Government of Iran, the benefit of those services is presumed to be received in Iran.

Presumably this same definition will be adopted to apply to Syria. This will broadly prevent, for example, a U.S. person from being employed, with or without compensation, in Syria. A U.S. travel agency cannot book flights to, or hotel rooms in, Syria. A U.S. Law firm cannot provide legal advice to a French company doing business in Syria. Provision of a Twitter account or other social networking services by a U.S. Company to a Syrian will violate the new order. Whether typical exceptions that permit many of these activities in other sanctioned countries remains to be seen.

Andrew Tabler, who works for a Washington-based think tank on the Middle East wrote a column in today’s web-edition of Newsweek on the appointment by the Obama administration of a new Ambassador to Syria — the first since 2005 — and what that might mean for U.S. sanctions on Syria. According to Tabler the sanctions have economically crippled Syria, and Syria is now “fanatical about ending U.S. sanctions (which, Damascus has only just admitted for the first time, are truly damaging).”

In trying to explain how U.S. sanctions have economically damaged Syria, Tabler gets into the weeds of export law and the Export Administration Regulations (the “EAR”) and, frankly, doesn’t come out smelling like roses:

[T]he regime had to ground most of its civilian air fleet—as well as President Assad’s personal jets—because the sanctions forbid the sale of spare parts without an export license. (Sanctions classified anything with more than 10 percent American content as an American product, and since U.S. companies dominate the aerospace industry, even third-party retailers from other parts of the world couldn’t sell the parts to Syria.)

This is clearly a reference to the de minimis rule in section 734.4 of the EAR which, for sanctioned countries, only exempts exports to sanctioned countries with less than 10% controlled U.S. content, not exports with less than 10% of all U.S. content. According to the Guidelines for De Minimis Rules set forth in Supplement 2 to Part 734, controlled content consists of content in the item that has an Export Control Classification Number (ECCN) requiring a license to the sanctioned country in question. There are plenty of items that might be parts of exported items that aren’t controlled content to Syria, so Mr. Tabler’s misstatement of the applicable regulations is a significant error in this regard and suggests that more items are subject to the Syria sanctions than is in fact the case.

According to this article in the New York Times, the Obama administration announced today more easing of the sanctions against Syria, stating that it would begin expedited case-by-case consideration of export licenses to Syria:

The move will particularly affect “requests to export products related to information technology and telecommunication equipment and parts and components related to the safety of civil aviation,” said a State Department spokesman, Andrew J. Laine.

Sanctions on Syria were imposed by Congressional mandate pursuant to the Syrian Accountability and Lebanese Sovereignty Restoration Act of 2003. Section 5 of that Act required the President to block exports of all items on the United States Munitions List and the Commerce Control List to Syria. It also required the President to impose at least two of six specific sanctions set forth in the legislation. The two that he selected were, first, the ban on all exports to Syria other than food and medicine and, second, a prohibition on Syrian aircraft landing in, or overflying, the United States (with the exceptions of aircraft carrying Syrian government officials on government business in the United States).

In implementing the Act and the Executive Order, BIS had considered, on a case-by-case basis license applications to export medical devices, aircraft parts and telecommunications equipment. In February of this year, BIS approved the export of aircraft parts to put two mothballed Syrian Arab Airlines 747s back in service.

Section 5(b) of the Syria Accountability Act permits the President to waive any of the acts required export controls if the President finds that such a waiver is in the interest of national security and reports those reasons to the relevant Congressional committees. Although Andrew Laine’s statement re-affirms the more liberal policy towards aircraft parts and telecommunications, the White House’s statements also suggest that the waiver power may be exercised outside the pre-existing categories of medical devices, aircraft parts, and telecommunications equipment.

One area the the White House should consider further liberalizing would be medical devices and the elimination of a license requirement for exports to Syria of medical devices. Under the Trade Sanctions Reform and Export Enhancement Act of 2000 (“TSRA”), medical devices could be exported to Syria without a license. Because the Syria Accountability Act only referred to exceptions for “food and medicine,” the prior administration had interpreted this as over-ruling TSRA and as requiring licenses for medical devices, even though it seems likely that the phrase “food and medicine” was simply a sloppy reference to TSRA and not intended to affect the status of medical devices. Use of the waiver procedure under section 5(b) would allow the President to correct this mistake.