Ankara’s determination to acquire the S-400 has already exacted the cost of its participation in the F-35 program. Turkey’s suspension from the fifth-generation stealth fighter jet program is a significant blow to the Turkish defense and aerospace sector as well as to the Turkish Air Force’s modernization plan. However, the delivery of the S-400 will also trigger the imposition of secondary sanctions under the International Emergency Economic Powers Act (IEEPA, Pub.L. 95-223) and Sec 231(e) of the 2017 Countering America’s Adversaries Through Sanctions Act (CAATSA, Pub.L. 115-44). These sanctions will further damage an already challenged bilateral relationship and impose additional difficulties on Turkey’s economy at an unfavorable time.
The only previous case of secondary sanctions pursuant to CAATSA Sec. 231 is last year’s response to China’s purchase of S-400 and Su-35 systems. If the same sanctions model used is implemented on Turkish entities, then it is likely that the Undersecretariat for Defence Industries (SSB) and a senior official related to the transaction would be constrained by the Treasury Department’s financial controls and State Department’s travel restrictions.
What is CAATSA?
The CAATSA law is a basket of sanctions primarily targeting Russian energy, defense, and intelligence sectors (Sections 222-228 and 231-234); Iranian support to terrorism and ballistic missile threats (Sections 104-107); and North Korean traffickers (Sections 311-315 and 321). The Turkish government is triggering CAATSA sanctions because the S-400s constitute a “significant transaction” with an entity on the Secretary of State’s List of Specified Persons (LSP). The Sec. 231 LSP is the list of Russian entities that are the primary sanctions targets to be punished with financial and economic constraints due to identified Russian foreign policy decisions in Ukraine, cyberspace, and intrusion in the 2016 U.S. elections.
Turkish entities are only exposed to sanctions because they choose to do business with primary targets of U.S. sanctions. The Turkish government’s actions represent a sovereign decision to acquire defense capabilities from a Russian source that is widely known to be sanctioned by the United States. The impending secondary sanctions triggered by the S-400 delivery in Turkey are intended to deter additional transactions with entities on the LSP, like Russia’s main defense export entity Rosboronexport (which is on the Sec. 231 LSP).
On September 20, 2018, President Donald Trump delegated the authority to implement the actions required in CAATSA to the Secretary of State and Secretary of the Treasury in Executive Order (EO) 13849. On the same day, Secretary of State Mike Pompeo declared that Chinese entities would be sanctioned for an earlier purchase of S-400 systems and Su-35 aircraft from Russia’s Rosboronexport. As required in CAATSA Sec. 235, Pompeo imposed five sanctions on the Chinese entities that participated in the transaction with Russian entities on the LSP.
The Chinese case indicates that even when imposing secondary CAATSA sanctions on a strategic competitor, the U.S. executive branch seeks to precisely target the sanction actions on the entities and persons that participate in the transaction with the primary targets on the LSP. The secondary sanctioned entities in China were the Equipment Development Department (EDD) and the Director of EDD. The five sanctions actions were:
(1) denial of export licenses; (2) a prohibition on foreign exchange transactions under United States jurisdiction; (3) a prohibition on transactions with the United States financial system; (4) blocking of all property and interests in property within United States jurisdiction; and (5) the imposition of sanctions on an EDD principal executive officer, its director Li Shangfu [numbers added by author]
CAATSA secondary sanctions applied to Turkey will likely be similarly precise. While the China-Russia transaction was an acquisition from one strategic competitor to another, the Turkey-Russia transaction features an acquisition from a strategic competitor to a NATO ally. Furthermore, the U.S. has already informally sanctioned Turkey by suspending its participation in the F-35 program and maintaining control of F-35 air systems for which Ankara has already paid.
The Role of the U.S. Executive Branch
If the five (or more) secondary sanctions selected by the Secretary of State for Turkey mirror the 2018 actions with China, the impacts will likely have a bigger effect in Turkey. Unlike the China case, the United States has multiple defense and aerospace licensing agreements with Turkish entities to co-produce components of or locally produce export versions of the F-35, F-16, CH-47, and UH-60. Losing this military-economic cooperation would increase the injury to the Turkish industry and military beyond the negligible impact of the same policy applied to China’s EDD.
The legal obligation to apply secondary sanctions under CAATSA Sec. 231 is clear, but the reality of politics and the policy process complicates the situation. If executive branch officials seek to avoid sanctioning Turkey for the S-400 purchase, the explicit authorities to waive (Sec. 231b with modified authority added in fiscal 2019 NDAA Sec. 1294) or delay (Sec. 231c) the initial application of sanctions are not readily applicable.
The executive branch could instead seek to minimize the impact, if desired, in a number of ways. As described above, the Secretary of State has the authority to name the entities that will be sanctioned, and this constitutes one way to control the impact of mandatory CAATSA sanctions. Another way is to strategically select which of the five sanctions to implement and on which designated entities. A third way is to control how quickly the executive branch acts to sanction Turkish entities. The only CAATSA case available for examination, China’s transaction with Russia, indicates that the lapse between S-400 delivery and secondary sanctions announcement can be as long as nine months. However, the long lapse in the Chinese case was likely partially due to the National Security Council process to construct the delegation framework encapsulated in EO 13849. The Turkish case is different because the delegation is already in force; the only remaining questions are the Secretary of State’s preparation to acknowledge the S-400 delivery and impose sanctions on an ally.
Once the Secretary of State has consulted with the Secretary of Treasury and other affected U.S. government agencies, the five selected secondary sanctions and their associated targets in Turkey will be publicly announced and published in the Federal Register. The sanctions announcement will be followed by enforcement through the applicable department or agency.
The Role of Congress
The executive branch must balance any decision that subverts or minimizes CAATSA’s intent with the potential willingness of Congress to reinforce its Constitutional Article I authority with additional legislation. Congress is primed to intercede in this scenario because the relevant committees in both chambers have been repeatedly briefed on U.S.-Turkey bilateral issues, particularly regarding the S-400 and F-35, for nearly two years now and have proposed bilaterally sponsored bills in both chambers that advocate for shifts away from Turkish interests on critical security and energy issues in the 114th, 115th, and 116th Congressional sessions.
CAATSA became law in 2017 through large majority, bipartisan approval in both legislative chambers: 98-2 in the Senate and 419-3 in the House of Representatives. These veto-proof majorities indicate Congress’ willingness to protect their prerogative if challenged by the executive branch, and there are no indications that the sense of Congress on CAATSA’s provisions has changed following the 2018 midterm elections. Then-Acting Defense Secretary Patrick Shanahan indicated in a June 2019 letter to Turkish Defense Minister Hulusi Akar that there existed “strong bipartisan . . . determination to see CAATSA sanctions imposed on Turkey if Turkey acquires the S-400.”
The U.S. Congress has the right to review any proposed sanctions in this case and to ensure the intent of the law is being followed. When President Trump signed CAATSA into law in 2017, the administration delivered a signing statement that argued against its constitutionality because of the limitations placed on the President’s Article II powers to conduct foreign relations. If the administration seeks to waive or except Turkey from secondary sanctions, CAATSA Sec. 216 requires him to submit a report proposing the exception. If the administration applies limited sanctions pursuant to CAATSA Sec. 231 and they do not meet Congress’ expectations, then the legislators have the opportunity to propose new law or offer amendments to must-pass legislation (like the annual end-of-year spending bills) after the summer recess that adjust the U.S. approach to secondary sanctions on Turkey.
What Happens Now?
With S-400 components arriving in Turkey, the threshold for CAATSA sanctions has likely already passed. However, despite the clarity that secondary sanctions should be applied, there is little clarity on how quick, forceful, or broad the imminent sanctions will be. Both the U.S. executive and legislative branches of government have a role in deciding the tempo of action against Turkey’s entities doing business with designated Russian sanctions targets.
Ultimately, the way this critical period unfolds will not only influence the strained bilateral relations for years to come, but it will also indicate how the U.S. government seeks to wield its financial power in the era of renewed strategic competition. Turkey is not the only ally courting Russia for access to advanced military technology; it is merely the first to follow through on its contracts with Moscow.