On the temptation to spend what we have merely seized

The Washington Examiner reports that, as President Trump prepares to meet Gulf leaders to discuss postwar strategy toward Iran, a faction of advisers is urging something beyond the customary freeze of Iranian assets — namely, a declared willingness to spend those funds as an instrument of pressure. The proposal is offered as boldness. I would counsel the reader to examine it as a question of law and of long consequence before embracing it as policy.

The freezing of foreign sovereign assets is itself a grave act, one that sits at the edge of what the law of nations has traditionally permitted in the absence of a formal state of war and a judicial adjudication of the claim. Nations have done it; courts have sometimes ratified it; but the practice is tolerated rather than celebrated among those who study the binding force of international obligation. To threaten expenditure of those assets — as a diplomatic instrument, before any lawful judgment — is a further step still. It is, in effect, to use another sovereign's property as a hostage. I do not say it is always impermissible; I say its permissibility depends entirely on the legal foundation one can actually demonstrate, not merely assert.

I was present, in spirit if not in flesh, at the negotiations that produced the Treaty of Paris, and later the treaty that bears my name with Britain. In each instance, the question of property — debts owed, assets claimed, goods seized at sea — was the hardest and most persistent matter on the table. What I learned is this: a nation that handles another's property carelessly, or that bends the rules of property to serve the passion of the moment, teaches every counterparty in every future negotiation that its word on property cannot be trusted. That lesson, once taught, is not quickly unlearned.

The Examiner's lead concerns a postwar strategy — which is to say, the parties are already contemplating the shape of whatever settlement follows the present conflict. This is precisely the moment when the construction of legal authority matters most. A threat made now, without clear statutory and treaty grounding, will appear in the record of every future negotiation as precedent. Other states — not only adversaries but allies — will take note of what the United States claims it may do with frozen sovereign funds. The Gulf partners gathered in New York will be watching not only what America does to Iran, but what America's habits of law suggest it might one day do to them.

I do not argue that Iran's conduct imposes no obligations, or that the United States is without legitimate claims. That is a separate inquiry, and I have no modern intelligence on the specific legal instruments at issue — the sanctions architecture, the escrow arrangements, the relevant Security Council resolutions. I mark that as the boundary of my knowledge and urge those with the dossier before them to read it carefully. What I do argue, on principle that requires no special modern expertise, is this: the power to threaten expenditure of seized assets should be grounded in statute, in treaty, or in a judicial determination — not in executive assertion alone. The public faith of the United States is a national asset more durable than any sum of frozen currency, and it is spent, once spent, very slowly recovered.

The proper course before that meeting in New York is not to ask how boldly the threat can be made, but on what lawful foundation it can rest. Let counsel present the authority. Let that authority be tested before it is proclaimed. A diplomat's task is to leave a quarrel less inflamed, and a nation's obligation is to remain, in its own conduct, the kind of party whose commitments other nations have reason to honor.