Legal Considerations for U.S. Contractors in Afghanistan

By Trent Cotney, Cotney Attorneys & Consultants.

U.S. government contractors with operations in Afghanistan are advised to keep an eye on the ever-changing events and adapt as necessary.

As the world watched the recent collapse of the Afghan government and how quickly the Taliban took control, concerns about human life and civil rights were undoubtedly of utmost importance. However, as the dust settles and the reality of the situation is fully understood, U.S. government contractors will have myriad legal and logistical challenges to face. 

Facility Shutdowns 

The Afghan Embassy in Washington, DC, is still operational, and contractors should look to the embassy for assistance in shutting down operations in Afghanistan for the time being. But as the atmosphere in Afghanistan evolves, the embassy may cease operations or be severely limited. In addition, U.S. government contractors without current assets or personnel in Afghanistan may have no alternative but to halt operations via actions in the United States. It will be necessary to document all such activities to comply with U.S. sanctions and export control. Detailed documentation may also be beneficial in submitting reimbursement claims and U.S. tax deductions for expenses or losses resulting from the necessary shutdowns. 

Economic Sanctions 

The United States will likely impose economic sanctions in reaction to expected human rights violations. These sanctions will be issued to the Taliban, as well as the group’s leaders and any entities controlled or owned by the Taliban. These entities would include former privately owned companies commandeered by the Taliban. U.S. government contractors who have done business with the Taliban or companies controlled by the Taliban should terminate those ties as quickly as possible. 

Export Control 

Contractors must also determine if they have any U.S. export licenses or technical assistance agreements in place in Afghanistan. If they do, they may need to end those arrangements. If items covered by those agreements or licenses are compromised or unrecoverable, the U.S. exporter should consider voluntarily disclosing that information.  

Investment Recovery 

Since the former Afghan government has been displaced, it is unclear who will claim to be the legitimate government. The Taliban may do so, or former government officials could make a play for power. Either way, government officials have likely attempted to protect their assets by transferring them out of the country. If this is the case, multiple individuals and entities may make completing claims for those assets. With this in mind, U.S. government contractors tied to any Afghan interests should make every effort to recover related guarantees or funds as quickly as possible.  

Former Employee Protection 

During the decades of U.S. presence in Afghanistan, contracting companies have employed numerous locals and third-country nationals. To protect those employees, many companies are trying to help them secure passage out of Afghanistan and find safety elsewhere. This endeavor is proving to be a challenge due to the urgency and the sheer number of people who need assistance. In addition, companies that want to assist in confirming the necessary information for visas are also being asked if they can help the employees of vendors and subcontractors. Contractors should look to industry organizations and government agencies for support in these efforts. However, the unfortunate truth is that many of these locals and third-party nationals are at risk and may not receive help in time. 

Final Advice 

More issues and challenges will undoubtedly arise as the situation in Afghanistan unfolds. Therefore, U.S. government contractors with operations in that country are advised to keep an eye on the ever-changing events and adapt as necessary. In addition, contractors who are unsure about how to recover their assets, cut ties to Taliban-controlled entities, or disclose U.S. export details should consider consulting legal counsel. Experienced attorneys can conduct a thorough attorney-client privileged evaluation of the facts regarding exports, Taliban ties, and other pertinent issues. Their advice can be invaluable in helping to protect contractors’ companies and their international interests.  

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. 

Trent Cotney is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.