Because this is a U.S. sanctions law blog, we’d be remiss if we ignored the important speech offered by Secretary of the Treasury Jacob J. Lew at the Carnegie Endowment for International Peace last week.

The product of intense debate and discussion within the U.S. Department of the Treasury, as well as extensive consultation with outside practitioners and thinkers of U.S. sanctions, Secretary Lew’s speech was an effective antidote to the predominant view of U.S. sanctions as a tailor-made solution to all U.S. foreign policy concerns. Instead of reaching to U.S. sanctions as a weapon of first resort whenever and wherever conflict should arise, Secretary Lew cautioned that the strength of U.S. sanctions depended on their efficacious use and that their overuse could irreparably undermine their future impact. The thoughtfulness of his remarks evidenced a certain self-reflection within the Treasury Department and some hard-headed thinking as to the dangers of proceeding in the same manner as times past.

Not surprisingly, a good speech was met with good commentary. Most zeroed in on the fact that Secretary Lew’s remarks signaled a turning point in U.S. thinking on sanctions. For the best of the think-pieces responsive to Secretary Lew’s speech, see here and here:

Nonetheless, I can’t help but feel that much of Secretary Lew’s speech was more aspirational than it was descriptive of current U.S. practice. That is despite the language that Secretary Lew used at times, as if the U.S. was currently practicing sanctions in the manner discussed.

Take this selection of Secretary Lew’s remarks, for example:

The sanctions we employ today are different. They are informed by financial intelligence, strategically designed, and implemented with our public and private partners to focus pressure on bad actors and create clear incentives to end malign behavior, while limiting collateral impact.

I identify at least three hidden assumptions there that I think fail to adequately reflect the realities of how the U.S. practices sanctions.

First, the idea that “the sanctions we employ today are different.” Secretary Lew is contrasting the more targeted approach of recent U.S. sanctions with the “country-wide embargo” that existed in times past. But last time I saw, the U.S. maintained a comprehensive trade embargo with Iran and Cuba – not to mention various other bans on the import or export of goods to certain targeted jurisdictions. While some of these embargos might have been put in place decades past, few challenge their relevance to current U.S. policies (e.g., Iran). If anything, then, the U.S. maintains a hybrid approach to sanctions – both engaging in a more targeted approach to sanctions, while maintaining comprehensive trade embargos that blanket the targeted country or region (think the sanctions imposed on the Crimea region of Ukraine).

Second, Secretary Lew states that today’s sanctions are “implemented with our public and private partners to focus pressure on bad actors.” I have no doubt that the U.S. Department of the Treasury consults with the private sector to determine the appropriate scope of U.S. sanctions measures, but I also know that few in the private sector believe that such consultation is adequate to absolve their concerns over the scope, application, and impact of U.S. sanctions. Failure to rigorously engage with the private sector also leads to less effective U.S. sanctions, as the private sector tends to over-comply in ways that broaden the intended scope of U.S. sanctions. Engaging in consultation with the private sector is a laudable goal for the U.S. Treasury Department, but is done a far less frequent basis than is necessary to have the sought-after impact on the efficacy of U.S. sanctions programs.

Third, Secretary Lew states that today’s U.S. sanctions provide “clear incentives to end malign behavior.” For those of us who have provided representation to U.S.-designated parties and have participated in the SDN reconsideration process, however, it is tough to regard this as an altogether faithful description of Treasury’s current practice. Rather than present the factual allegations related to a party’s designation and require the designee to respond to such allegations – either to implement a change in circumstances or to provide evidence showing that the allegations are erroneous – Treasury’s current modus operandi is to leave it up to the designee to guess at the reasons for his, her, or its designation and effectuate a change in behavior relative to that presumed basis for designation. Whether appropriate or not, Secretary Lew cannot claim that Treasury provides “clear incentives to end malign behavior,” as the SDN reconsideration process is almost deliberately opaque to designees challenging the presumed basis of their U.S. sanctions designation.

That is why I regard Secretary Lew’s remarks as more aspirational than descriptive of current U.S. sanctions practice. There is nothing wrong with being aspirational and setting goals strategically inclined to better realize U.S. interests. But I hope that Secretary Lew is not buying into the description he himself offered of Treasury’s practice – or else we risk confusing what we’re doing right now for the goals we have set for ourselves down the road.