On Lobbying and SDNs: The Technical Rebuttal

I realized that my post about two lobbyists being criminally indicted was a bit tongue in cheek (and maybe a little biased), but there have been some questions about the ability to lobby for an SDN. This question stems from the notion that lobbying for someone is in effect an extension of providing legal services and that it should be allowed. Because I do not believe that lobbying qualifies as a legal service, I do not believe that any of the authorizations would permit it. Chalk it up to my background at OFAC and being a sanctions zealot. Arguments can be made the other way. However, as Erich Ferrari points out, not including lobbying as an authorized service does present a moral dilemma that places OFAC on the defensive, something I’ll address in a separate post. My differences with the contention that lobbying should be allowed not only stem from the technical definition of the regulations, but also from the definition of lobbying and characterizing the services and requirements behind the act. This brings up two questions that need to be answered. First, what is lobbying? Second, does it fit into legal services? After that we can figure out if Israel and Turner have a credible legal defense for lobbying for Mugabe (spoiler alert: the answer is no regardless of how questions #1 and 2 come out). So, what is lobbying? If we take a look at Webster’s we find this definition: v. lob·bied, lob·by·ing, lob·bies v.intr. To try to influence the thinking of legislators or other public officials for or against a specific cause v.tr. 1. To try to influence public officials on behalf of or against (proposed legislation, for example): lobbied the bill through Congress; lobbied the bill to a negative vote. 2. To try to influence (an official) to take a desired action. Nowhere in the definition of lobbying is it alluded to that lobbying itself is a legal service. In fact, lobbying is an act of free speech denoting an action of when the member of the public or a constituent approaches a figure in authority to convince him or her of a specific course of action. In the United States, anyone may lobby congress, their community leaders and even the random guy giving away free newspapers on the corner (listed in degrading level of effects that is…). Thus, you do not need to have a law degree and be licensed to practice law in the state that you are lobbying in. Construing that it does is simply making a statement that lawyers are allowed special privileges that exceed general first amendment rights. However, because much of what we know as lobbying involves regulations and legislation, many of the lobbyist you see around D.C. are in fact lawyers. The second question then becomes: Does lobbying to have sanctions listed constitute as legal services as defined in 31 CFR 541.507? As I generally did when I was at OFAC, we’ll walk through this passage by passage to make sure we don’t miss anything and relate all the possible legal services to lobbying if applicable: The core paragraph of 541.507 states this: (a) The provision of the following legal services to or on behalf of persons whose property or interests in property are blocked pursuant to § 541.201(a) is authorized, provided that all receipts of payment of professional fees and reimbursement of incurred expenses must be specifically licensed: Hint, there is some foreshadowing for the Israel-Turner case in the above passage. But for the most part, it is clear that legal services for the passages we will look...

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General License 18 pretty much made official, a look-back on the BSR

I didn’t post on this until now because it isn’t all that urgent. However, last night the White House issued an unnumbered E.O. repealing the ban on imports from Myanmar (Burma). This still excludes the items covered under the JADE act. In practicality, nothing has changed. OFAC issued general license 18 almost a year ago. The general license was a handy tool for negotiations as that should the situation in Yangon deteriorate, OFAC could quickly revoke the general license and return to enforcing the original regulations. Congress allowing the ban to expire signals trust in Myanmar’s progress. This event does offer us a time to reflect on Congress’ role with the Burma program. Allowing the ban to expire is a traditional tactic, so last nights actions shouldn’t have come as a surprise to anyone watching the hill. More thought provoking is the way that sanctions actually came about against Myanmar. The program initially saw its genesis in 1988 after the ruling junta cracked down on a series of protests…you know…in the typical way of warning shots above the legs. For those that believe in coincidence, you might note that the protests were called the 8888 Uprisings because they were staged on 8 August, 1988. So literally, we lifted the ban on imports 25 years after the catalyst that started the program (the administration may want to play this down however; I don’t think the symbolism would go over well with Human Rights Watch). Congress’ reaction to the resulting coup would be indicative of a trend for the entire course of the program. Instead of engaging OFAC from the beginning, they tagged a few amendments onto the Customs and Trade Act of 1990 and suspended arms imports in 1993. Congressional and executive action thereafter came in bits and pieces, including several E.O.s and finally the Jade Act. It was never willing to fully sanction the country in one large stroke, much like we did to Sudan and with the ITR (albeit we sure followed that with a wallop). My analysis is, that while sanctions were necessary and eventually successful, Myanmar became the punching bag for the House and Senate Foreign Affairs Committees (known in D.C. as the HFAC and SFAC). Because neither of them were actually involved in any real funding programs (including aid packages to other countries), the committee was more a collection of sinecures and Myanmar legislation was a great way for the members to stand up and say they were doing something great for human rights. Of course, it helps that legislation like this is easy to push through the floor (sounds familiar for some of today’s sanctions maybe?) The Burma program has always been one of the more interesting programs for me. It was a very nuanced program that was often misunderstood, and I think much of that came from the haphazard way in which it was constructed on the hill. But for its part, OFAC executed it with exceptional professionalism and I have plenty of memories of walking people through the regulations. I was delighted to see political change and be a part of the lifting of the sanctions through general licenses and have huge hopes for the country in the future. There are many services that still need to be addressed and I think the next steps would be a favorable licensing policy (or another GL similar to GL 19) to allow interactions with certain entities to make those services...

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Dear world: This is why you don’t lobby for SDNs

I know I remember seeing this happening a while back, but it looks like DOJ is pressing criminal charges against two lobbyists for Mugabe. Call it a post-election IEEPA party. Perhaps if your job is to explain to the authorities why a certain set of regulations should be lifted, it might be a good idea to read the regs in the first place. Everything being equal, this case is notable as it is a criminal complaint and not a civil one. I guess if the trial starts going poorly for these guys, I’m sure there is one country that will give them safe harbor…at least for the next five...

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Mugabe Wins Election – Sanctions Probably Aren’t Going Away

Looks like good ole Bobby Mugabe is set to see 39 years of ruling Zimbawe after elections this Sunday. Call me surprised. I guess when you have been running the entire state apparatus for over three decades on essentially a one party system, a fair election a free election does not make. I guess we can call it progress anyways. Their military didn’t coerce anyone into voting for the guy sans mustache. Given that the entire purpose of Executive Order 13469 is to use sanctions to bring about democracy, I wouldn’t be surprised if this program hung around for a bit longer. The Zimbabwe program is perhaps one of the most far reaching list based programs that OFAC administers. On the outset, it looks like a simple list of entities and individuals. But as you begin to dig deeper into the SDNs you realize that not only has almost every major bank in Zimbabwe been designated, but a lot of the SDN companies are involved in all economic trade. For instance, Minerals Marketing Corporation takes a cut in almost all imports and exports of materials, meaning even a simple transaction can have an SDN interest. Obviously, processing this payment could very well be providing a service to an SDN. Our advice, keep this one on the filter and keep up the enhanced due...

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