Archive for the ‘General’ Category



Rumors of Musa Abu Dawud’s Death Are Greatly Exaggerated

Posted by at 9:50 pm on May 11, 2016
Category: General

AQIM Touareg Brigade By Magharebia [CC BY 2.0 (], via Wikimedia Commons [cropped and processed]

Last week the State Department and the Office of Foreign Assets Control (“OFAC”) designated under Executive Order 13224, Musa Abu Dawud, one of the leaders of Al-Qaeda in the Islamic Maghreb, as a Specially Designated Global Terrorist. E.O. 13224 requires actions by both State and OFAC for such a designation.

This designation led to a story by the American Media Institute headlined “Dead terrorist listed as active threat.” Talk about click bait! Indeed, upon reading the headline, the entire editorial staff of Buzz Feed resigned knowing that they could never equal, much less surpass, such a glorious example of click bait, not even today’s soon-to-be-legendary click bait listicle “22 Cartoon Guys Who Sexually Awakened You.”

Problem is, notwithstanding whether the story on cartoon guys has a kernel of truth, the accuracy of “Dead terrorist listed as active threat” was even more dubious. So the AMI story silently disappeared. (The link to the story in the previous paragraph comes from the Google cache, illustrating that old web posts don’t even die or fade away but live forever, rather like, it would seem, Musa Abu Dawud.)

There was a tweet (of all things!) from that Musa Abu Dawud was killed in an Algerian military operation in March that AMI apparently used as a source, but I could not find any other corroboration of Musa Abu Dawud’s alleged death. Apparently, neither could the grown-ups at AMI who finally pulled the story. I tend to think that if both State and OFAC think this guy is alive that he probably is.

Photo Credit: AQIM Touareg Brigade By Magharebia [CC BY 2.0 (], via Wikimedia Commons [cropped and processed]

Permalink Comments (0)

Bookmark and Share

Copyright © 2016 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



Save the Fokkers

Posted by at 11:40 pm on April 7, 2016
Category: Burma SanctionsCriminal PenaltiesEconomic SanctionsGeneralIran SanctionsSudan

Fokker Services Building in Hoofddorp via [Fair Use]

The United States Court of Appeals for the District of Columbia Circuit just reversed the decision of a lower federal district court which tossed out the deferred prosecution agreement between the Department of Justice and Fokker Services B.V.  Fokker had admitted, in a voluntary disclosure to the Office of Foreign Assets Control (“OFAC”), that  it had obtained U.S. origin aircraft parts which it then re-exported to Iran, Sudan and Burma without the required licenses. This blog has previously criticized both the highly unusual decision of the DoJ to turn a voluntary disclosure to OFAC into a criminal prosecution and the district court’s decision to toss aside the DPA as too lenient, apparently in the belief that Iran was somehow involved in the 9/11 terrorist attacks.

The Court of Appeals decision, which restores the DPA and reverses the lower court, is based simply on its interpretation of the Speedy Trial Act. Because a DPA starts the Speedy Trial Act’s seventy-day clock running, the Act provides, in 18 U.S.C. § 3161(h)(2), that a DPA can turn off this clock “with the approval of the court.” Otherwise, of course, the defendant could escape prosecution after seventy days, despite provisions of the DPA that prosecution would be avoided only upon good behavior by the defendant during a longer period, typically one to three years.

The Court of Appeals held that this requirement of approval did not give the district court the authority to question the leniency of the DPA, the charges brought by the government or the parties prosecuted under those charges. Rather the court reviewing a DPA is limited to determining if the DPA is

geared to enabling the defendant to demonstrate compliance with the law, and is not instead a pretext intended merely to evade the Speedy Trial Act’s time constraint.

The only other authority of the lower court, according to the Court of Appeals, would be to reject “illegal or unethical provisions” of the DPA, noting that the District Court had not argued that anything in the DPA was either illegal or unethical.

The Court of Appeals opinion is, thus, good news and bad news. The bad news is that a court can’t refuse to approve a DPA on the grounds that it was unfair for the government to turn a voluntary disclosure to an administrative agency into a criminal prosecution. The good news is that if the exporter does agree to a DPA, it can have a high degree of certainty that the district court cannot condition approval of the DPA on the insertion of more onerous provisions.

Photo Credit: Fokker Services Building in Hoofddorp via Fokker [Fair Use] [cropped]

Permalink Comments Off on Save the Fokkers

Bookmark and Share

Copyright © 2016 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



Nork Dork Kim Jong Un Thinks Different

Posted by at 8:48 pm on February 11, 2016
Category: General

Two years ago we caught Kim Jong Un, North Korea’s Dear Dork Leader sending Candy Crush invites to his Facebook friends (all three of them) using a 21.5 aluminum unibody iMac. It seems that Apple’s most notorious fanboi has now added a MacBook Pro to his collection of Apple devices. James Pearson, a Reuters correspondent covering North and South Korea, captured a shot of the overstuffed dictator with his trendy laptop and shared the photo via his Twitter account in the tweet embedded above.

A MacBook Pro is classified as ECCN 5A992.c and can’t be shipped to North Korea without a BIS export license, a license we can all safely assume that was not granted given BIS’s general policy of denial for these items, as set forth in EAR § 742.19(b)(vii).  Once again, we can see how easy it is for U.S. items to be diverted to places and people where they are not supposed to go.  Whatever Kim Jong Un wants, Kim Jong Un gets. And little Mac, Kim Jong Un wants you!

Permalink Comments (2)

Bookmark and Share

Copyright © 2016 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



Let My Field Trips Go

Posted by at 11:01 pm on December 14, 2015
Category: General

Full Lab Close by NSCL [By Permission], via Flickr [cropped]
ABOVE: National Supercon-
ducting Cyclotron Laboratory

A Lansing high school field trip to Michigan State University’s National Superconducting Cyclotron Laboratory was just cancelled* and the school is blaming this on the Bureau of Industry and Security.  According to the school, the field trip was cancelled when the school received the permission slip from NSCL and saw this:

“I also certify that this minor is not a citizen/resident of Cuba, Iran, North Korea, Sudan or Syria.”

The school district superintendent said that she believed that the restriction violated Title VI of the Civil Rights Act which prohibits discrimination based on national origin.

Let’s start with that. They apparently don’t teach civics in Lansing. National origin and citizenship are different things. You can discriminate based on citizenship status but not on national origin. A naturalized U.S. citizen cannot be treated differently because he or she was born in Cuba or China or the Duchy of Grand Fenwick.

But going a little further, what’s up with this restriction? The NSCL apparently told the school that the restriction comes from the Bureau of Industry and Security. This means, given the singling out of nationals from AT countries, that something in the lab must be classified under one of the 990 series of ECCNs which are controlled only for AT reasons, and NSCL is concerned about giving access to that equipment by nationals of AT countries.

Indeed, the minor permission form that caused the brouhaha can be found here and does indeed have the quoted language. But the Tour Certification Form, also required by NSCL to be signed by the tour group, has this curious language:

I have made the members of the party aware that certain technology in FRIB/NSCL falls under fundamental research exclusions from export control within the MSU setting of a domestic research university, but is subject to control elsewhere.

If the concern is access to series 990 equipment, the fundamental research exclusion is irrelevant. Additionally, the notion that information that is fundamental research if disclosed at the university, but is not if it is disclosed elsewhere is just wrong. Once it is fundamental research, it is released from controls everywhere and to everyone. The information does not stop being fundamental research once it leaves the campus.

But more fundamentally, even if the lab equipment is controlled, would the NSCL be transferring technology to a bunch of high school kids that visited the lab? Remember that technology is defined as information required for the development, production or use of the equipment. Certainly, nothing that kids would see on a field trip would permit them to develop or produce the equipment. Nor would it likely help them to use the equipment given that “use” is defined as operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing. Unless the high school kids could figure out how to operate the equipment after seeing it, there’s no way that they would be able to install, maintain, repair, overhaul or refurbish it.

So, I say, let the kids go — even if they are Cuban exchange students. Just make sure you don’t tell them how to install, maintain, repair, overhaul and refurbish the cyclotron (or whatever equipment is causing the concern) while they are there.

*WARNING: the newspaper requires you to answer an obnoxious survey in order to read the article.

Permalink Comments (4)

Bookmark and Share

Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)



UBS Fined by OFAC For Dealing with Secret SDN

Posted by at 9:40 pm on August 27, 2015
Category: General

UBS by Martin Abegglen [CC-BY-SA-2.0 (], via Flickr [cropped]The Office of Foreign Assets Control (“OFAC”) whacked UBS AG, a Swiss bank, with a $1,700,100 penalty today. (That extra $100 is there to prove that OFAC reached this penalty in a super-accurate and completely scientific fashion.) The fine arises from UBS processing 222 transactions of unidentified value for an individual whose name was kept secret by the bank from OFAC but who was apparently designated as a global terrorist on OFAC’s Specially Designated Nationals and Blocked Persons List (the “SDN List”).

Although everyone understands why the Santa in Secret Santa is a secret, it may not be immediately clear why the SDN in a Secret SDN is clear. Apparently, Swiss law protects the names of global terrorists as well as those of ordinary customers. In other words, Switzerland is more interested in protecting the revenue of its banks than the safety of everyone else in the world. Frankly, if OFAC stood up to this nonsense and said it would fine UBS the maximum penalty (at least $250,000 times 222 violations which comes to $55.5 million) if it didn’t cough up the name of the SDN in question, well, even I might have said that was justified.

There’s another oddity in the OFAC release explaining the penalty. Obviously since the case was all about a secret SDN, the only way that OFAC could have learned about it without annoying the Swiss government is through a voluntary disclosure by UBS.

OFAC has determined that although UBS identified all of the apparent violations, the disclosures are not voluntary self-disclosures within the scope of OFAC’s definition under the Economic Sanctions Enforcement Guidelines, 31 C.F.R. part 501, app. A, because they were substantially similar to another apparent violation of which OFAC was already aware.

It’s rather difficult to get any idea what this means in the context that OFAC has no idea as to the identity of the SDN involved. So what does substantially similar mean? That OFAC had knowledge that UBS was supporting another SDN? Or does it mean that OFAC was aware that UBS had processed blocked funds for the Cuban government? Apparently, OFAC is saying that if it knows that you ever violated any OFAC rule you have no right to voluntarily disclose a separate and unrelated violation of that or a similar rule.

Still, between the Swiss and OFAC in this situation, I’m voting for OFAC.

Permalink Comments Off on UBS Fined by OFAC For Dealing with Secret SDN

Bookmark and Share

Copyright © 2015 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)