Archive for the ‘General’ Category


Jun

14

Busman’s Holiday


Posted by at 9:29 pm on June 14, 2016
Category: General

Before the FallI don’t know what’s going on but it seems I can’t escape my job even during seemingly harmless activities.   I watched the excellent AMC/BBC miniseries The Night Manager and it turns out to be about an illegal arms deal, and one of the major characters is from, get this, the Directorate of Defense Trade Controls.   DDTC on TV?  Really?  Who knew?

So now I’m reading Before the Fall, a mystery/thriller by Noah Hawley, best known, perhaps, for his role as the screenwriter for the television miniseries Fargo.  The novel, which has been well-reviewed and which is hard to put down, has, as a plot point . . .

CAUTION:  VERY MINOR SPOILERS AFTER THIS

. . . has, as a plot point, an investigation of sanctions violations by the Office of Foreign Assets Control.  But, sadly, popular novels are poorly edited these days, and there is an unfortunate whopper of an error.   The whopper is not the hilarious and continual references to “the OFAC” as in “Agent Hex and his superiors at the OFAC.”  (I suspect that Hawley is thinking that you say O-F-A-C and not OFAC.  Sigh).

No the whopper is that, in 2015, OFAC still thinks that Libya is sanctioned.   An indictment at issue involves a character engaging in financial transactions with Libya, even though those sanctions were lifted in 2011 with the only remnants remaining being the blocking of certain people who were once part of the Muammar Gaddafi regime.  Still, although I haven’t finished the book, it’s an enjoyable read.  Perhaps I’ll learn as I read further on that it’s actually an alternative history novel like Philip K. Dick’s The Man in the High Castle.

Permalink Comments (1)

Bookmark and Share


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

Jun

1

Russian Export Case Larded with Bogus Spying Charges: Part 3


Posted by at 8:02 am on June 1, 2016
Category: BISCriminal PenaltiesGeneral

Alexander Fishenko
ABOVE: Alexander Fishenko


This blog has been covering the export prosecution of Alexander Fishenko for quite some time. Previous posts on this case can be found here and here. Most of my interest has been in the trumped-up Foreign Agents Registration Act charge brought by the government to allow Fishenko to be characterized, inaccurately, as a Russian “spy.”

Fishenko, who pleaded guilty to all counts in the indictment, is scheduled to be sentenced on June 3. The sentencing memorandum prepared by his lawyers provides more insight into the “spy” nonsense and the government’s motivations in bringing these charges. (I am not linking to the memorandum, even though it is publicly available through PACER, because it contains detailed information on some unrelated private matters relating to Fishenko’s medical history.)

As was detailed in the preceding posts, it was undisputed that Fishenko was buying things at the request of the Russian government. But that alone does not make him a foreign agent required to register under FARA. Section 3(d) exempts “private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal.” There was no allegation or evidence that Fishenko acted for the Russian government in any other capacity, meaning that he was not a “foreign agent” under FARA and, therefore, was under no obligation to register as one.

Apparently, Fishenko was anxious to plead guilty after the indictment, but the government was not willing to take his plea. The hold-up was that Fishenko, although he was willing to plead guilty to all the other charges, did not want to plead guilty to the bogus FARA charge for precisely the reason the government included it: namely, that those charges had been widely, indeed universally, interpreted as charges that he was a Russian spy, something the government well knew and was intentionally using to poison the well.  Fishenko thought that such a plea would permanently damage the reputation of his family members.

Leaving aside for the moment that Fishenko’s activities were exempt under section 3(d) of FARA, it is also undeniable that there is a significant difference between being an “unregistered foreign agent” and being a Russian spy. You can be an unregistered foreign agent in violation of FARA even if you run around wearing a banner saying you work for the Russian government, behavior essentially incompatible with being a spy. Nor was Fishenko charged with espionage under the relevant provisions in 18 U.S.C. §§ 793 – 798, something that certainly would have happened if Fishenko was really a Russian spy.

The only conclusion behind the government’s intransigence on the fake FARA charges is that it wants to keep this weapon in its arsenal for future, and equally illegitimate, use. It’s much easier to convict export defendants once they have been branded in the press as spies. Sadly, such behavior — intentionally bringing unfounded charges for their negative publicity value — turns the word “Justice” in the Department of Justice to Orwellian double-speak.

Permalink Comments (2)

Bookmark and Share


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

May

11

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 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons http://bit.ly/1T78Y7E [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 TracTerrorism.org 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 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons http://bit.ly/1T78Y7E [cropped and processed]

Permalink Comments Off on Rumors of Musa Abu Dawud’s Death Are Greatly Exaggerated

Bookmark and Share


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

Apr

7

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 http://www.fokker.com/sites/default/files/styles/carousel_innovations/public/media/Images/Services/Contact_Fokker_Services_Location_Hoofddorp_637x286.jpg?itok=NYP0cc2k [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 http://bit.ly/23bmktC [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.)

Feb

11

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.)