Valijagate Part I
With the U.S. legal system managing to repeatedly piss off
leftist Latin American governments, I thought I could contribute to the
BoRev by utilizing my lawyerhood for good instead of the usual evil and
take a closer look at some of these controversies. To kick things off,
I've just done a boatload of research on the legal arguments
surrounding the so-called "suitcase scandal,” or “malitenazo” or "valijagate."
Since December, three Venezuelans and a Uruguayan have been detained in
Miami without bail. Their alleged crime involves the supposed cover-up
of the delivery of money between the Venezuelan and Argentine
governments. There are now allegations that Chavez himself was involved. Interesting maybe,
but does it sound like something the U.S. justice system should be
involved in? Probably not. Even worse, the U.S. case is sort of
laughable. Where to begin?
The four defendants are charged with violating 18 U.S.C. § 951 –
acting as “agents” of the Venezuelan government, and failing to send a
letter, email, or text message to Alberto Gonzalez telling him about
their agency. Well not quite, but almost (full text of law). A popular misconception is that they were charged under 22 U.S.C. § 611 et seq., the Foreign Agents Registration Act
(FARA), a similar, better-known statute with a catchier name that
largely deals with foreign government lobbyists or public relations
firms registering their activities with the Department of Justice (DOJ). Either way, the legal case is slowly proceeding, and the defense has recently submitted a motion to dismiss (full text)
the charges to the court. Although it would be a huge political shock
for the defendant to win on the motion, the defense has legal precedent
on it’s side. But it’s also just common sense. After the jump, a closer
look at the law and the defense motion lends support to Venezuelan and Argentine claims that the prosecution is politically motivated.
After being re-scheduled twice while the government slowly persuaded three
of the four defendants into making plea agreements and admissions of
guilt (all had originally pleaded not guilty), the trial for the lone
detainee not to succumb to the pressure, Franklin Duran, is now set to
proceed on September 2, 2008 in the Florida Southern District Court in
Miami. On June 20, Duran’s attorney, Edward R. Shohat, submitted a motion to dismiss
the two charges (there is also a count for conspiracy to violate
section 951) against his client on the grounds that the relevant
statute is unconstitutional. The defense’s main legal theory is that 18
U.S.C. § 951 is void for vagueness, and so it violates the Due Process Clause
of the 5th Amendment of the U.S. Constitution. This argument maintains
that when a law does not clearly explain what type of behavior is a
no-no, it promotes discriminatory enforcement by officials, and all
other sorts of violations of the Bill of Rights – you know, that piece
of paper that used to be the foundation of this country’s democracy.
When a law’s plain meaning is as ambiguous as is section 951’s, the judge should examine the legislative intent/history
of Congress when passing or amending the law in order to determine
whether it is constitutional, and whether or not the defendant has gone
against its purposes. 18 U.S.C. § 951 was originally passed during WWI
with an eye on ze Germans. It was meant to, and has previously only
been used to prevent classic espionage – collecting intelligence or
classified information and transmitting it back to a foreign country
over an extended period of time – or other activities that were
reasonably considered a threat to US national security. And as the
defense points out in its motion, when Congress passed the law in 1917,
it was viewed by legislators as a defense for the country during times of war. The statute was last amended in 1984 with an eye on the Ruskies in the midst of a resurgent case of Cold War hysteria.
So that’s the legal “ideology” behind the law, and the legal reality
has so far largely backed it’s intended purposes. § 951 is an
FBI-investigation-initiator when spying is suspected, as well as a
prosecutorial safety-net when more serious spying charges are alleged,
but uncertain to be proven. It has, up until recently, been used as a secondary charge along with other more serious spying charges, or as part of a plea agreement
reached after extended spying. Of the 35 prior § 951 cases found on
LexisNexis and referred to in page 15 of the defense motion, 32
reasonably involved such “spying” activities and have been used against
“agents” of regimes that the US was then openly hostile to. These
include Germany earlier last century (8), the USSR (12), Vietnam during
that war (2), an unnamed country (1), and more recently Iraq (5) and
Cuba (4). The fact patterns in two cases are unpublished and the one
remaining case involved the illegal exportation of weapons from the US
to Northern Ireland (US vs. Byrne). In fact, according to the motion to dismiss, the defendants in Byrne were able to beat the § 951 charge using the same void for vagueness arguments as Duran.
The Iraqi cases are all post-Gulf War I and some involve international intrigue related to the current Iraqi adventure, including an American anti-war activist accused of being an agent of Saddam. Other recent section 951 cases found on the internet include the prosecution of two engineers for sending back
classified weapons information to China for over twenty years. Another,
maybe even comical case involves a Marine sending classified
information to the Philippines from, get this, Dick Cheney’s office.
And now you can add Venezuela to the list. But notably absent from the government’s indictment (full text)
of Moisés Maionica, Carlos Kauffman, Antonio José Canchica Gómez (not
detained), Rodolfo Wanseele Paciello, and Duran is any mention of
espionage or other concrete violations of US national security
interests by the defendants. Even the recent Cuban cases of the Cuban 5 and the Alvarezes, relate to the transmittal of intelligence by those living in the U.S. to Havana over a period of several years or decades.
The fact pattern in the Venezuelan case is drastically different than
prior § 951 prosecutions, with the fabulously wealthy defendants only
visiting the U.S. for small periods of time.
So why now is the government attempting to prosecute Duran and by
extension Venezuela under an obscure anti-spying law, other than
Miami’s disdain for anything Castro or Chavez-ey? From a legal point of
view, you’ve got me.
section 951 does not detail what "registration" form an "agent" of a
foreign government is supposed to send to the DOJ or Attorney General.
But why would it? It doesn't make sense that a law meant to catch spies
actually expects them to announce their activities to the country
they're spying on, or they would be terrible at their jobs. But if you
apply section 951 the way the DOJ is asking the District Court to do
so, then any activity or favor done by someone in the U.S. at the
request of a foreign official, no matter how innocent, exposes that
person to the risk of being arrested. Well, at least it's a lot more
likely if the U.S. does not like that official's government. And that
is precisely why, in a purely legal sense, the void for vagueness doctrine should prevail for Duran, as it did in US vs. Byrne, although that doesn't mean it will.
Prosecutor Thomas Mulvihill and his team at the DOJ must respond to
the defense’s motion by July 10, and it undoubtedly will be very
interesting to see what kind of legal arguments they pull out of their asses
come up with. There are several other legal minefields that the
prosecution will have to navigate in order to win a conviction, and
they will be detailed in future Revolter postings. What is clear now
however, is that Venezuela and Argentina have bona fide support,
including both common sense and legal precedent, for their positions
that this prosecution is politically motivated. The media has willfully
ignored all of these arguments, taking the White House line
of the “independence of the US judiciary” as some sort of absolute
truth that prevents such judicial bias form occurring. But many people
all over the world are already unconvinced, and many more will be so if
Duran is actually convicted under this strange statute.
Valijagate Part II
Parts I & II of this suitcase scandal trial update were supposed to focus on the arguments behind the “Motion to Dismiss” the charges filed by Franklin Duran on June 20. However, the first paragraph of Part I linked to a Bloomberg article that refers to a different legal document – Duran’s June 24 Response to the Department of Justice (DOJ)’s absurd and hypocritical “Motion to Preclude Evidence and Argument Regarding the Foreign Policy of the United States Towards Venezuela."
The misleading Bloomberg piece suggests that there is direct evidence
Chavez personally sent the defendants to Miami to pressure "the Fatman"
or “el Gordo,” Guido Antonini Wilson, to cover-up some money-laundering. But the revelation made on pg. 4 of the defense's Response and referred to
by Bloomberg was only that one of the defendants, the multi-millionaire
Carlos Kauffman, told the FBI (as part of plea deal that reduces his
sentence) that others told him that Chavez was “involved.” That’s called hearsay, and by itself, Kauffman's statements won’t prove a thing in court.
A far more impressive revelation from that motion is that Duran is
going to tell it like it is and argue "what appears quite obvious to
everyone else": that the prosecution is POLITICALLY MOTIVATED. That starts on page 1, and on pgs. 2-3
the defense states that the DOJ intends to use evidence “having no real
purpose but to embarrass the government of Hugo Chavez” at trial.
More on the weird “Foreign Policy” Motion and the defense's rational Response to it later. First, let’s finish exploring the arguments found in the even more legally sound and kick-ass Motion to dismiss filed by Duran. There’s only a few more, and trust me, they’re good and easy to understand.
In Part I the importance of legislative intent/history and the prior 18 U.S.C. § 951 cases were examined in light of how strong the defense’s motion to dismiss and void for vagueness arguments are. But legislative intent and prior caselaw are only two aspects of the legal analysis a judge should conduct when deciding whether a law is unconstitutionally vague or not. Lucky for Duran, other aspects of his vagueness argument against § 951 may be even stronger, legally speaking.
Successfully challenging a law because it is too vague depends on
whether or not someone of "ordinary intelligence" could read the law
and then understand what type of behavior it bans. The "ordinary
intelligence" standard is well-established by the Supreme Court. But § 951 does not specify
what type of behavior a person cannot do at "the direction or control
of a foreign government or official." So if your friend who works at
the Irish Embassy asks you to pick up her dry-cleaning and you do it,
could you be prosecuted under § 951? Nothing in the statute says you
would not be. And former State Department officials agree. Ironically,
the defense is attacking § 951 with the State Department and DOJ’s own
legal memos and letters on § 951. Duran’s motion included as exhibits
two documents written in 1976 by government legal experts that are
respectively addressed 1) to a top State Department official and 2) to
the then head of the DOJ, former Attorney General Edward Levi.
The memo written by the
State Department’s former counselor on international law gives the
hypothetical example, among others, of how a professor could be
prosecuted under section 951 if they are asked by the Ruritanian
Ambassador to write a research paper on water law policy and then they
proceeded to write it before registering with the DOJ as an agent of
Ruritania. Sounds crazy right? The author concludes his 12-page
constitutional analysis of § 951 by stating, "let us be done with [the
statute]." The letter
from a State Dep. legal advisor to the then Attorney General also
doubts § 951’s constitutionality and usefulness, stating that "18
U.S.C. 951 does not contain a definition of the activity which requires
registration, its scope is unclear, and unless it 'has some application
which is not apparent, it is recommended that it be repealed.'" But why
is State even involved in legal opinions since that would obviously
open the door to politicization? Oh, b/c they're input is actually part of the statute.
As referred to in Part I and the defense motion, there is one other 951 case, US vs. Byrne, in which the defendants have won
on the same void for vagueness arguments that Duran is now using. And
that case is also the only other one besides Duran's that I know of
that doesn't fit a "typical" espionage fact pattern. It's uncertain how
much importance the judge will place on the above memos, but the
lawyers for Byrne also used both letters as exhibits in its successful defense from the statute.
Further complicating the DOJ's chances of prosecuting Duran is the most recent decision regarding the Cuban 5. In that case, the 11th Circuit Court ruled that § 951 is a general intent law as supposed to a specific intent law, during the last Cuban 5 appeal. This means that a person does not
need to know that they were supposed to have registered as a foreign
agent in order to be prosecuted under this statute. That decision may
actually be great for Duran. When a statue is constitutionally
challenged because of its "vagueness," a judge may try
to interpret the law as requiring the specific intent of "knowing" you
were breaking the law in order to be guilty. This is done in order to
reduce reasonable confusion over the law, and allow leeway for the
judge to declare the law constitutional, which is usually the
preference of the justice system.
For § 951 such reasoning would go a little like – yes the crime is vague, but you knew you
had to register as a foreign agent, you deliberately failed to
register, so you’re still screwed. Sometimes, the judge must do some
incredible legal acrobatics in order to reach such a conclusion and
rule that a law is still constitutional. However, this option is now not there for Duran's judge,
because the 11th Circuit Court controls what decisions may or may not
be made in Duran's court, the Florida Southern District Court. The
District Court must find another way to save this severely flawed
statute. The 11th would also be the Court of appeal in Duran's case (a
further appeal might take it to the U.S. Supreme Court).
Judge Joan A. Lenard is the one who must decide if she agrees with
the defense's arguments and throw out the charges. She is no stranger
to politically-charged cases, also presiding over the prosecutions of
the Cuban 5 and the second mistrial of the Liberty City 7, an obvious instance
of government over-reaching and political pressure not being enough to
secure convictions. However, it is extremely unlikely that she will
make such a decision before a trial is begun. She could also rule § 951
unconstitutionally vague at a later point in the trial. But since there
will probably be a trial, it is uncertain how the jury will take the
above legal arguments into account. Juries supposedly only decide on
issues of fact, the judge decides on issues of law and
constitutionality; however, issues of law and fact are not always
easily separated, and it would seem this is just the type of case where
opinions will differ.
But opinions should not differ on a few things: The prosecution
appears to have bitten off more than it can chew. Nevertheless, the
political and media jockeying in this case may unfortunately end up
being more important than the legal arguments.
P.S. – A google search of the name of the author of the memo with the hypothetical § 951 examples, Gordon Baldwin,
revealed that the University of Wisconsin law professor passed away
less than two years ago. A colleague of his had this to say about him
shortly after his death:
He was among what seems to be a
vanishing breed of lawyers – true professionals whose loyalty to the
principles of the profession ran extremely deep.
I hope Prosecutor Thomas Mulvihill will take a an honest look at his memo on § 951.