IELR Blog

Official Blog of the International Enforcement Law Reporter

Archives for January 2018

Justice Department Charges Eight Individuals with “Deceptive Trading Practices” on Commodities Markets

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On Monday, January 29, 2018, the Justice Department announced charges against eight individuals accused of manipulating U.S. commodities markets for financial gain. Seven of the eight individuals were charged with spoofing. Spoofing refers to a fraud tactic that involves the placing of hundreds to thousands of “spoof orders” – orders that the spoofer does not intend to trade – in order to incentive market participants to buy, sell, or trade at manipulated prices. In doing so, spoofing fools market participants to make their investment decisions based on a false perception of supply and demand.

The individuals charged are James Vorley, 37, of the United Kingdom; Cedric Chanu, 39, a French citizen; Edward Bases, 55, of New Canaan, Connecticut; John Pacilio, 53, of Southport, Connecticut; Jitesh Thakkar, 41, of Naperville, Illinois; Jiongsheng (“Jim”) Zhao, 30, of Australia; Andre Flotron, 53, a Swiss national residing in Wayne, New Jersey; and Krishna Mohan, 33, of New York, New York. Vorley, Chanu, Bases, Pacilio, Thakkar, and Jiongsheng were charged in the Northern District of Illinois, Flotron was charged in the District of Connecticut, and Mohan was charged in the Southern District of Texas. The spoofers primarily targeted the precious metals and E-mini futures contracts markets.

The charges constitute the largest futures market criminal enforcement action in the Justice Department’s history.

In prepared remarks delivered on Monday, Acting Assistant Attorney General John P. Cronan highlighted the assortment of methods used to identify market manipulation and gather evidence in the cases. In addition “traditional law enforcement techniques” and cooperation with the private sector, authorities used data analysis methods to “identify spoofing patterns through sophisticated analysis of market-level data.” Cronan noted that, in the future, the Department expects to make even greater use of data analysis to identify and counter spoofing.

For more coverage and analysis of this enforcement action, see the February 2018 issue of the International Enforcement Law Reporter.

Despite International Protest, Trump Issues Order to Keep Guantanamo Bay Open Indefinitely

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On January 30, shortly before delivering his first State of the Union address, President Trump signed an executive order rolling back efforts by his predecessor, Barack Obama, to close Guantanamo Bay, vowing instead to keep it open indefinitely. Trump also indicated that he intends to use the prison to detain future terrorism suspects, which would be the first time in a decade that new prisoners have been brought into the facility. Although President Obama was unable to overcome opposition in order to close the facility for good, his administration was able to transfer a total of 196 of its prisoners overseas.  Now 41 detainees remain, only a small minority of who have ever been charged with a crime or completed trial in a military court.

In the order itself, the Trump administration insists that keeping Guantanamo open is consistent with the law, as outlined in the 2001 Authorization for Use of Military Force. The AUMF was a response to the 9/11 terrorist attacks and gave the United States full authorization “to detain certain persons who were a part of… al-Qa’ida” as well as “associated forces engaged in hostilities against the United States”. Because the United States is still at war with al-Qa’ida, as well as the Islamic State, the administration argues that it is necessary that the facility remain in use. Furthermore, the order states that all detainees transferred to Guantanamo in the future will have to undergo “procedures for periodic review”, in order to “determine whether continued law of war detention is necessary” in the interests of U.S. national security.

The New York Times reports that the immediate effect of the order is not as important as the message it sends, and warns that “it may intensify criticism from those who argued that the prison is a stain on America’s global reputation”. Wells Dixon, an attorney at the Center for Constitutional Rights who represents some of the prison’s detainees, argues that the closure of Guantanamo is not only necessary for humanitarian purposes, but also “‘imperative to the national security of the United States’”. Even President George W. Bush eventually came to the conclusion that the prison was doing more harm than good, according to his former legal adviser John Bellinger. Others worry that the administration is exposing itself to court challenges over its implementation of U.S. counterterrorism law, or that keeping Guantanamo open will endanger Americans abroad, particularly those in the Middle East, by subjecting them to retaliation.

For more on the possible legal implications of this order, see Bruce Zagaris’ article entitled “Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial”, in the January 2018 edition of the International Law Enforcement Reporter.

Treasury Issues CAATSA Reports on Russian Senior Foreign Political Figures and Oligarchs

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On January 29, 2018, the U.S. Department of the Treasury, pursuant to the Countering America’s Adversaries Through Sanctions Act of 2017 (CAATSA), delivered five reports to the designated Congressional committees:

Sec. 241:  Report on Senior Foreign Political Figures and Oligarchs in the Russian Federal;

Sec. 104(e):  Report on Contributions to Iran’s Ballistic Missile Program:

Sec. 242:  Report on Effects of Expanding Sanctions to Include Sovereign Debt and Derivative Products;

Sec. 273:  Examining the Counter-Terror Financing Role of the Department of the Treasury in Embassies; and,

Sec. 311(d):  Designation of Additional Persons Related to North Korea.

Section 241  of CAATSA  required Treasury, in consultation with the Department of State and the Director of National Intelligence, to provide a report regarding senior political figures and oligarchs in the Russian Federation and Russian parastatal entities.

The names of senior political figures and oligarchs in the unclassified version of the report were selected based on objective criteria drawn from publicly available sources.

  • Senior political figures:  The report included individuals who are: i) senior members of the Russian Presidential Administration; ii) members of the Russian Cabinet, Cabinet-rank ministers, and heads of other major executive agencies; iii) other senior political leaders, including the leadership of the State Duma and Federation Council, other members of the Russian Security Council, and senior executives at state-owned enterprises.
  • Oligarchs: The report included Russian individuals with an estimated net worth of $1 billion or more.
  • Parastatals:  The report analyzed entities that are at least 25% owned by the Government of Russia and that had about $2 billion or more in revenues in 2016.

Treasury’s press release states   the report is not a sanctions list.  The inclusion of individuals or entities in any portion of the report does not impose sanctions on those individuals or entities. Nor does it create any other restrictions, prohibitions, or limitations on dealings with such persons by either U.S. or foreign persons. Treasury states that inclusion in the report does not constitute the determination by any agency that any of the individuals or entities meet the criteria for designation under the sanctions program.

The law is designed to punish Russia for its alleged interference in the 2016 U.S. elections and its actions in Ukraine.

The unclassified sections has 210 https://www.cnn.com/2018/01/30/politics/full-us-list-of-russian-oligarchs-with-putin-ties-intl/index.html names, 114 senior political figures and 96 oligarchs.

On Jan. 30, 2018, the Trump administration said  it will not implement Russia-related sanctions mandated by Congress last year because the threat itself is acting as a “deterrent.”

Although inclusion on the so-called “Putin” list does not mean the persons have been sanctioned, the consequences are potentially significant; (1) financial institutions who subscribe to anti-money laundering and international enforcement watch lists will now encounter their names and some compliance officers will likely determine that the individuals are “high-risk” persons, requiring financial institutions to either close their accounts or pay enhanced due diligence; (2) some of the listed  individuals may encounter problems when they travel internationally; and (3) some of the listed persons will likely have trouble doing business,  because of the potential negative taint of doing business with listed persons, especially due to the risk that the may be sanctioned in the future.

A more comprehensive discussion  will appear in the February issue of the IELR.

Court Sentences S. Korean National & US Resident to 6 Months in Jail for FBAR Violations on Swiss account

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On June 25, 2018, U.S. District Court Judge Brinkema in the U.S. District Court for the Eastern District of Virginia sentenced Hyong Kwon Kim, a citizen of South Korea and, since 1998, a legal permanent resident of the United States, resided in Massachusetts and later in Connecticut, to serve a sentence of six-months imprisonment for failing to report accounts in Switzerland with a value exceeding $28 million.  The sentence took into account Kim’s cooperation with the government, which occurred for more than a five-year span.

Kim conspired with a host of foreign enablers, including Dr. Edgar H. Paltzer, his Swiss attorney who pleaded guilty in 2013 in the Southern District of New York, and bankers to conceal his assets and income in Swiss accounts held in his own name, the name of a relative, and in the names of sham corporate entities.

In 2008, as Credit Suisse closed accounts held in the names of sham entities owned by persons residing in the United States, Kim refused to bring his assets to the United States. Instead, he transferred his assets to another Swiss bank. Kim send coded messages from the United States to his Swiss banker in order to maintain control of his account.  Undoubtedly, Kim’s conduct to continue to try to hide his assets was an exacerbating fact.

The Department of Justice announced the sentence in a press release.

The IELR will discuss the case in more detail  in the February issue.

Federal Judge Orders Military to Notify ACLU before Transferring Suspected ISIS Fighter and US Citizen

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A federal judge for the District Court for the District of Columbia ruled on January 23rd that the Department of Defense must give both the court and the ACLU three days’ notice before it seeks to transfer a United States citizen and suspected ISIS fighter into the custody of another nation. The individual that the ACLU is representing is believed to be a dual citizen of the United States and Saudi Arabia and was turned over to American troops after being caught by a Syrian militia last September. He has since been imprisoned in Iraq for more than four months under suspicions of being an enemy combatant with ties to the Islamic State.

The individual in question, who has remained unidentified, asked for a lawyer last month after being informed of the Miranda rights and the American Civil Liberties Union (ACLU) offered to meet with him. Although the Trump administration argued that the ACLU had no connection to the man and therefore no right to represent him, the court ordered them to allow the ACLU “immediate and unmonitored access to [the] Petitioner to determine whether he wanted the ACLUF to pursue… action on his behalf”. The ACLU notified the court on January 5th that the man had agreed to allow them to represent him in a habeas corpus lawsuit challenging his detention.

The point at issue was whether or not the petitioner should be transferred to another country’s custody before the court reached a decision on his petition and, if so, whether or not he should be allowed to contest the transfer. Although the Defense Department did not give any specific details as to whether or not the petitioner would be transferred, they admitted they “may seek to transfer him prior to [the] court’s decision”. The ACLU, on the petitioner’s behalf, requested that the court forbid the government from completing the transfer until a decision is made.

In reviewing the case, the court first determined that the petitioner had shown “a likelihood of success on the merits of his claim”, the claim being that restrictions should be placed on the ability of the Defense Department to transfer him in the middle of litigation. Furthermore, the Defense Department failed to establish that delaying the transfer would disturb relations between the United States and the country in question. However, the court noted that it did not deem it necessary to restrict the transfer altogether, because the Department of Defense had not yet officially announced its intention to transfer the petitioner.

The court ultimately decided that although it could not delay or prevent the transfer itself, it would be prudent to compel the Defense Department to notify both the court and the petitioner’s counsel at least three days prior to the scheduled transfer, in order to give the petitioner time to contest it should he so desire.  As the New York Times noted, this case is significant because it introduces important implications into the rights of American citizens and the extent of power wielded by the government in cases related to national security. As Jonathan Hafetz, the ACLU attorney representing the petitioner, stated after the court’s decision was made: “‘this ruling helps to ensure that this citizen’s rights are respected and that he will receive due process in an American court.’”

The Latest on U.S. v Microsoft: Microsoft Files Respondent Brief, Still More Amici Curiae Weigh In

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On Thursday, January 11, Microsoft filed its brief in the U.S. v Microsoft case set to go before the Supreme Court in the 2017-2018 term. The central question in the case is whether the Stored Communications Act allows the U.S. government to compel an electronic services provider, through a probable-cause-based warrant, to disclose electronic communications stored abroad.  For further background on this case, see our past coverage on the IELR Blog here and here.

Microsoft argues that Congress did not envision the Stored Communications Act to apply overseas. In 1986, when the statute was enacted, it was unimaginable that one day governments could secure data from overseas rapidly and inexpensively. Under the presumption against extraterritoriality established by Supreme Court precedent, legislation does not apply extraterritorially unless Congress clearly states or intends otherwise. Thus, the SCA has no extraterritorial application.

According to Microsoft, a warrant that compels the copying and importation of electronic communications stored overseas is an impermissible application of the SCA. The government argues that it is seeking a domestic application of the warrant, because the ultimate disclosure of the emails would occur in the U.S. But the SCA protects the security of “communications in electronic storage,” not “disclosure.” Thus, the Court should interpret the statute to apply to “domestically stored communications,” not “domestic disclosures of communications.” It follows that a warrant seeking to compel the disclosure of communications stored abroad (regardless of where they are ultimately disclosed) is extraterritorial.

Microsoft then scrutinizes the Government’s claim that “a person who complies with a subpoena [cannot] become a government agent simply by collecting and producing evidence in its possession.” Microsoft denounces the claim as misleading; the act of copying and disclosing the email content to the Government would involve the execution of a warrant, not a subpoena.

Interestingly, Microsoft cites the “international discord” over the case as confirmation” that “the warrant entails an impermissible extraterritorial application of the SCA.” Indeed, U.S. v. Microsoft is unusual for the amount of interest and input it has generated from foreign governments, companies, non-profits, and individuals. In a blog post  published on January 19, 2018, Microsoft’s President and Chief Legal Officer, Brad Smith, noted that thus far 23 amicus briefs by 289 entities and from 37 countries have been submitted in support of Microsoft.  Even more striking is the sheer range of political ideologies among the supporters. U.S. Senators Orrin Hatch (R-UT) and Christopher Coons (D-DE), the Chamber of Commerce, the ACLU, Vox Media and Fox News are among the domestic supporters.

See the full list of signatories here.

Case Western Reserve University International Criminal Law LL.M Program

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From Michael P. Scharf,  Dean of Case Western University School of Law:  

As documented by the developments covered in the WCPW e-newsletter, international criminal law has become one of the fastest growing and highest profile areas of law.  Taught by leading experts in the field, the Case Western Reserve University LL.M in International Criminal law will provide individuals who hold a degree in law with an in-depth knowledge of international criminal law and procedure, international humanitarian law, and national security law, and will equip them to practice international criminal law before international tribunals or national courts.

Now in its tenth year, there are seven unique aspects of the Case Western Reserve International Criminal Law LLM, which I’d like to especially call to your attention:

First, Case Western Reserve is known around the world for the strength of its international criminal law program.  Program faculty include a former State Department official, a former Senior Counsel at the IMF, the former head of the International Branch in the Navy Judge Advocate General’s International and Operational Law Division, a Senior Counsel for Human Rights First – Law and Security Program, a Senior Coast Guard lawyer, and the senior trial attorney in the Charles Taylor trial before the Special Court for Sierra Leone.  Reflecting the strength of our program, in 2005, the Chief Prosecutor of the Special Court for Sierra Leone nominated our War Crimes Research initiative for the Nobel Peace Prize, and in 2008 the Case Western team won the World Championship round of the Jessup International Law Moot Court Competition.  Based on a survey of international law professors, the 2018 rankings issue of US News and World Report ranked our program among the top twelve international law programs in the nation, and International Jurist magazine ranks our LLM program best in the country.

Second, our International Criminal Law LL.M Program is designed as an elite and intimate program, with enrollment limited to approximately five LL.M students per year.  We provide generous scholarships and one of those students may be a full-scholarship “Distinguished Visiting Jurist,” whose presence is designed to enhance the program and facilitate networking.   Our last Distinguished Jurist was Duncan Gaswaga, currently a judge on Uganda’s High Court War Crimes Chamber.

Third, among the dozen international criminal law-related courses we offer, you can enroll in the War Crimes Research Lab, taught by former Chief Trial Attorney of the Special Court for Sierra Leone, Jim Johnson, in which students write research memoranda at the request of international war crimes tribunals, piracy courts, the Guantanamo Bay Military Commissions, and INTERPOL on cutting edge issues pending before those institutions.

Fourth, as part of the program, our International Criminal Law LL.M students may receive a semester’s worth of credit by interning at one of the international war crimes tribunals, a Piracy Court, UNODC, the General Counsel’s Office of the U.S. Coast Guard, or INTERPOL in the spring semester.

Fifth, our international Criminal Law LL.M students are invited to be editors of War Crimes Prosecution Watch, the e-newsletter that goes out every two weeks to war crimes prosecutors, judges, and more than 15,000 experts in the field.

Sixth, we host several major lectures and an annual international criminal law-related symposium, which bring dozens of leading experts in the field to the Law School each year.  Recent speakers have included: Sean Murphy, ILC Special Rapporteur for the Convention on Crimes Against Humanity; Brenda Hollis, Chief Prosecutor of the Special Court for Sierra Leone; Stephen Rapp, US Ambassador at Large for War Crimes Issues; Hon. Christine Van den Wyngaert, Judge of the ICC; Sir Christopher Greenwood, UK Judge on the International Court of Justice; Prince Zeid Ra’ad Al-Hussein, UN High Commissioner for Human Rights; Robert Petit, Chief Prosecutor of the Extraordinary Chambers in the Courts of Cambodia; Richard Goldstone, former Chief Prosecutor of the ICTY and ICTR and author of the Goldstone Commission Report on Gaza; William Schabas, Commissioner on the International Truth Commission for Sierra Leone; Fatua Bensuada , the Chief Prosecutor of the ICC; and the late Cherif Bassiouni who was known as “the father of international criminal law.”

Finally, we have placed 135 students in externships at the six international war crimes tribunals, and our alumni include individuals who have served as a member of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, a member of the Office of the Prosecutor of the Cambodia Tribunal; a Legal Adviser to the Chambers of the International Criminal Court; a member of the Office of the Prosecutor of the Special Tribunal for Lebanon; a prosecutor in the Office of Guantanamo Bay Military Commissions; a lawyer at INTERPOL; several distinguished law professors, and the Judge Advocate General of the US Navy Reserve.

To apply for the International Criminal Law LLM Degree, click: http://law.case.edu/Academics/Degrees/LLM/LLM-in-International-Criminal-Law

To sample one of our International Criminal Law courses (offered free on demand by Coursera), click: https://www.coursera.org/learn/international-criminal-law

Trump Appointee Rules in Favor of Deported Mother in Sixth Circuit Court of Appeals

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Trump Appointee Rules in Favor of Deported Mother in Sixth Circuit Court of Appeals

On January 17, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled in favour of a Mexican mother of four who had been deported the previous year despite the fact that she had been threatened by a drug cartel in her native country. After new evidence following her father’s kidnapping, Maribel Trujillo Diaz had motioned the Board of Immigration Appeals (BIA) to reopen her proceedings. They rejected her appeal on the grounds that “she failed to show that she would be singled out individually for persecution based on her family membership”. After reviewing the BIA’s decision, a federal court in Cincinnati ordered immigration officials to review her case. Despite the fact that many see Trujillo Diaz’s case as an example of the Trump administration’s crackdown on immigration, the circuit court’s opinion was written by Judge John K. Bush, a conservative Trump appointee.

Maribel Trujillo Diaz first came to the United States in 2002 and subsequently had four children. Despite the fact that she had no criminal record, she was apprehended by ICE in 2007 and forced into removal proceedings. She was able to get work authorization and remained in the U.S. In 2012, she testified that she could not return to Mexico because of fear of persecution from the La Familia drug cartel, which had pressured her brother to join in 2010. He had refused and fled to the United States, and Trujillo Diaz feared retribution should she return home. However, since the cartel had not personally harmed or threatened her, the immigration judge denied her petition for asylum, and she did not file a petition for review.

In February 2017, Trujillo Diaz’s father was kidnapped by a different cartel called Knights Templar. According to his statement, they were looking for Trujillo Diaz’s brother because he had refused to join the La Familia cartel. They said they knew that both he and Trujillo Diaz had fled to the United States and they threatened “‘to hurt the rest of [his] family  if they could not get their hands on Omar Daniel or Maribel’”. With new evidence of a personal grudge against her, Trujillo Diaz petitioned to have her case reopened. Just two days later she was apprehended by immigration officials and was deported eight days afterwards. In May 2017 the BIA reviewed her case and determined that she hadn’t shown sufficient evidence of being singled out for persecution or of changed-country-conditions.

The Court of Appeals for the Sixth Circuit determined that the only way the BIA could have reasonably decided that there was no evidence that Trujillo Diaz was being singled out individually was if they arbitrarily dismissed her father’s testimony. The court reasoned that this was an abuse of discretion and a failure to properly consider new evidence. The court decided against the BIA’s ruling and in favor of Trujillo Diaz, granting the petition and remanding to the BIA “for reconsideration consistent with this opinion”.

For more on this:

Trump judicial appointee rules in favor of deported Mexican mother of four – The Washington Post

IRS Issues Notice for Denying, Canceling, and Limiting Passports to Seriously Delinquent Taxpayers

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On January 16, 2018, the Internal Revenue Service issued a notice, furnishing taxpayers with information about the implementation of new section 7345 of the Internal Revenue Code (Code), enacted by Section 32101 of Fixing America’s Surface Transportation (FAST) Act, Pub. L.114–94, on December 4, 2015.

Section 32101(a) of the FAST Act added new Code section 7345.  Under it the Department of the Treasury (Treasury) must notify the Department of State (State Department) if a certification is made that an individual has a “seriously delinquent tax debt.”

Such certification or a reversal of such certification may only be made by the Commissioner of Internal Revenue, the Deputy Commissioner for Services and Enforcement of the Internal Revenue Service (IRS), or the Commissioner of an operating division of the IRS (collectively, Commissioner or specified delegate).

Upon receipt of a section 7345 certification, section 32101(e) of the FAST Act provides that the State Department will generally deny an application for issuance or renewal of a passport from such individual, and may revoke or limit a passport previously issued to such individual. The IRS and State Department will begin implementation of these provisions in January of 2018.

Under section 7345(b)(1), a “seriously delinquent tax debt” is an unpaid, legally enforceable, and assessed federal tax liability of an individual, greater than $50,000, and for which:

  • A notice of federal tax lien has been filed under section 6323, and the taxpayer’s right to a hearing under section 6320 has been exhausted or lapsed; or
  • A levy has been issued under section 6331.

Pursuant to section 7345(f), the $50,000 amount is adjusted for inflation each calendar year beginning after 2016.

The $50,000 federal tax liability threshold is calculated by aggregating the total amount of all current tax liabilities for all taxable years and periods meeting the above criteria (including penalties and interest) assessed against an individual.

 

Analysis

The Joint Committee on Taxation estimated that the bill’s revocation or denial of passports to some individuals with tax debts of over $50,000 should net the government $395 million through 2025.

One of the potential problems will be, in the case of taxpayer living or temporarily out of the U.S., the taxpayer may not receive notice of the seriously delinquent tax debt until late in the 30 or 90 day time limits.  Since it may take time for the taxpayer to receive forwarded mail abroad and since resource-deprived agencies, such as the IRS and State Department, may not act, as required by statute, due to lack of capacity, a taxpayer may have difficulties meeting the time limits.

Since the $50,000 threshold triggering the denial, cancellation, or limitation on passports includes the total amount of all current tax liabilities for all taxable years and periods meeting the above criteria (including penalties and interest) assessed against an individual, this amount can be reached easily without knowledge of a taxpayer.

The new law illustrates how the U.S. government is increasingly connect tax debts with travel.  Another recent change is that the names of taxpayers owing more than $100,000 to the IRS are put into the Treasury Enforcement Computer Service (TECS).  When the taxpayer enters the country, his name is flagged by TECS.  An Immigration Customs Enforcement official must then take the taxpayer to secondary inspection and ask a series of questions about his assets, so that the IRS can be able to more easily collect the tax debt.

In 2006, the so called “Reed Amendment” provision was part of immigration reform. The Reed Amendment provision bars re-entry to the U.S. of former citizens who expatriated for a principal tax avoidance purpose in the opinion of the Attorney General.  The responsibility to administer and enforce the provisions was formerly within the Immigration and Nationality Service, which was within the Department of Justice at the time.  In 1996, Janet Reno was the Attorney General of the United States and did not want to implement the law.  Now the INS has been transferred to U.S. Customs and Immigration Service within the Department of Homeland Security.

In an appropriate case, the Revenue Officer can request a Prevent Departure Order.  An ICE Departure Control Order or a Prevent Departure Order is an administrative action similar to the Writ Ne Exeat Republica.

A Prevent Departure Order can prevent a non-U.S. citizen from exiting the U.S., pending the resolution of a collection matter.

The authority for the Prevent Departure Order is contained in 22 C.F.R. § 46.2(a), which states in part: “…No alien shall depart, or attempt to depart from the United States if his departure would be prejudicial to the interest of the United States under the provisions of 46.3.”

In I.R.M., the IRS concludes that 22 C.F.R. § 26.3(h) applies to a collection investigation because it allows ICE to prevent the departure of:

Any alien who is needed in the United States in connection with any investigation or proceeding being, or soon to be, conducted by any official executive, legislative, or judicial agency in the United States or by any governmental  committee, board, bureau, commission, or body in the United States, whether national, state, or local.

The writ ne exeat republica is designed to enable the IRS to collect against a non-U.S. citizen who is about to depart from the U.S. or who no longer resides in the U.S., but is temporarily present in the U.S. and who has transferred his assets outside of the country to avoid payment of his federal tax liability.

The writ ne exeat is a court order, by which a U.S. Marshall is required to arrest and jail a defendant who fails to post bail or other security in a specified amount – I.R.C. § 7402(a) and 28 U.S.C. § 1651.

Litigation is likely against the provisions in FAST to deny, cancel, or limit passports.  Whatever the outcome, linking travel, migration and tax enforcement seems to be gaining momentum.

Motion Challenges Indefinite Detention of 11 Guantanamo Detainees for 16 Years Without Charges or Trial

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On January 11, 2018, on the 16th anniversary of the Guantánamo prison’s opening, the Center for Constitutional Rights (CCR), Reprieve, and co-counsel filed a motion on behalf of 11 men held at the military facility for 16 years, challenging indefinite detention without charges or trial.

The motion argues that  Trump’s proclamation against releasing anyone from Guantánamo, regardless of their circumstances, which has borne out for the first full year of the Trump presidency, is arbitrary and unlawful and amounts to “perpetual detention for detention’s sake.”

In a press release CCR Senior Staff Attorney Pardiss Kebriaei, who represents Sharqawi Al Hajj, said that “continuing indefinite detention after all this time is unprecedented and experimental. Another three or seven years under President Trump may mean a death sentence for men like Sharqawi Al Hajj, who is in poor health and damaged by past torture.”

According to the filing the continued detention is unconstitutional because any legitimate rationale for initially detaining these men has long since expired. Detention 16 years into Guantánamo’s operation, is based only on Trump’s raw antipathy towards Guantánamo prisoners – all foreign-born Muslim men – and Muslims more broadly.

Some of the men participating in the filing allegedly have been detained in Guantánamo for nearly 16 years without charge or trial—detention that has spanned three presidential administrations and five presidential terms.

Two of the petitioners have even been approved for transfer, narrowly missing their chance at release in the final days of the Obama administration.

The CCR press release states that Reprieve attorney Shelby Sullivan-Bennis, who represents prisoners at Guantánamo, said, “Since Guantánamo opened, it’s been clear to all – including U.S. officials – that the detainees were being held on the basis of mistakes, faulty evidence, and forced ‘confessions’. The U.S. has had 16 years to build a case against these men, and yet 28 of 41 prisoners are held without charge or a trial of any kind – a shocking violation of America’s founding principles.

On January 11, 2018, human rights activists, torture survivors, Guantánamo attorneys, 9/11 family members, and members of diverse faith communities rallied outside the White House to mark the 16th anniversary and the continued operation of the Guantánamo Bay prison.  The coalition issued a press release about the rally.  The coalition included the Center for Constitutional Rights, Close Guantanamo, Codepink, Council on American Islamic Relations, Defending Rights and Dissent, Justice for Muslims Collective, National Religious Campaign Against Torture, No More Guantanamos, Reprieve, September 11th Families for Peaceful Tomorrows, Torture Abolition and Survivors Support Coalition, Veterans For Peace, Voices for Creative Nonviolence, Witness Against Torture, and World Can’t Wait.

Meanwhile, a spokeswoman for the Department of Justice declined to comment, saying that officials were reviewing the filing.

As defense counsel to United States citizens abroad, I used to be able to successfully argue that the foreign government had detained my clients for days and weeks without filing charges and/or affording them right to counsel, consular access, etc.  In view of conduct by the U.S. government with respect to Guantánamo detainees, such arguments no longer resonate.

Another consequence of the continued detentions is that, in extradition requests by the U.S. government, especially with respect to national security and Muslim defendants, courts from democratic countries no longer accord the U.S. the benefit of the doubt as they did previously.

Disclaimer

Nothing in this blog constitutes or is intended to constitute legal advice. Neither transmission nor receipt of such materials creates an attorney-client relationship. Blog readers and subscribers should consult with an attorney. This blog may be considered attorney advertising under the rules of some states. The hiring of an attorney is an important decision that should not be based solely upon advertisements. Prior results do not guarantee similar outcomes.

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