The FCPA and Bribery: We-know-it-when-we-see-it

By: Kelsey Quigley

On October 6, 2014, the United States Supreme Court denied a petition for writ of certiorari that requested review of a case brought under the Foreign Corrupt Practices Act of 1977 (“FCPA”) – the first substantive certiorari petition in the history of the statute.

The FCPA prohibits the “offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value” to a “foreign official,” defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.” In 2011, the United States District Court for the Southern District of Florida convicted two former executives of Miami-based Terra Telecommunications Corp. of various FCPA violations, including the payment of more than $890,000 in bribes to officials at Haiti’s state-owned sole provider of landline telephone services, known as Haiti Teleco. The court sentenced Carlos Rodriguez, Terra’s former vice president, to seven years in prison; Joel Esquenazi, Terra’s former president, received an unprecedented fifteen years in prison – the longest FCPA sentence ever imposed.

The certiorari petition followed the former executives’ unsuccessful appeal to the U.S. Court of Appeals for the Eleventh Circuit, requesting for the very first time in the FCPA’s nearly forty-year history, a review of the legal meaning of “foreign official” under the statute. Specifically, appellants challenged whether officials at state-owned Haiti Teleco were “foreign officials” under the FCPA’s “instrumentality” designation.

In its opinion, the Eleventh Circuit adopted an “instrumentality” interpretation similar to versions utilized by the Department of Justice and the Securities and Exchange Commission, holding that an “instrumentality” is any “entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” Explaining that this legal designation was necessarily “fact-bound,” the Eleventh Circuit provided potential indicia for the two elements required to designate a foreign government “instrumentality:” government control and government function. First, to determine government control, the Eleventh Circuit articulated, among other potential considerations, a government’s ability to hire and fire the entity’s employees and any government majority interest in the entity’s operations and profits – particularly in the context financial backing. Second, to assess whether the entity performs a function that the foreign government treats “as its own,” the Eleventh Circuit suggested that juries look to “whether the entity has a monopoly over the function it exists to carry out; whether the government subsidizes the costs associated with the entity providing services; whether the entity provides services to the public at large in the foreign country; and whether the public and the government of that foreign country generally perceive the entity to be performing a governmental function.” U.S. v. Esquenazi, 752 F.3d 912 (2014).

In the petition to the Supreme Court, counsel for Esquenazi and Rodriguez primarily challenged the adoption of the Eleventh Circuit’s “unacceptably broad,” “we-know-it-when-we-see-it” interpretation of a government “instrumentality.” Indeed, at its outer limits, the Eleventh Circuit’s definition seemed “illogical.” Theoretically, “a janitor working for U.S. Government subsidized General Motors could qualify as a ‘foreign official’ if General Motors were located overseas.” More, the petition explained that with this interpretation the statute would extend to “doctors, pharmacists, lab technicians and other health professionals who are employed by state-owned facilities.” These hypotheticals, while thought provoking, arguably overlooked the Eleventh Circuit’s practically fact-driven focus for discerning a foreign government’s “instrumentality.” Using the petition’s own example, General Motors may presently be under “government control” (having recently emerged from a government-backed Chapter 11 bankruptcy), but the company does not meet the Eleventh Circuit’s second element, government function. Along with individual shareholders, GM’s largest beneficial owners are both the Canadian and United States governments; the company does not enjoy a monopoly in American or in Canadian automobile sales; and the public does not perceive GM as serving a “governmental function.” Despite this inconsistency, counsel for the convicted former executives convincingly advocated for the adoption of an unambiguous formal definition of “foreign official” under the FCPA, especially as increasingly severe criminal sentences are imposed for FCPA violations.

The petition also contended that, in drafting the FCPA, Congress intended for a narrow interpretation of the term “instrumentality.” For example, the Foreign Sovereign Immunities Act (“FSIA”), passed just one year before the FCPA in 1976, specifically defines an “instrumentality” as any entity with a “majority of whose shares or other ownership interest is owned by a foreign state or political subdivisions.” Though this language likely applied to state-owned and operated Haiti Telecomm, petitioners argued that the absence of this language from the FCPA “warrants construing ‘instrumentality’ as excluding state-owned or state-controlled enterprises that are not political subdivisions and that do not perform core, traditional governmental functions.” Congress could have included the FSIA’s previously established definition in the FCPA, but chose not to: “[i]f Congress desires to go further [in defining an “instrumentality”…] it must speak more clearly than it has.”

Furthermore, in a joint amicus curae brief, free-market advocates Washington Legal Foundation and Independence Institute acknowledged that the definition of “foreign official” is “the single greatest source of confusion regarding the scope of the FCPA,” and thus of great international business interest. Therefore, as the petition noted, “the time is now ripe for this Court to settle the meaning of instrumentality under the FCPA” – as FCPA actions continue to pertain to “individuals who are not traditional government officials,” and before federal appeals courts publish conflicting opinions. It urged that the Supreme Court settle the question, so that valuable international business officials would not “be left to wonder whether the  [United States] [g]overnment will unilaterally declare their conduct criminal.”

Despite these legal questions, the Supreme Court declined to review the case. According to Southern Illinois University School of Law’s Professor Mike Koehler (who also authors the FCPA Professor blog), the Supreme Court likely declined the petition for writ of certiorari because of the lack of a “circuit split” on the issue. So far, only the Eleventh Circuit has ruled on the FCPA’s “foreign official” issue – largely a result of the SEC’s, the DOJ’s, and other enforcement agencies’ increasing use of alternative dispute resolution forums in FCPA cases. With only the Eleventh Circuit’s precedent and in a climate favoring alternative dispute resolution, questions surrounding the FCPA’s treatment of “foreign officials” who do not fit the more traditional definition, will likely go unanswered.

In an official statement that accompanied the conviction of Esquenazi and Rodriguez, Assistant Attorney General Lanny Breuer declared that violating the FCPA “is a serious crime with serious consequences” and that the federal government will “continue to hold accountable individuals and companies who engage in such corruption.” And yet, the Supreme Court persists in declining to review a fundamental tenet of the statute – what constitutes a “foreign official.” As successful FCPA actions become more prevalent, and especially as the subsequent punishments become increasingly severe, resolving the statute’s ambiguities will become critical to the equitable enforcement of international justice.

Kelsey Quigley is a J.D. Candidate at Berkeley Law. She is a student contributor for Travaux.

The CrISIS in U.S. Foreign Policy and The Rule of Law

By: Alexander J. Brock

As President Obama prepares to address the United Nations (UN) General Assembly in New York today to help build an international coalition in the fight against the Islamic State in Iraq and Syria (ISIS), he may have some tough questions to answer. As some have been quick to point out, the strikes earlier today on ISIS’s de facto capital, the Syrian city of Raqqa, may very well be a violation of international law of armed conflict and of the UN charter. The lack of a clear legal justification for the administration’s actions in Syria is not an isolated incident. Rather, it is just the latest in a series of legally questionable responses that the administration has made in the Middle East over the last four years. The fact is that the popular uprisings that have swept across the Middle East beginning in late 2010 have revealed an anachronistic foreign policy strategy and legal mechanisms ill-equipped to address the new reality in a region that has undergone fundamental change. Washington’s inability to adapt its approach to the Arab world stems from the lack of an overarching strategic vision for the region and America’s role in it.

Responding to ISIS, the AUMFs, and Self-Defense

The White House has received extensive criticism for its position on the domestic legality of the air strikes against ISIS, which the administration has sought to justify under a 2001 Authorization to Use Military Force (AUMF) that was enacted to enable attacks on al Qaeda for its involvement in the September 11, 2001 terrorist attacks, and also under a 2002 AUMF that authorized the war in Iraq. With these as statutory authority, the administration claims, the President has satisfied the requirements of the War Powers Act and therefore does not need congressional authorization.

Administration officials, however, have stated a number of times in the past that the president had desired to repeal the 2001 AUMF, saying there was a need for discipline so as to avoid being “drawn into more wars we don’t need to fight,” or, “grant[ing] presidents unbound powers more suited for traditional armed conflicts between nation states.” For Obama now to seek the protection offered him by the AUMF is awkward at best, and illegal at worst: the AUMF, according to critics, was clearly not intended to cover groups like ISIS, which formally split with al Qaeda earlier this year. As for the 2002 law that authorized the Iraq war, this position, too, seems at odds with past statements from high-level administration officials: just a few months ago, National Security Advisor Susan Rice wrote in a letter to Speaker of the House John Boehner, “with American troops having completed their withdrawal from Iraq…the Iraq AUMF is no longer used for any U.S. government activities and the Administration fully supports its repeal.” To make matters more confusing, the White House maintains that it continues to support the law’s repeal, despite using it as authority for the offensive.

Another looming problem for President Obama is the possibility that his actions in Syria violate international law.

The strikes against ISIS in Iraq are relatively well-founded: they are being carried out with the consent (and indeed at the request) of the Iraqi central government in Baghdad, and thus constitute an act of collective self-defense, one of the permissible causes for military action under Article 51 of the UN Charter.

In Syria, however, President Bashar al-Assad has made no such request, nor has he given consent for the attacks and, as a result, the United States’ military operations seem to violate the sovereignty of the Syrian state.

In the absence of Assad’s permission or a UN Security Council resolution, the administration has chosen to depict the fight in Syria as an extension of the collective self-defense argument for Iraq, claiming that ISIS fighters have attacked Iraq from safe havens within Syrian territory. It also names the existence of U.S. personnel inside Iraq, and invokes the right to defend the security of those personnel.

The issue is not whether these legal arguments are sound, but rather to show that this step was even necessary. The current legal mechanisms at the administration’s disposal do not reflect the reality on the ground in the Middle East since the popular uprisings of 2010, where the landscape has changed considerably, but rather a different period long ago. To need to resort to the argument of collective self-defense, i.e. that attacks in Syria are actually on behalf of Iraq for its self-defense, in order to launch attacks on what is an obviously dangerous terrorist group, shows that something is lacking in the President’s legal toolkit.

“Making It Up as We Go”

But the most recent crisis in Iraq and Syria is just the latest symptom of a much broader phenomenon in American foreign policy in the Middle East of “making it up as we go.” It was only one year ago that the President sought congressional authorization to carry out strikes against the Assad regime in Syria for its use of chemical weapons, which Obama had deemed a “red line.” The arguments that the administration advanced in support of a military strike were hard to pin down as they changed from day to day. They ranged, on one hand, from the humanitarian and the moral, with Secretary Kerry’s statement that, “the indiscriminate slaughter of civilians…by chemical weapons is a moral obscenity” to, on the other hand, arguments of deterrence, claiming that other dictators would consider using chemical weapons if they saw they could do so with impunity, and then, finally, to the purely punitive, wanting to punish Assad for such a flagrant violation of international norms.

The questions surrounding the legality of a strike on Syria were as numerous as the administration’s justifications for it. In the absence of a resolution from the UN Security Council, which was almost certainly doomed to fail because of Assad-ally Russia’s veto power, the only other acceptable circumstance for military intervention is “national or collective self-defense,” as far as the United Nations is concerned, and the administration never made that argument. Even if it had put collective self-defense forward as the justification, the Syrian rebels would have had to request the intervention and the White House would have had to recognize rebel forces as the legitimate government in Syria—something the administration was certainly not prepared to do. The deterrence argument, too, would only be actionable with a UN Security Council resolution. And the “humanitarian intervention” argument obscured more than it clarified—why was it that a relatively small amount of chemical weapons, used in what appeared to be a limited location in an isolated incident in August 2013 that killed 1,400 people, justified a humanitarian intervention, but the almost 70,000 people who had been killed through conventional warfare as of August 1, 2013, did not?

The administration was ultimately spared further articulation of its legal justification for an attack on Syria for crossing the President’s “red line,” with the diplomatic solution spearheaded by Russia.

Aiding Egypt?

The recent political turmoil in Egypt, too, has revealed the Obama administration’s lack of a cohesive framework for handling regional dynamics. This was brought into sharp relief with the July 3, 2013 coup that ousted President Mohammed Morsi of the Muslim Brotherhood. Under Section 7008 of the FY12 Consolidated Appropriations Act (P.L. 112-74), the United States is prohibited from providing aid to, “…the government of any country whose duly elected head of government is deposed by military coup d’etat or decree…or a coup d’etat or decree in which the military plays a decisive role.” Neither Section 7008, nor any other provision of U.S. law offers a definition of a “coup” or a “coup d’etat.” Indeed, analysts and observers both in the United States and in Egypt had heated debates over whether what happened in Cairo on July 3 was a coup or not. In Egypt, labeling the event as a “coup” indicated one’s political affiliation with the Muslim Brotherhood or its supporters, and those who called it a “popular revolution,” represented some form of the status quo ante from the Mubarak era, and heated debate permeated the popular press across the country. In Washington, too, controversy surrounded the “coup-not-coup” issue, in no small part because of the Obama administration’s choice to call it neither.

Here, though, the Obama administration was confronted with what the law required on the one hand, and with the reality that the new military-led regime in Cairo was sure to be friendlier toward American interests than that of the Muslim Brotherhood on the other hand. To label the military takeover as a coup, and thus suspend aid, would surely be consistent with U.S. support for the emergence of democracy in the Middle East, and yet such a move risked alienating a much-needed potential ally in the region in the form of the new government led by Field Marshal Abdel Fattah al-Sisi. White House officials consistently refused to label what had happened in Egypt a “coup,” despite all the evidence to the contrary, and as a result the aid continued to flow to Cairo even as the new regime performed brutal crackdowns on protesters and other supporters of the Muslim Brotherhood, beating and imprisoning them in blatant violations of human rights. But Washington, perhaps out of desperation for a recognizable government in the Arab world, ignored its own laws and the principles of democracy.

Reflecting on Libya

 Finally, going back to 2011, there was the military intervention in Libya. The justification put forth by the Obama administration was in line with the U.N. Security Council Resolution 1973, which provides for intervention “to protect civilians and civilian populated areas under threat of attack.” However, this humanitarian argument soon morphed into a mission aimed at achieving regime change. But the stated purposes of the intervention, and the arguments justifying that intervention, did not stop there. As Micah Zenko outlined on his blog with the Council on Foreign Relations, there were a number of different objectives and incentives behind joining the NATO-led military intervention in Libya, despite the fact that it was a country of little strategic interest to the United States. There was the thought that it would communicate a message to other dictators in the region about using force to quell peaceful protests; that it would support the Libyan rebels, who had displayed impressive credentials to figures such as Senator John McCain during his visits there; that it would be friendly reciprocity to American allies in Europe who offered assistance with the war in Afghanistan; and finally, it was believed that the operation would be easy to complete in a short amount of time. What began as an operation that sought only to protect Libyan civilians from the brutality of its eccentric leader turned into what was essentially yet another episode of U.S.-sponsored regime change in an Arab country.

Conclusion

The Obama administration has adopted a “crisis management” approach to the Middle East since early 2011. No longer able to form a foreign policy based on reliance on friendly authoritarian rulers in the region to keep the peace and to help manage crises as they arise, Washington finds itself grasping at straws in trying to justify its decisions, leaning on decades-old statutes intended to govern entirely different circumstances, and ignoring both its own legislation and international law when they prove to be inconvenient to the circumstances. This has damaged American credibility in the world. The foreign policy establishment and senior White House officials need to acknowledge that the Middle East as they knew it for the last forty years is no more, and there is an urgent need to design and articulate a clear strategic vision for engaging with the new Middle East if the United States wishes to continue to lead. Without such a vision, the same panicked and mercurial policymaking that has characterized this administration’s decisions in the region will continue for years to come.

Alex Brock is a J.D. Candidate at Berkeley Law.  He is a student contributor for Travaux.

What’s the “Big Deal”? Potholes on the Road to an EU-US Bilateral Trade Agreement

By: Remi Moncel, Assistant Contributor

This is potentially a very big deal.”  That’s if you ask Michael Forman of the US National Security Council. President Obama set the wheels in motion for a trade agreement between the United States and the European Union when he endorsed the idea during his 2013 State of the Union Address. Some European leaders are equally enthusiastic.

The Stakes

The reason this would be a “big deal” is that the US and the EU are top trading partners and, taken together, they represent half of global economic output and one-third of world trade.

A March 2013 report for the European Commission estimates that a bilateral agreement could boost exports of EU goods and services by 6% and US ones by 8%. Economic gains for the two sides would depend on the scope of the deal, but they could reach as high as EUR 119 billion (USD 152bn) a year for the EU and EUR 95 billion (USD 121) a year for the US.

Considering today’s weak economic recovery and remaining fiscal instability, this is an attractive proposition for countries looking to create jobs and bring in more revenue without straining public finances.

The slow pace of the multilateral trade negotiations under the World Trade Organization also makes a bilateral pact attractive. Yet publicly, the leaders on both sides state that they want to reach a bilateral deal in order to reinvigorate, rather than bypass, the multilateral talks. In any case, an agreement between the two blocks could de facto set, or at least influence, new global production and trade standards.

The Blueprint

We are still far from a concrete deal. Negotiations would not conclude until at least late 2014. Still, we have hints of what a future agreement might include.

The Transatlantic Economic Council, a political body aimed at promoting economic cooperation between the EU and the US, released a report in early 2013 recommending the adoption of a bilateral trade agreement. Although the final deal may depart from these recommendations, the report lays out a roadmap that spans duties, regulatory harmonization, intellectual property and even public subsidies of state-owned enterprises.

EU Trade Commissioner Karel De Gucht expressed a desire to see product tariffs, currently at four percent on average, drop to zero down the line across a range of sectors. As an example, removing tariffs and harmonizing safety standards could boost exports of European cars to the US by 149 percent.

Mr. De Gucht suggested that the partners could reach a “comprehensive agreement,” or alternatively strike a more limited “living agreement” that would continue to develop over time.

There are indications that the pact would not include financial regulations, which are the subject of discussions under other international fora. But it would include market access in the financial sector.

The Challenges

The US and the EU have tried this before. The pair has been talking of a trade pact since the 1990s. But discussions broke down over agricultural issues later in the decade.

This time too, some possible roadblocks loom. The following issues are illustrative:

  • Politics: While both sides generally view trade as a path to domestic economic growth, there is some resistance. One concern is that increased trade with the other side will outsource rather than create jobs. Some Europeans also worry that a bilateral pact might force the EU to water down its own products regulations. On the American side, the President will aim to strike a deal that benefits not just major US companies, but also small and medium enterprises.
  • Public procurement: The Europeans are keen on gaining access to the public markets in the US. Today, many US public procurement contracts contain “Buy American” clauses, which restrict the ability of foreign providers to bid on those markets.
  • Public subsidies: This issue plays out most visibly in two areas. The first is aviation, where Boeing and Airbus have had a long running dispute over the public subsidies they receive from national governments. The two manufacturers have turned to the WTO resolve their dispute. The second area is agriculture; however contentious farm subsidies will likely not be part of the discussion.
  • Agriculture: Although agricultural subsidies appear off the table, farming and food regulations will be hotly debated. The Europeans have long been wary of genetically modified organisms (GMOs). They will face pressure from the Americans to let US crops and foodstuffs that contain GMOs into the EU market, where regulations are tighter. The same is true of poultry and meat treated with chlorine washes and growth hormones.
  • Privacy: With the rise of online service providers and social media, privacy has become a growing source of contention between the two partners. In the US, companies like Facebook and Google face a combination of state and federal regulations, and there is greater reliance on the market and the consumer to restrain excessive practices. By contrast, the EU has been enacting continent-wide privacy restrictions and is scrutinizing the practices of major online players.

In sum, real challenges stand in the way of a bilateral trade deal between the US and the EU. They have doomed past attempts at reaching an agreement, but things may be different this time. The stakes are high, particularly in the current economic and fiscal climate, and the leaders on both sides are determined to find common ground.