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DOJ’s New Christmas List: More Naughty Than Nice

On November 3, 2011, in Drug War, federal, by Scott Alexander Meiner


While most of the news coming out of Lanny Breuer’s November 1st appearance, before the Senate Judiciary Subcommittee on Crime and Terrorism, centered on the Fast and Furious Gunwalker scandal, it bears paying attention to why the Assistant Attorney General of the United States for the Criminal Division was actually there. He was promoting a legislative agenda that includes expansions of civil asset forfeiture, extraterritorial jurisdiction, and wiretap authority. Breuer also promoted legislative changes to allow the use of classified material in civil forfeiture cases and put forth the idea that all vessels and aircraft, owned by US citizens or registered in the US, should become part of US federal jurisdiction even if they are not in United States territory.


Some highlights of AAG Lanny Breuer’s statement and what we might be looking at if the DOJ gets it’s wish list:


 ”The Administration proposes to expand conspiracy liability when controlled substances are destined to the United States from a foreign country.   Under our proposal, members of any conspiracy to distribute controlled substances will be subject to United States jurisdiction when at least one member of the conspiracy intends or knows that the drugs will be unlawfully imported into the United States…. The Administration is recommending a congressional directive to the United States Sentencing Commission, proposed statutory language, and a proposed sentencing guideline to yield a sentencing range of 37 – 46 months for a first offender, absent adjustments or departures.”


Expanding US jurisdiction to include actors that are on foreign soil and party to a conspiracy to import controlled substances, that they may not be aware of, is problematic to say the least. This would seem to include any party that that is legally distributing controlled substances, licit in the originating jurisdiction, if the Department of Justice finds that someone in the licit conspiracy has intent to bring those substances into the United States where the substances would be illegal. Prosecuted actors need not have any intent to break US law, knowledge that another party is intending to break US law, or act contrary to the laws of their residing jurisdiction.

“POCA would update and clarify the current list of specified unlawful activities that are predicates for money laundering to include all domestic felonies except those specifically exempted, state felonies and federal misdemeanors that are included in the existing racketeering predicates, and any foreign crimes that would be felonies in the United States .   The changes sought would also increase the scope and effect of anti-money laundering provisions in laws concerning promotional money laundering, bulk cash smuggling, tax evasion, and money laundering through informal value transfer systems, and would clarify the application of the law to commingled funds and aggregated transactions.   Finally, the proposal also extends wiretap authority for money laundering offenses, and it extends the extraterritorial provision for money laundering to non-United States citizens where their extraterritorial acts in violation of 18 U.S.C. § 1956 cause an effect in the United States.   These changes would fill in numerous gaps and omissions in our decades-old anti-money laundering laws and improve the ability to prosecute money launderers and to forfeit criminal proceeds and facilitating property.”


 As we’ve seen with the recurrent, over broad reading of the commerce clause, causing “an effect in the United States” is pretty easy to show. The proposal would claim globalized US jurisdiction without the citizenry of foreign jurisdictions having any say over whether they want the United States to have such power over them. Which is oddly hypocritical coming from a country that claimed its sovereignty on the premise that government derives its just power from the consent of the governed. It also seeks to expand wiretap authority despite the now decade long profligate abuse of such power under the Patriot Act.

“POCA also seeks to update our civil forfeiture capabilities.   Civil forfeiture is a particularly effective tool in this regard, as it enables prosecutors to forfeit the proceeds of crime even when criminal prosecutions of those involved are not possible.   Thus fugitives, drug kingpins, and corrupt foreign officials not present in the United States cannot elude the reach of our enforcement entirely…. POCA would enhance the government’s civil forfeiture authority in a number of important ways.   It seeks to expand the scope of civil forfeiture authority to include “facilitating property,” or property that enables crime to occur, for all money laundering predicates and broadens the categories of facilitating property that can be civilly forfeited in connection to drug offenses and alien smuggling and harboring.   To better attack the financial infrastructures of these organizations through more effective financial investigations, the proposal provides increased civil forfeiture, administrative, and foreign bank record subpoena authority. It also would enable the use of classified information in civil forfeiture cases, which is critical in going after transnational criminal organizations that threaten our national security.”


Civil asset forfeiture has already become a nightmare in the United States. Broadening its application will deprive “fugitives, drug kingpins, and corrupt foreign officials” of their assets. More importantly, it will take property from innocents, corrupt law enforcement agents, and discard basic due process concerns. Expanding the categories of facilitating property subject to civil asset forfeiture sounds scary. It’s already used to acquire property that isn’t even alleged to be party to criminal misconduct. Stefan D. Cassella notes, “prosecutors like to use the money laundering forfeiture statute because it eliminates the need, in most cases, to distinguish between the portion of the property traceable to the underlying offense and the portion derived from other sources.”
Yet, the Department of Justice wants to go even further. It wants to be able to use classified information to substantiate the taking of property, without convictions, in cases that do not pose a clear, imminent, existential threat. In other words, it wants to use secret evidence that the owner of the property can not fully see and cannot fully refute, as in International Emergency Economic Powers Act terrorism proceedings. It wants expanded access to ex-parte contact. And, it wants that power over citizens and non-citizens in foreign and domestic jurisdictions.

“The Administration proposes criminalizing conduct occurring on vessels or aircraft owned by the United States or a United States citizen, vessels registered under U.S. or state law, and aircraft registered under United States law if such vessels or aircraft are outside the jurisdiction of any particular state. In the absence of such expanded jurisdiction, the United States would, for example, lack federal jurisdiction over a sex-trafficking offense committed on board a United States -registered vessel or aircraft located between two foreign countries.  Our proposal would address an existing reservation on jurisdiction by the United States to the 2000 UN Transnational Organized Crime Convention, and in particular the supplementing Trafficking in Persons Protocol.”


The Department of Justice wants jurisdiction over any vessel or aircraft registered with the United States or owned by a United States citizen. That sounds like a terrible overreach for US citizens. It’ll seem really awful for an Israeli citizen, obeying Israeli law, in Israeli waters, who happens to be on a method of transport registered in the US, if US authorities don’t like his brand of medicine.


One fears that the Fast and Furious Gunwalker scandal will double it’s harm by providing media cover to get this perfidious list enacted,  just as previous national screwups and tragedies provided cover for other bad ideas.


 Lanny Breuer’s full statement

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