Opinions of Peter Belmont
Speaking Truth to Power
| Partial analysis of deeply flawed draft Iran sanctions legislation |
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by Peter A. Belmont / 2011-11-06
Section 601(c) RESTRICTION ON CONTACT.—No person employed with the United States Government may contact in an official or unofficial capacity any person that— (1) is an agent, instrumentality, or official of, is affiliated with, or is serving as a representative of the Government of Iran; and (2) presents a threat to the United States or is affiliated with terrorist organizations. Section 601(d) WAIVER.—The President may waive the requirements of subsection (c) if the President determines and so reports to the appropriate congressional committees 15 days prior to the exercise of waiver authority that failure to exercise such waiver authority would pose an unusual and extraordinary threat to the vital national security interests of the United States. ANALYSIS: These sections should be found unconstitutionally vague and are otherwise objectionable. These sections: [1] do not require that the prohibited USA contactor “know” that the specified Iranian person is a person with whom contact is prohibited. [2] prohibit but do not define “contact”. [3] do not define what “presents a threat to the United States” means or explain who determines the existence of such a “threat”, when such determination is made, and how or whether such determination is promulgated. [4] does not define what “affiliated” means in the phrase “is affiliated with terrorist organizations” or explain who determines the existence of such “affiliation”, when such determination is made, and how or whether such determination is promulgated. [5] prohibit certain contacts by persons “employed with the United States Government” but do not make clear what the substitution of the normal phrase “employed by” by the phrase “employed with” means, permitting a question as to whether the prohibition falls upon persons other than USG employees—such as government contractors and their employees and other agents. [6] leave unclear whether indirect “contacts”, as through a non-prohibited intermediary, fall within the prohibition, and, if so, whether the prohibition falls upon such intermediary. [7] make it appear that normal diplomatic contacts are prohibited with respect to the specified Iranian persons and provides no waiver of the prohibition whatever other than the blanket waiver of § 601(d). If the president or any court is to take punitive action for breach of this prohibition, due process demands that all persons subject to this prohibition know what it is that is prohibited. If I worked for (or, in ANY sense whatever, worked “with”) the USG, I’d be dreadfully careful if these provisions become law. Section 111.D DETERMINATIONS NOT REVIEWABLE. This provision denies the possibility of due process rights under this sanctions regime and is presumably unconstitutional on its face, giving someone (the president or a lower court?) power to impose sanctions of far-reaching economic consequence on persons (usually corporations) which are found (by whom?) to have breached certain provisions, but denying the person so sanctioned the possibility of appealing such sanctions in court. |
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