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"If Property Rights Were Treated Like Human Rights, They Could Never Get Away with This": Blacklisting and Due Process in U.S

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Hastings Law Journal Volume 51 | Issue 1 Article 3 1-1999 "If Property Rights Were Treated Like Human Rights, They Could Never Get away with This": Blacklisting and Due Process in U.S. Economic Sanctions Programs Peter L. Fitzgerald Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Peter L. Fitzgerald, "If Property Rights Were Treated Like Human Rights, They Could Never Get away with This": Blacklisting and Due Process in U.S. Economic Sanctions Programs, 51 Hastings L.J. 73 (1999). Available at: https://repository.uchastings.edu/hastings_law_journal/vol51/iss1/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. "If Property Rights Were Treated Like Human Rights, They Could Never Get Away with This": Blacklisting and Due Process in U.S. Economic Sanctions Programs by PETER L. FrrZGERALD* Table of Contents Introduction ......................................................................................... 74 I. Blacklists In U.S. Economic Sanctions .................................. 77 A. The Sanctions on The Former Yugoslavia ...................... 77 B. The Blacklist ....................................................................... 83 C. Blacklisting in other U.S. Economic Sanctions Program s ............................................................................ 88 (1) A Growing Number of Programs .............................. 90 (2) A Plethora of Blacklists .............................................. 98 (3) A History of Administrative Problems ........................ 110 (a) Problems Detailing New Controls ........................... 111 (b) Problems Removing Outdated Controls ................ 116 (c) Problems Managing the Blacklists .......................... 120 * Associate Professor of Law, Stetson University College of Law, St. Petersburg, Florida; B.A. William and Mary 1973; J.D. University of California - Hastings College of Law 1976; LL.M. (European Legal Studies) University of Exeter, United Kingdom 1981. Professor Fitzgerald teaches Computer Law, International Law, International Business Transactions, and International Trade Regulation. Prior to joining the Stetson faculty, Professor Fitzgerald was a member of the IBM Legal Department, and law clerk to the Hon. Patrick E. Higginbotham, U.S. District Court, Northern District of Texas. The author would like to express his appreciation to John L. Ellicott of Covington & Burling; Benjamin H. Flowe, Jr., of Berliner, Corcoran & Rowe; Peter Lichtenbaum of Steptoe & Johnson; Edward L. Rubinoff of Akin, Gump, Strauss, Hauer & Feld; and Gabor Rona of the Center for Constitutional Rights, for their comments and suggestions on earlier drafts of this article. HASTINGS LAW JOURNAL [Vol. 51 II. The Legal Morass ......................................................................... 135 A. Obstacles to Individual Challenges to OFAC Controls ...136 (1) Practical Obstacles to Individual Challenges ............... 136 (2) Legal Obstacles to Individual Challenges .................... 139 B. Legislative M easures ............................................................ 160 Recommendations and Conclusion ...................................................... 166 Introduction Spring is in the air in the rolling hills of Bucks County, Pennsylvania, as the cars pull into the parking lot of a suburban office park just a few miles from the Washington Crossing State Historic Site. Ten men, with the nondescript business suits, radios, and haircuts which make them easily identifiable as government agents, pale beside the bright rhododendron blooms lining the walkway as they parade to the door of the offices of a small importer/exporter of machine tools a little after lunch. The IPT Company, Inc., a New York corporation, had been in business for over twenty-five years when the U.S Treasury Agents arrived without warning to close the business down. The thirteen employees at the Warminster office and warehouse were told to collect their personal belongings, as the premises were to be vacated immediately, the locks changed, and the business closed. One of the agents affixed a new sign to the door, which read: U.S. Persons are prohibited from engaging in transactions with the entity occupying this space. All assets owned or controlled by it are blocked .... Criminal penalties for violation of this notice may include up to 10 years imprisonment, $500,000 in corporate and $250,000 in individual fines.' Neither the company nor its employees or principals were accused of any wrongdoing. Rather, IFT was "blocked" by the Treasury Department's Office of Foreign Assets Controls (OFAC) because of U.S. foreign policy concerns regarding the identity of IPT's overseas stockholders. By virtue of its foreign ownership, this New York corporation had become caught up in one of the U.S. government's economic sanctions programs - in this case, the then newly-announced sanctions on the Federal Republic of Yugoslavia.2 The notice served on IPT stated: 1. Barbara Demick, Bosnia Fallout Scars a Company in Bucks: Clinton's Anti- Yugoslav Sanctions Hit Home, PHILADELPHIA INQUIRER, May 24 1993, at Al, available in 1993 WL, PHILINQ database. 2. See id; see also infra notes 91, 120-129, 258-266 and accompanying text. More than 400 individuals, firms, and vessels have been blacklisted under the Yugoslav sanctions. November 1999] BLACKLISTING AND DUE PROCESS All entities located in or organized under the laws of the Federal Republic of Yugoslavia (Serbia and Montenegro), and any entities owned or controlled by the foregoing, are presumed to be controlled by the Government of the Federal Republic of Serbia.... For this reason the U.S. Department of Treasury considers IPT Company, Inc. to be an entity blocked by [the Executive Orders imposing economic sanctions on the Federal Republic of Yugoslavia]. U.S. Persons (including IPT employees) are, therefore, prohibited from engaging in transactions with IPT, unless licensed by the Office of Foreign Assets Control, and all assets within U.S. jurisdiction which are owned or controlled by IPT are required to be treated as blocked. You are hereby ordered to close the IPT premises immediately and to post the enclosed notice on the outside of the door. No property is to be removed without the express permission of the Office of Foreign Assets Control. All accounts of IPT and accounts in which IPT has an branches of U.S. banks interest in the3 United States or in foreign are blocked. Thus, IPT was effectively considered to be a Yugoslavian agent by the Treasury Department's Office of Foreign Assets Controls (OFAC), and dealings with this U.S. machine tool exporter became subject to the same prohibitions and regulations applied to dealing with Slobodan Milosovic or his Government. 4 Why? Because the 3. IPT Co. v. United States Dep't of Treas., No. 92 Civ. 5542 (JFK), 1992 U.S. Dist. LEXIS 12796, at *1-*2 (S.D.N.Y. Aug. 24,1992). The text truncates the events which led to the closing of IPT. The economic sanctions imposed following the breakup of Yugoslavia were actually implemented in several steps. The notice quoted above was served on IPT in July of 1992 as a result of the initial announcement of sanctions on the Federal Republic of Yugoslavia (Serbia and Montenegro). See Exec. Order No. 12,808, 57 Fed. Reg. 23,299 (1992); Exec. Order No. 12,810,57 Fed. Reg. 24,347 (1992). Following the initial shutdown of the company, OFAC issued licenses which permitted IPT to resume operating as long as they did not do business with the affected areas of Yugoslavia. IPT complied with OFAC's conditions. However, these licenses were revoked in 1993 when the initial sanctions were tightened as the situation in the former Yugoslavia continued to deteriorate. The unannounced revocation of the licenses and shutdown of the Warminster IPT offices described in the text accompanying note 1, supra, occurred in 1993 following the issuance of Executive Order 12,846. See Exec. Order No. 12,846, 58 Fed. Reg. 25,771 (1993); IPT Co. v. United States Dep't of Treas., No. 92 Civ. 5542 (JFK), 1993 U.S. Dist. LEXIS 6304, at *2-*3 (S.D.N.Y. May 13, 1993); No. 92 Civ. 5542 (JFK), 1992 U.S. Dist. LEXIS 18388, at *1-*2 (S.D.N.Y. Dec. 3, 1992). The sanctions were then further tightened in 1994. See Exec. Order No. 12,934,59 Fed. Reg. 54,117 (1994). The sanctions and blocking measures directed at Serbia and Montenegro were prospectively lifted in January of 1996 as a result of the Dayton Peace Accords, see 61 Fed. Reg. 1,284 (1996); 31 C.F.R. § 585.525 (1999), but were not similarly lifted for the Serbian controlled areas of Bosnia until the following May. See 61 Fed. Reg. 24,697 (1996); 31 C.F.R. § 585.527 (1999). Sanctions were then reimposed on the Federal Republic of Yugoslavia in June of 1998 as a result of Serbian actions in Kosovo. See 63 Fed. Reg. 54,575 (1998). 4. The Federal Republic of Yugoslavia Sanctions Regulations (FRYSR) impose a HASTINGS LAW JOURNAL [Vol. 51 shares of this New York corporation were owned by two commercial companies established in the Federal Republic of Yugoslavia As a consequence, IPT's name was added to one of OFAC's "blacklists" and no person 6 or company subject to U.S. jurisdiction could engage in any sort of transaction with
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