Hi. I'm Revolter. With the U.S. legal system managing to repeatedly piss off leftist Latin American governments, I thought I could contribute to the BoRev by utilizing my lawyerhood for good instead of the usual evil and take a closer look at some of these controversies. To kick things off, I've just done a boatload of research on the legal arguments surrounding the so-called "suitcase scandal," or "malitenazo" or "valijagate." Since December, three Venezuelans and a Uruguayan have been detained in Miami without bail. Their alleged crime involves the supposed cover-up of the delivery of money between the Venezuelan and Argentine governments. There are now allegations that Chavez himself was involved. Interesting maybe, but does it sound like something the U.S. justice system should be involved in? Probably not. Even worse, the U.S. case is sort of laughable. Where to begin?
The four defendants are charged with violating 18 U.S.C. § 951 - acting as "agents" of the Venezuelan government, and failing to send a letter, email, or text message to Alberto Gonzalez telling him about their agency. Well not quite, but almost (full text of law). A popular misconception is that they were charged under 22 U.S.C. § 611 et seq., the Foreign Agents Registration Act (FARA), a similar, better-known statute with a catchier name that largely deals with foreign government lobbyists or public relations firms registering their activities with the Department of Justice (DOJ). Either way, the legal case is slowly proceeding, and the defense has recently submitted a motion to dismiss (full text) the charges to the court. Although it would be a huge political shock for the defendant to win on the motion, the defense has legal precedent on it's side. But it's also just common sense. After the jump, a closer look at the law and the defense motion lends support to Venezuelan and Argentine claims that the prosecution is politically motivated.
After being re-scheduled twice while the government slowly persuaded three of the four defendants into making plea agreements and admissions of guilt (all had originally pleaded not guilty), the trial for the lone detainee not to succumb to the pressure, Franklin Duran, is now set to proceed on September 2, 2008 in the Florida Southern District Court in Miami. On June 20, Duran's attorney, Edward R. Shohat, submitted a motion to dismiss the two charges (there is also a count for conspiracy to violate section 951) against his client on the grounds that the relevant statute is unconstitutional. The defense's main legal theory is that 18 U.S.C. § 951 is void for vagueness, and so it violates the Due Process Clause of the 5th Amendment of the U.S. Constitution. This argument maintains that when a law does not clearly explain what type of behavior is a no-no, it promotes discriminatory enforcement by officials, and all other sorts of violations of the Bill of Rights - you know, that piece of paper that used to be the foundation of this country's democracy.
When a law's plain meaning is as ambiguous as is section 951's, the judge should examine the legislative intent/history of Congress when passing or amending the law in order to determine whether it is constitutional, and whether or not the defendant has gone against its purposes. 18 U.S.C. § 951 was originally passed during WWI with an eye on ze Germans. It was meant to, and has previously only been used to prevent classic espionage - collecting intelligence or classified information and transmitting it back to a foreign country over an extended period of time - or other activities that were reasonably considered a threat to US national security. And as the defense points out in its motion, when Congress passed the law in 1917, it was viewed by legislators as a defense for the country during times of war. The statute was last amended in 1984 with an eye on the Ruskies in the midst of a resurgent case of Cold War hysteria.
So that's the legal "ideology" behind the law, and the legal reality has so far largely backed it's intended purposes. § 951 is an FBI-investigation-initiator when spying is suspected, as well as a prosecutorial safety-net when more serious spying charges are alleged, but uncertain to be proven. It has, up until recently, been used as a secondary charge along with other more serious spying charges, or as part of a plea agreement reached after extended spying. Of the 35 prior § 951 cases found on LexisNexis and referred to in page 15 of the defense motion, 32 reasonably involved such "spying" activities and have been used against "agents" of regimes that the US was then openly hostile to. These include Germany earlier last century (8), the USSR (12), Vietnam during that war (2), an unnamed country (1), and more recently Iraq (5) and Cuba (4). The fact patterns in two cases are unpublished and the one remaining case involved the illegal exportation of weapons from the US to Northern Ireland (US vs. Byrne). In fact, according to the motion to dismiss, the defendants in Byrne were able to beat the § 951 charge using the same void for vagueness arguments as Duran.
The Iraqi cases are all post-Gulf War I and some involve international intrigue related to the current Iraqi adventure, including an American anti-war activist accused of being an agent of Saddam. Other recent section 951 cases found on the internet include the prosecution of two engineers for sending back classified weapons information to China for over twenty years. Another, maybe even comical case involves a Marine sending classified information to the Philippines from, get this, Dick Cheney's office.
And now you can add Venezuela to the list. But notably absent from the government's indictment (full text) of Moisés Maionica, Carlos Kauffman, Antonio José Canchica Gómez (not detained), Rodolfo Wanseele Paciello, and Duran is any mention of espionage or other concrete violations of US national security interests by the defendants. Even the recent Cuban cases of the Cuban 5 and the Alvarezes, relate to the transmittal of intelligence by those living in the U.S. to Havana over a period of several years or decades. The fact pattern in the Venezuelan case is drastically different than prior § 951 prosecutions, with the fabulously wealthy defendants only visiting the U.S. for small periods of time.
So why now is the government attempting to prosecute Duran and by extension Venezuela under an obscure anti-spying law, other than Miami's disdain for anything Castro or Chavez-ey? From a legal point of view, you've got me.
Unlike FARA, section 951 does not detail what "registration" form an "agent" of a foreign government is supposed to send to the DOJ or Attorney General. But why would it? It doesn't make sense that a law meant to catch spies actually expects them to announce their activities to the country they're spying on, or they would be terrible at their jobs. But if you apply section 951 the way the DOJ is asking the District Court to do so, then any activity or favor done by someone in the U.S. at the request of a foreign official, no matter how innocent, exposes that person to the risk of being arrested. Well, at least it's a lot more likely if the U.S. does not like that official's government. And that is precisely why, in a purely legal sense, the void for vagueness doctrine should prevail for Duran, as it did in US vs. Byrne, although that doesn't mean it will.
Prosecutor Thomas Mulvihill and his team at the DOJ must respond to the defense's motion by July 10, and it undoubtedly will be very interesting to see what kind of legal arguments they pull out of their asses come up with. There are several other legal minefields that the prosecution will have to navigate in order to win a conviction, and they will be detailed in future Revolter postings. What is clear now however, is that Venezuela and Argentina have bona fide support, including both common sense and legal precedent, for their positions that this prosecution is politically motivated. The media has willfully ignored all of these arguments, taking the White House line of the "independence of the US judiciary" as some sort of absolute truth that prevents such judicial bias form occurring. But many people all over the world are already unconvinced, and many more will be so if Duran is actually convicted under this strange statute.
