Wednesday, October 11, 2006
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Ninth Circuit Upholds Gulf War-Era Ban on Travel to Iraq
By a MetNews Staff Writer
Sanctions prohibiting U.S. citizens from traveling to Iraq after it invaded Kuwait in 1990 were properly promulgated and enforceable, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court upheld a ruling by U.S. District Judge James L. Robart of the Western District of Washington, who granted the Treasury Department’s Office of Foreign Assets Control’s motion to dismiss a suit brought by Bertram Sacks challenging penalties levied against him by OFAC for his violations of the sanctions.
Sacks and other members of a group called Voices in the Wilderness opposed sanctions against Iraq by the United States and the United Nations on humanitarian grounds. The group claimed that the 12 years of sanctions were a dire time for Iraqi civilians, marked by malnutrition, high rates of infant and child mortality, and shortages of medicine.
In an effort to draw attention to the effect of the sanctions, Sacks and other group members traveled to Iraq repeatedly, bringing medicine and medical supplies in knowing violation of the sanctions.
After OFAC—the agency within the Department of Treasury responsible for coordinating international sanctions—assessed a penalty against Sacks, he filed suit in district court against OFAC and its director, Richard Newcomb, seeking relief from enforcement of the penalty.
Executive Order
After Robart granted the defendants’ motion to dismiss, Sacks appealed, arguing that the regulations were invalidly promulgated. He claimed that the travel ban—issued pursuant to an executive order by President George H.W. Bush—exceeded the president’s statutory authority because it indirectly regulated the donation of humanitarian medical supplies, something Sacks contended the International Emergency Economic Powers Act forbade the president from doing.
The IEEPA grants the president authority to unilaterally impose regulations on economic transactions between U.S. citizens and foreign countries or their citizens. To trigger this authority, the president must declare a national emergency necessitated by an unusual and extraordinary threat.
The act, however, prohibits the president from embargoing donations of food, clothing and medicine absent a determination that such donations would seriously impair his ability to address the emergency or would endanger the safety of American combat forces engaged in hostilities.
United Nations Directives
Judge Kim McLane Wardlaw, writing for the Ninth Circuit, noted that the IEEPA was not the “lone source of the President’s power to enact economic sanctions.” Bush’s authority to issue the sanctions, she explained, arose not only from the IEEPA, but also from the United Nations Participation Act, which allows the president to issue sanctions against another country in order to comply with United Nations directives.
Wardlaw noted:
“The economic restrictions authorized by the IEEPA (and the related limits on that authority) are confined to a particular circumstance: the declared national emergency. . . . By contrast, the UNPA allows the President to impose sanctions that are more wide-ranging, without any built-in congressional review and ‘[n]otwithstanding the provisions of any other law.’”
The justice said:
“Sacks’s proposed interpretation would treat Congress’s passage of the IEEPA in 1977 as a partial sub silentio repeal of the UNPA.”
Wardlaw continued:
“We refuse to read Congress’s passage of the IEEPA as repealing key provisions of the UNPA. Proper functioning of the IEEPA does not depend on a repealing of the UNPA, since the two statutes authorize presidential actions in unique, albeit sometimes overlapping, situations. Reading the statutes to avoid a conflict maintains the complete viability of both statutes and is most faithful to Congress’s plain language.”
After the American invasion of Iraq in 2003, the United Nations lifted all non-weapons trade restrictions against Iraq, and OFAC issued a general license permitting all Iraq-related transactions that previously had been prohibited, including unlicensed humanitarian donations.
The case is Sacks v. Office of Foreign Asset Control, 04-36136.
Copyright 2006, Metropolitan News Company