Setty and I have been having a pretty good back-and-forth at his place. (Am I going to have to join Twitter? Please, no.)
We came to a consensus about the propiety of personal sanctions against foreign officials, in which we both changed our initial opinions. (Yes, it happens on the Internet!) Here is the state of play:
There is an argument for the use of economic sanctions against foreign officials. The opposition to their use generally stems from two sources. The first is a blanket aversion to the use of American power; we don’t have a lot to say about that. The second, however, is a worry that such sanctions are applied without due process. That is a reasonable worry, but it is misplaced.
It is possible for foreign residents to harm Americans while outside the reach of the police power of the U.S. government. The alternative to applied sanctions is the issuance of arrest warrant. The problem is that when the foreign resident is outside the reach of American law, issuing an arrest warrant is a hollow move. The only options would be to do nothing or dispatch American forces to carry out an arrest inside the territory of a foreign state. The former is practically unacceptable for any representative government; the latter runs massive foreign policy risks. Sanctions on individuals believed to have violated American law or otherwise harmed American interests is an excellent way to square that circle.
The problem of extraterritorial jurisdiction is compounded when the targeted foreign resident is an official of a foreign state acting in their capacity as a member of the government. In that case, the U.S. has no right to simply criminalize their actions without tossing aside the totality of international law. Moreover, the U.S. has no way short of invasion to enforce any such criminalization. It can impose sanctions on the government. But imposing sanctions on the government harms civilians …. which sometimes is what you want to do, but sometimes is gratuitous or counterproductive.
Once again, you come to personalized sanctions as the best option between a complete abdication of the state’s responsibility and an economic sledgehammer.
In short, the analogy with due process doesn’t hold. We’re not on much of a slippery slope, either. First, individual sanctioning is not something new and it has not yet led us to perdition. Second, the wording of the Economic Powers Act, specifically section 1702, makes it clear that the President has less power here than your typical local government under America’s (admittedly appalling) civil forfeiture laws.
But there is another issue, which is that American law is an ass when it comes to human rights. Setty: “The U.S. should support human rights, without having to (pretend or really) pee itself in fear of the human rights violator or his or her country. I think this sort of language unnecessarily alarms and alienates some people who would be natural allies of efforts in favor of human rights. The U.S. continues to act like a scrappy underdog even when much of the world sees it as an over-muscled bully.”
Exactly! The International Emergency Economic Powers Act should be for actual emergencies. There may be cases where a foreign government’s internal political actions really do constitute “an unusual and extraordinary threat.” For example, a repressive government could be in the process of starting a civil war. Or it might be generating large-scale refugee flows. Or it might be threatening American expats. None of which is really yet on the table on Venezuela, thank the Lord.
In other words, the U.S. needs better legislation. The Venezuela Defense of Human Rights and Civil Society Act of 2014 (ohmigod reading the name of that bill hurts HURTS makes me sad a crime against English it is) could have contained its own authorization instead of going through the Economic Powers Act. Better still, Congress could create a new sanctions law, along the lines of the Venezuela Rights Act. Even better than that would be a law authorizing the President to impose sanctions in pursuit of resolutions from the U.N. or OAS.
Still, absent that, we have the laws we have. They are not terrible. The law may be an ass, but the Maduro government may just need a kick from one.