Senator Tom Cotton (R-AR) is in the news this month. For reasons that passeth understanding he's been offered up as a spokesperson for the 47 Republicans who wrote a letter to Iran.1 Today I noticed a number of links to 2013 reports asserting that Sen. Tom Cotton offered an amendment to a bill that would allow imprisonment without due process of the relatives of the targets or Iranian sanctions. The Huffington Post's Zach Carter may be Patient Zero on this idea:
WASHINGTON — Rep. Tom Cotton (R-Ark.) on Wednesday offered legislative language that would "automatically" punish family members of people who violate U.S. sanctions against Iran, levying sentences of up to 20 years in prison.
. . .
Article III of the Constitution explicitly bans Congress from punishing treason based on "corruption of blood" — meaning that relatives of those convicted of treason cannot be punished based only on a familial tie.
The proposed language, as described, struck me as an unusual thing for a Senator to do, even if the Senator graduated from Harvard Law School and therefore is not entirely responsible for his actions. Is this real? Or is this another case of journalistic malpractice on legal matters?2
The answer appears to be that nobody in this story understands what's being talked about.
Background: Prohibitions on Trading With Sanctioned Parties
The President has the power to prohibit trading with certain groups. Let's call them "bad guys." The list of bad guys is politically flexible and subject to constant tinkering, as is typically the case for such lists.
In 2012 Congress passed the Iran Threat Reduction and Syria Human Rights Act of 2012, which told the President to "identify foreign persons that are officials, agents, or affiliates of Iran’s Revolutionary Guard Corps," exclude them from the country, and add them to the list of Bad Guys with whom you can't trade.
In 2013 the House of Representatives considered the Nuclear Iran Prevention Act of 2013, which would have emphasized that Congress really really meant it when they passed the Iran Threat Reduction and Syria Human Rights Act of 2012, in case any Iranian Revolutionary Guard members or likely voters were in doubt. That bill would have tinkered with various parts of the law, including expanding the list of Bad Guys to include Iranian human rights abusers and foreigners who engage in transactions with Iran's central bank.
Tom Cotton Is Serious About Bad Guys And Their Families
The "corruption of the blood" issue arose in connection with an amendment that Tom Cotton — then a Member of Congress — offered to the Nuclear Iran Prevention Act of 2013. The minutes of the Committee on Foreign Affairs markup session on the bill tell the tale. Cotton offered this amendment:
You might look at that and ask "what the hell does that mean?" You could pull the bill it's proposing to amend and still ask that, because the page numbers and line numbers don't track with the available versions of the bill. But in effect, then-Rep. Cotton was proposing that the list of Bad Guys with whom one cannot trade be expanded to include not just Iranian human rights abusers, but their relatives. So, for instance, part of the bill would read this way if the amendment were accepted:
(A) the President should include any Iranian person holding a position in the Government of Iran described in paragraph (1) and any family member of such official (to include a spouse or relative to the third degree of consanguinity) on one or more of the [lists of bad guys]
In other words, the amendment serves to establish that not only can't you trade with (for instance) the Commander of the Quds Force, you also can't evade the statute by giving his grandson a lucrative deal for a TV show call QUDS FORCE.
That seems relatively straightforward. The amendment — no doubt drafted by some legislative assistant — is intended to prevent people from getting around the trading sanctions by doing deals with relatives of Bad Guys.
The "OMG corruption of the blood" narrative resulted, in part, from Cotton not understanding his own amendment, and nobody else understanding it either. Cotton's understanding was limited to his prepared (by someone else) statement:
However, I think it is pointless if we let them simply divert assets and income to relatives, so this amendment would also add to the list of sanctions anyone married to those persons or to the third degree of consanguinity which in plain English are parents, children, aunts, uncles, nephews, nieces, grandparents, great-grandparents, grandkids, great-grandkids.
The first sign of lack of comprehension comes from Rep. Castro:
Mr. CASTRO. Congressman, under your amendment, if they’re trying to funnel resources to family members, how would we investigate and come to that conclusion?
Chairman ROYCE. Mr. Cotton, you’re recognized.
Mr. COTTON. There would be no investigation. If the prime malefactor of the family is identified as on the list for sanctions, then everyone within their family would automatically come within the sanctions regime, as well. It would be very hard to investigate and demonstrate through conclusive proof, and I think that we would leave a gaping loophole if we didn’t adopt this amendment.
Rep. Castro apparently thinks that relatives only get on the Bad Guy list if there's proof that their family's Head Bad Guy is funneling money to them, when in fact it's automatic. Cotton fails to pick up on the confusion.
Then comes Rep. Grayson with the new narrative:
Again, this is a bill that provides for a prison term of 20 years potentially for people who violate this bill. The amendment that’s being offered doesn’t even indicate a requirement of knowing violation.
Again, my conception of the due process provision in the Fifth Amendment to the Constitution does not comport with this amendment. I will vote against it if it comes to a vote. And, also, I hope that we do now have a provision in the bill that indicates that there’s severability at every provision in this bill if this provision is incorporated in the bill because I really question the constitutionality of a provision that punishes nephews on account of the actions of uncles.
Rep. Grayson, wittingly or not, has just suggested that the amendment changes who can be charged and imprisoned under the penalty provision of the prohibition on trading with Bad Guys, or changes the knowledge requirement of that provision. It doesn't. It doesn't change the elements of the crime at all. It only adds to the list of people you can't trade with. It doesn't expose those people — the family members of the Bad Guys — to 20 years in prison. If the government wants to charge you with unlawful trading with the grandkid of a Bad Guy, they would still have to prove the same things:
Accordingly, the elements of the crime of dealing in the property of an [Bad Guy] are: (1) Defendants knowingly dealt in the property or property interest of the [Bad Guy]; (2) the property was within the United States or within the possession of a United States person; and (3) Defendants knew that they were prohibited from dealing in any property or property interests of the [Bad Guy]. See 50 U.S.C. § 1705(c); 31 C.F.R. §§ 595.201(a), 595.204; Sipe, 388 F.3d at 480 n. 21.
In other words, the feds would still have to prove you knew you were making prohibited trades with the grandson of Qud Force.
This would have been a good time for Tom Cotton to clear this misunderstanding up, if he understood himself what he was talking about. Alas.
Mr. COTTON. Iranian citizens do not have constitutional rights under the United States Constitution. I sympathize with their plight if they are harmless, innocent civilians in Iran. I doubt that that is often the case, and the stakes of this bill in our confrontation with Iran could not be any higher.
Wait, what? No, dammit, you're conflating two separate issues. Issue One is whether people have a due process right not to be put on the Bad Guy list, because it has dramatic consequences like being excluded from the United States and prohibiting Americans from trading with you. Issue Two is whether this bill makes it easier to put people in federal prison. You're helping to mix them up.
Then Cotton makes it worse:
Mr. COTTON. I’m happy to follow the procedure you just proposed that we work on language of the amendment in the coming minutes and hours, and then have a final vote on a revised version later, but there is substantive matters here when we’re working on the language, and I am still somewhat confused about the gentleman from Florida’s Constitutional concerns given that we’re not talking about American citizens.
Second, I am worried that if we include any kind of mens rea provision like knowing then how is the United States Government
going to prove what was and was not a knowing transfer inside the Iranian regime that has an ironclad grip on information. The
money may not ever have to be transferred, it may be provided directly from vendors or other people who are offering bribes to senior officials, to children, or spouses, or parents and so forth. But I am certainly willing to work on the language.
STOP TALKING ABOUT LAW, ASSHOLE. This bill doesn't do anything to the mens rea requirement — that is, the level of knowledge of wrongdoing required — for a criminal violation. The elements, quoted above, remain the same. If he's saying that there shouldn't be a knowledge requirement to be put on the Bad Guy list, then that's misleading because there has never been one. Entities put on the Bad Guy list can, and have, sued arguing that they were put on without sufficient cause.
Here comes Grayson again to make it worse:
When the government enforces this provision it either institutesa civil fine, or it institutes a criminal penalty. Every criminal defendant in our system is entitled to the Constitutional rights including, among others, the right under the Fifth Amendment to due process of law.
NOTHING IN THIS BILL SAYS OTHERWISE, YOU IDIOT. Nothing in this bill alters the process if the government wants to charge you with a crime for trading with the grandson of the Quds Force leader. It does not create a Gitmo for violators. It just changes who you can't trade with.
Mr. GRAYSON. If the gentleman is seriously suggesting that a grandchild of a high Iranian public official is subject to sanctions, including 20 years of imprisonment under our laws and our Constitutions, all I can say is that the gentleman is completely mistaken, completely and utterly mistaken. And, frankly, the fact that you would even entertain the possibility that we would put such people in jail in the United States, that we would imprison them in the United States shows that the gentleman may not well understand the Fifth Amendment to the Constitution and underscores my concern.
Is this what a stroke feels like?
1. Tom Cotton's 2013 amendment did not suggest that the relatives of Bad Guys could be put in jail without due process.
2. It is not entirely clear if Tom Cotton understood that.
3. It is not entirely clear if Rep. Grayson understood that.
4. Tom Cotton's amendment would have added the relatives of Bad Guys to the list of people you can't trade with. You can criticize that on its own terms — for instance, the impact of destroying the business of some poor bastard just because his grandpa is a huge murderous rights-violating bag of dicks. But whimsical definition of folks as enemies of America is a long-standig problem, made far worse after 9/11, and this debate doesn't clarify it at all.
5. This honestly is not rocket science. I figured it out and I move my lips when I read Garfield. Journalists report it inaccurately because (1) doing so promotes their narrative, (2) nobody expects more of them, and (3) they're lazy. YOUR JOURNALISM IS BAD AND YOU SHOULD FEEL BAD.
This is how our laws are made, and nobody is explaining it to us right.
- The subject of internet experts on the Logan Act is beyond the scope of this post. However: seriously? ▲
- Malpractice is a deviation from the standard of care. Since legal reporting is so relentlessly awful, the standard of care is extremely low. Maybe "malpractice" is the wrong term. ▲
- Unless you know the right Presidential relative, of course. ▲
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