Unfriended: Should Facebook be Required to Enforce US Sanctions Against its Users?

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Late last year, Facebook abruptly shut down the accounts of Ramzan Kadyrov, the despotic leader of the Chechen Republic. The social media giant claimed that it had a “legal obligation” to disable Kadyrov’s Facebook and Instagram accounts because of new sanctions imposed by the United States government under the Magnitsky Act. Among other things, Kadyrov has been accused of ordering the assassination of a political opponent, personally torturing another, and leading a violent purge of gay men. He’s also an active social media user: four million people followed his Facebook and Instagram profiles, and 400,000 continue to follow him on Twitter. Kadyrov had become famous for posting videos of himself wrestling a crocodile, praising Russian President Vladmir Putin, and—perhaps ironically—mocking what he saw as the ineffectiveness of American sanctions.

As many journalists noticed, Facebook hasn’t disabled the accounts of other sanctioned individuals, including Venezuelan President Nicolas Maduro, Russian Deputy Prime Minister Dmitry Rogozin, and Israeli billionaire Dan Gertler. Facebook explained this seeming inconsistency with an unhelpful truism that it “operate[s] under the constraints of US laws, which vary by circumstance.” Its statements have led observers to speculate that Facebook is using the sanctions as a pretextual reason to cut off a user it already disliked, or that it’s “picking and choosing compliance” in an attempt to please the government. Although those explanations seem plausible at first glance, a careful look at the relevant laws suggests an even simpler (albeit more mundane) one: Facebook may actually be correct that it had a legal obligation to suspend Kadyrov’s accounts but not those of others targeted by American sanctions.

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Argentinians Cry Out “Cambiemos,” But Can They?

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In early January 2018, five prominent Argentinian officials were arrested on corruption charges, including Amado Boudou, Argentina’s former vice president. These arrests come on the heels of President Mauricio Macri’s landslide victory on a “Cambiemos,” or “Let’s Change,” platform—a promise to root out public corruption. Late last year, Argentina’s Congress passed a new anticorruption law, which punishes companies for corruption by blacklisting them from public contracts and levying fines of up to five times the amount companies have obtained by illegal means. The new law also requires corporate compliance programs for the first time. But, while these reforms are welcome, the Argentinian judiciary remains an obstacle to genuine progress in eradicating the rot of corruption.

While the Macri government should be praised for making steps in the right direction, its efforts will fall short unless something is done about Argentina’s judicial system. More specifically, Argentina’s judicial institutions suffer from three problems that impede effective anticorruption efforts: Continue reading →

Guest Post: Pakistan’s Culture of Corruption

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Zagham H. Chaudry, a student at Temple Law School, contributes today’s guest post:

Pakistan is the world’s fifth-most populous country, a regional power in a strategic location with a powerful military, and nuclear weapons. Yet Pakistan is far from reaching its full potential, and corruption is a main reason for that. Corruption in Pakistan is well-known and well-documented, and extends from the top (the Prime Minister) all the way down to the bottom (the local bazaar). Talk to random Pakistanis on the street and chances are they’ll tell you how corruption has affected them—how they couldn’t get jobs in the police or be admitted into good universities because they refused to pay bribes. Corruption has become part of the culture in Pakistan. It has become engrained in the beliefs, attitudes, and customs of the Pakistani people.

The corrupt (often wealthy and often politicians) in Pakistan have used their political influence to manipulate the laws, policies, and rules of procedure of the country to sustain their power, status, and wealth, causing serious and extensive harm to Pakistani society which has mostly gone unpunished. This sort of corruption eats away at state institutions like termites eat wood. Additionally, according to Transparency International, there is a “[strong] connection between corruption and inequality, which feed off each other to create a vicious circle between corruption, unequal distribution of power in society, and unequal distribution of wealth.” One has to look no further than the lifestyle of the corrupt ruling class in Pakistan as compared to the rest of the country to see the connection between corruption and inequality. The corrupt live in expensive bungalows in gated communities, drive fancy cars, have dozens of servants and security, and live luxurious lives—while four out of ten Pakistanis continue to live in poverty.

In a society where so few have so much and so many have so little, and where politically-motivated hiring, patronage, and nepotism reign supreme, you end up with a situation where becoming part of the corrupt system seems to be the only way out of poverty for millions of disadvantaged and deprived people. And in this way, subcultures of corruption begin to take root in the lower levels of society which all conform to the overall culture of corruption on the highest levels (e.g. federal and provincial governments). Consider the following stylized example, which despite its simplicity accurately captures how business often gets done in Pakistan: Continue reading →

Returning Assets to Governments Run by Kleptocrats

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The return to the victim country of assets stolen by a corrupt official has been much commented upon on this blog (here, here, here, here, and here).  The discussion centers around whether governments holding the stolen assets must return them when the government requesting the return continues to be dominated by thieves.

Not surprisingly, the asset recovery provisions of the UN Convention Against Corruption provide little guidance.  It was written at a particular moment in history — just after Ferdinand Marcos of the Philippines, Sani Abacha of Nigeria, and Suharto of Indonesia had fallen.  These kleptocrats, whose massive theft of their nation’s resources inspired the UNCAC asset recovery chapter, had been replaced by democratically inclined leaders committed to the rule of law and the welfare of their citizens.  The question then occupying UNCAC’s drafters was how to return the money to such rulers as quickly and inexpensively as possible.

But in hindsight, the replacement of these kleptocrats by enlightened rulers seems more an accident of history than a harbinger of future events.  It is all too rare for a kleptocrat to be replaced by a democratically chosen successor of the likes of the Philippines’ Cory Aquino or South Africa’s Nelson Mandela. Far more common is the replacement of one kleptocrat by another — or by a gang of kleptocrats.  When this is the case, must nations holding the fallen kleptocrat’s assets return them to another thieving government?  Knowing chances are slim the assets will ever benefit those the thieves rule?

Although UNCAC offers no answer to these questions, in a paper delivered at a conference organized by Geneva Center for Civil and Political Rights I argue that UNCAC is not the only treaty governing states’ obligation to return stolen assets.  There are as well provisions in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights that states must observe.  And these point decidedly against returning stolen assets to a kleptocracy. Thye dictate instead that the assets be returned directly to citizens.

My paper is here.  Comments welcome.  Other papers presented at the conference’s rich and stimulating discussion on human rights and corruption are here.

Anticorruption Bibliography–February 2018 Update

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An updated version of my anticorruption bibliography is available from my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

Thoughts from the Menendez Trial: Preventing Corruption from the Start

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Last fall’s corruption trial of U.S. Senator Robert Menendez (D-NJ) ended rather anticlimactically, with the presiding judge declaring a mistrial after the jury announced that it couldn’t reach a decision, and the Department of Justice eventually deciding not to retry him. Senator Menendez had been accused of taking donations and gifts from Florida ophthalmologist Salomon Melgen in exchange for advocating for visas for Melgen’s foreign girlfriends, the award of a government contract, and the resolution of a Medicare billing dispute. Plenty of digital ink has already been spilled on the broader implications of the Menendez case for other bribery prosecutions (on this blog here, and elsewhere here and here).

But putting aside the specifics of the case, what caught my eye about the allegations against Senator Menendez was a background feature of U.S. law that seems to have gone largely undiscussed: It’s perfectly legal (and normal) for non-constituents to contribute to political candidates. In other words, even if you are barred from voting for a candidate because you live outside that candidate’s district, you can still express your support by pulling out your checkbook. That lack of constraint on donations seems to invite the very kind of corruption the government alleged in the Menendez case, because it allows a wealthy donor to find and purchase his or her own “personal United States senator.”

I’m certainly not the first person to voice the concern that allowing non-residents to contribute to political candidates may facilitate corruption. Two states—Alaska and Hawaii—have recognized the risk posed by allowing non-residents to contribute to political candidates. They’ve responded by limiting those donations. But in the Lower 48 and in all federal elections, there are no differential limits on contributions from people residing outside the state, so long as they are American citizens or permanent residents. (Alaska’s law is currently facing a First Amendment challenge from an aspiring donor whose gift was returned because the candidate he supported had already reached the out-of-state contribution limits. A federal judge upheld the law as a “closely drawn” effort by the state to prevent “quid pro quo corruption or its appearance,” but the would-be donor has appealed.) Putting aside the constitutional defenses of the sorts of laws that Alaska and Hawaii have adopted (which you can find in the amicus briefs filed in the Alaska case here, here, and here), there are strong policy reasons for limiting contributions by people living outside a state or district—not least because such limits, as the judge in the Alaska case noted, can be a useful tool for preventing corruption or its appearance:

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Announcement: Academia against Corruption in the Americas Conference (Call for Proposals)

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GAB is happy to welcome back Bonnie J. Palifka, Associate Professor of Economics at Mexico’s Tecnológico de Monterrey (ITESM), who shares the following announcement:

The first Academia against Corruption in the Americas (ACA) conference, which I am organizing, will be held June 22-23, 2018 in Monterrey, Mexico. The purpose of this conference is three-fold:

  • First, to share research (working papers or already published) from all fields on corruption in the Americas, or general research on corruption by scholars based in the Americas;
  • Second, to share anticorruption teaching experiences (courses, activities, approaches) and so inspire others;
  • Third, to create an anticorruption academic network specific to the Americas.

I would like to encourage all academic researchers interested in participating in this conference to submit proposals to me at bonnie@itesm.mx.

  • Proposals for the research sessions should be full papers on any corruption or anticorruption topic, with preference for those studying corruption or anticorruption in any part of the Americas.
  • Proposals for the curriculum sessions should be the syllabus, teaching notes, or Power Point presentations relating to your experience teaching (anti)corruption.

Proposals are due by March 1, and decisions will be made by March 15. Proposals will be accepted and reviewed in English, Spanish, Portuguese, or French, but presentations at the conference must be in English or Spanish.  Please share the calls for proposals with other corruption scholars, and I hope to see some of you in Monterrey this June.

Guest Post: How District Attorneys Can Avoid Conflicts of Interest in Campaign Fundraising

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Jennifer Rodgers, Executive Director of the Columbia University Law School’s Center for the Advancement of Public Integrity (CAPI), and Izaak Bruce, CAPI Research Fellow, contribute the following guest post:

Last fall, New York County District Attorney Cyrus Vance received quite a bit of negative press for his handling of potential cases involving some high-profile potential defendants. In one case, Vance declined to bring sexual assault charges in 2015 against Harvey Weinstein despite a detailed victim account. In another case, back in 2012, Vance ultimately decided not to criminally charge members of the Trump family for making false and misleading statements to promote one of their real estate ventures, again despite what on the surface appeared to be credible evidence of wrongdoing. Of course, prosecutors have to make difficult judgment calls all the time about what cases to bring, often based on information that outsiders do not have access to and/or are not in a good position to judge. But what made these cases so troublesome to many was the suggestion or insinuation of improper influence. The New York County DA is an elected position, and in both the Weinstein case and the Trump case, the attorneys who successfully convinced Vance not to bring charges also made hefty donations to Vance’s reelection campaign.

Vance and his supporters insist that there was no impropriety, let alone a quid pro quo, and rightly point out that DAs raise substantial campaign contributions from many attorneys. But the reports were nonetheless deeply troubling, not least because these incidents evince a more general problem. In a couple of cases, DAs have been convicted for accepting campaign contributions as bribes in exchange for favorable defendant outcomes; much more common, however, is the appearance of impropriety caused by campaign donations from individuals involved in cases before the district attorney’s office; these are problematic even if no underlying crime is proved. And of course there is always the possibility of unconscious bias when a DA makes decisions about criminal cases that involve a campaign donor, even if the DA believes his or her decision making is unaffected. Yet despite these obvious problems, there are very few legal limits on donations by individuals to district attorneys, either in New York or elsewhere. In New York, for example, campaign contributors can give a DA candidate up to the maximum amount (almost $50,000 in New York County) with no regard for whether those contributions might lead to a conflict of interest or an unconscious bias on the part of the district attorney. And there is virtually no guidance for DAs on how to handle these potential or apparent conflict-of interest issues.

To help address this problem, my organization, the Center for the Advancement of Public Integrity (CAPI) at Columbia Law School, recently released a report on DA fundraising practices. DA Vance, to his credit, specifically requested this review, which included an examination of his own campaign fundraising practices. In conducting its review, CAPI considered the donation acceptance policies of DA Vance’s campaign, and analyzed contributions to his campaigns over his three election cycles, paying particular attention to contributions from attorneys. CAPI conducted research into applicable laws, regulations, and guidance for DAs, and lawyers generally, in this area, and interviewed numerous stakeholders on the topic, including DAs, election regulators, good governance groups, and legal ethics experts, to learn from their experiences and solicit their views. After conducting this review, the report offered seven recommendations for DAs to follow to avoid actual and potential conflicts of interest and biases. While these recommendations are geared to DAs in New York, they are instructive for elected prosecutors all over the United States: Continue reading →

The Flawed and Flimsy Basis for the American Bar Association’s Opposition to Anonymous Company Reform

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In last week’s post, I raised the question of why the American Bar Association (ABA), which represents the U.S. legal profession, so strenuously opposes even relatively modest measures to crack down on the use of anonymous companies for money laundering and other illicit purposes. In particular, the ABA has staked out a strong, uncompromising opposition to the bills on this topic currently under consideration in the U.S. House (the Counter Terrorism and Illicit Finance Act) and in the Senate (the TITLE Act). As I noted in my last post, the substance of the ABA’s objections (summarized in its letters here and here) appear, at least on their surface, unpersuasive as a matter of logic, unsupported by evidence, or both. This, coupled with the fact that many ABA members strongly disagree with the ABA’s official position on this issue, made me wonder how the ABA’s President and Government Affairs Office had come to take the position that they had.

After doing a bit more digging, and talking to several knowledgeable people, I have a tentative answer: The ABA’s opposition to the currently-pending anonymous company bills is based on an aggressive over-reading of a 15-year-old policy—a policy that many ABA members and ABA committees oppose but have not yet been able to change, due to the ABA’s cumbersome procedures and the resistance of a few influential factions within the organization.

Why does this matter? It matters because the ABA’s letters to Congress deliberately give the impression that the ABA speaks for its 400,000 members when it objects to these bills as against the interests of the legal profession and contrary to important values. But that impression is misleading. There may be people out there—including, perhaps, members of Congress and their aides—who are instinctively sympathetic to the anonymous company reforms in the pending bills, but who might waver, for substantive or political reasons, if they think that the American legal profession has made a considered, collective judgment that these sorts of reforms are undesirable. The ABA’s lobbying documents deliberately try to create that impression. But it’s not really true. The key document setting the policy—the one on which the ABA’s House of Delegates actually voted—was promulgated in 2003, hasn’t been reconsidered or updated by the House of Delegates since then, and doesn’t really apply to the currently-pending bills if one reads the document or the bills carefully.

I realize that’s a strong claim – one could read it as disputing the ABA President’s assertion, in her letters to Congress, that she speaks “on behalf of” the ABA and its membership in opposing these bills. And I could well be wrong, and remain open to correction and criticism. But here’s why I don’t think the ABA’s current lobbying position should be read as reflecting the collective judgment of the American legal profession on the TITLE Act or its House counterpart: Continue reading →

Depoliticizing the Removal of Heads of Anticorruption Agencies

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In December 2017, a civil society organization that aligns itself with Philippine President Rodrigo Duterte made good on its threat to submit an impeachment complaint against Conchita Carpio Morales, head of the Philippines’ independent anticorruption agency (ACA), known as the Office of the Ombudsman. This came after President Duterte himself called for the impeachment of Ombudsman Morales, publicly accusing her of engaging in “selective justice” and of being part of a “conspiracy” to oust him. Notably, President Duterte leveled these accusations at a time when the Office of the Ombudsman had opened an investigation into the Duterte family’s alleged hidden wealth, and into a multi-billion peso illegal drug trafficking case that implicates President Duterte’s son. This is hardly a unique case. In Nigeria, Nepal and Ukraine, among other places, conflicts between politicians and ACA heads have resulted in the latter’s actual or threatened removal.

Unfortunately, most countries place the decision whether to remove an ACA head in the hands of their politicians (see here and here). The Chief Executive often plays a key role in removals—sometimes on his or her sole authority (as in Afghanistan, Brazil, Botswana, South Korea, Mexico, Singapore, and Tanzania), or in conjunction with the legislature (as in Uganda and Lithuania) or a judicial body (as in Ghana and Kenya). In most other cases, the power of removal is exercised by parliament or any of its members or ministers, often through an “impeachment” process of some kind. Only Barbados, Bangladesh, and Yemen have removal procedures for ACA heads that are strictly and purely judicial in nature.

While there are, at present, no universally-accepted standards against which ACAs are measured, the non-binding 2012 Jakarta Statement on Principles for Anti-Corruption Agencies lays out principles for states to follow in establishing or maintaining effective ACAs. The Jakarta Statement’s position on appropriate procedures for removing an ACA head may be influential in shaping how at least some countries address this issue. And because the Jakarta Statement is currently being revisited (see here and here), now is an opportune time to consider revising its provision regarding the removal of ACA heads.

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