The FCPA Is Not an All-Purpose Anti-Foreign-Illegality Law

A few months back, Adam Davidson did a terrific New Yorker piece on the Trump Organization’s shady business dealings in Azerbaijan, focusing on evidence of corruption, money laundering, and sanctions evasion in connection with the Trump Organization’s licensing deal for a Trump Tower in Baku, the country’s capital. While I greatly admired the piece, I nonetheless criticized one aspect of it: the argument that the Trump Organization’s licensing deal ran afoul of the Foreign Corrupt Practices Act (FCPA), an allegation which, it seemed to me, wasn’t adequately supported by the otherwise impressive body of evidence assembled in the piece. While I recognize that a piece written for a general audience can’t get too lost in the technical legal weeds, I do think that it’s important to convey an accurate sense of what the FCPA does, and what it doesn’t do.

I was reminded of this a couple weeks back when I read an otherwise incisive essay by the political commentator Heather Digby Parton (whose work I very much admire) on Ivanka Trump’s shady business dealings and possible legal violations. Though Ms. Parton’s piece focused mainly on the Trump Ocean Club in Panama (dubbed “Narco-a-Lago” in an excellent Global Witness report), she also brought up Mr. Davidson’s reporting on the Azerbaijan project, and repeated the suggestion that the Trump Organization’s involvement in this project likely violated the FCPA. In making this case, Ms. Parton states:

The Foreign Corrupt Practices Act requires that American companies not make profits from illegal activities overseas, and simply saying you didn’t know where the money was coming from isn’t good enough…. Courts have held that a company needn’t be aware of specific criminal behavior but only that corruption was pervasive.

I hate to be nitpicky, especially when it involves criticizing a piece I generally agree with by an author I admire, but this is simply not a correct statement of the law. Continue reading

The U.S. Combating Global Corruption Act Is a Worthwhile Proposal that Deserves More Attention

I know a lot of what I write on this blog is pessimistic, critiical, or both, but every once in a while it’s nice to call attention to some positive, encouraging developments. In this spirit, I was heartened to read that a bipartisan group of U.S. Senators last week introduced a new bill, the “Combating Global Corruption Act of 2017” (CGCA), that strikes me as quite a good idea overall. Yes, I realize that most bills like this never make it out of committee, let alone get enacted into law. And yes, the bill has a number of problems, some of which might be fixable through the amendment process but others of which are more inherent. But on the whole, it seems to me that this is the sort of bill that the U.S. anticorruption community ought to support.

Here’s a quick summary of what the bill would do, why I think it’s basically a sound idea, and (because I can’t help myself) a few of its problems and difficulties. (The full text of the bill can be found at the link above, and a press release about it from Senator Cardin’s office is here.) Continue reading

Guest Post: The U.S. Retreat from Extractive Industry Transparency–What Next?

Zorka Milin, Senior Legal Advisor at Global Witness, contributes today’s guest post:

The US Department of the Interior recently took steps to halt its work on implementing a global transparency initiative for the resource sector, known as the Extractive Industries Transparency Initiative (EITI). This announcement came on the heels of the Congressional action repealing a related rule, adopted by the SEC pursuant to Section 1504 of the Dodd-Frank Act, that required oil, gas and mining companies to publish their payments to governments. The two issues are related but distinct. First, 1504 rule required US-listed companies to report payments they make to governments around the world. In contrast, the Extractive Industries Transparency Initiative (EITI) applies in those countries whose governments choose to join the initiative (including the US) and requires payments to be disclosed both by the recipient government as well as by all extractives companies that operate in that country. These differences in scope make the two transparency measures necessary complements to each other. EITI produces valuable information from governments about the payments they receive for their natural resources, whereas mandatory legal rules like 1504 are necessary to ensure meaningful and broad reporting from companies, including in those resource-rich countries such as Equatorial Guinea and Angola that are not part of EITI but are in desperate need of more transparency. Indeed, the US EITI experience shows that even in those countries that do commit to implementing EITI, EITI alone might not be enough to compel all companies to report, if it is not backed by domestic legislation.

Officials at Interior appear to be retreating from their ill-advised decision to effectively withdraw from EITI, but these mixed signals, especially when viewed together with the Congressional action, send a troubling message about the US government’s changing stance on anticorruption, and set back a long history of US leadership on these issues. Nonetheless, while these recent US developments are a setback from a US anticorruption perspective, the rest of the world is powering ahead with this much needed transparency. Continue reading

Large-Scale Land Acquisitions: Opportunities for Corruption

Recent years have seen a significant rise in large-scale land acquisitions by foreign investors, generally for agricultural or extractive purposes. Many of these land deals, termed “land grabs,” have had injurious effects on local populations who are often pushed off of their land without their informed consent. (For a description of contemporary land grabs and a land grab bibliography, see here.) Foreign companies and governments secure the majority of these land deals in poorer countries, where large tracts of land can be purchased cheaply, and where many of the local inhabitants do not have the means to contest the deals through the legal system. The land is frequently used for agriculture or production of “flex crops” (such as soy or palm oil), which are then sold abroad, rather than to the host country. Therefore, land grabs can result in not only the displacement of local communities, but also the reallocation of these vital resources to external actors, rather than to the inhabitants of the host country.

Large-scale land deals are often facilitated by corrupt practices perpetrated by the foreign purchaser and/or the host government, through the transactions themselves or through weak institutions. Last November, the International Corporate Accountability Roundtable (ICAR) and Global Witness released a report that details the opportunities for corruption at each stage of large-scale land acquisitions, as well as the current legal frameworks for addressing this corruption. As noted in the report, corruption can occur in each of the six phases of a land deal: Continue reading

TNI’s Gold Mine: Corruption and Military-Owned Businesses in Indonesia

The Grasberg Mine, located close to the highest mountain in West Papua, Indonesia, is the world’s largest gold mine and third-largest copper mine. The mine, owned by the corporation Freeport-McMoRan Copper & Gold, has been the site of strings of grave human rights abuses, linked to Indonesia’s own National Armed Forces (Tentara National Indonesia/TNI). TNI’s presence in the territory is ostensibly to protect the mine, and Freeport’s Indonesian subsidiary acknowledges having made payments of as much as US$4.7 million in 2001 and US$5.6 million in 2002 for such government-provided security. A report by Global Witness, however, revealed numerous other payments ranging from US$200 to US$60,000 that Freeport Indonesia allegedly made to individual military officers.

The TNI’s sale of security services to companies like Freeport is only one of the many business ventures conducted by the TNI and its officers. As Human Rights Watch has reported, the Indonesian military has been supplementing its income through both its formally established companies, and through informal and often illicit businesses such as black market dealing. Moreover, the military’s business activities (both lawful and unlawful) are largely shielded from public scrutiny: budgeting for military purposes is generally kept secret, and TNI members generally refuse to answer questions about institutional spending.

Military-owned business in Indonesia are problematic, not only because this private-sector activity impedes military professionalism and distorts the function of the military, but also because it also contributes to crime, human rights abuses, and especially corruption. This problem is greatly compounded by the fact that TNI officers generally enjoy immunity from corruption charges brought by civilian institutions. In fact, the Transparency International’s Defense and Security Program has deemed Indonesia one of the countries most prone to corruption in its defense and security institutions. It is therefore appalling that this issue has not been addressed more seriously by the Indonesian government. Although a 2004 law mandated the transfer of control over TNI businesses to the civilian government within five years, the law did not clearly specify which types of business activities were covered, and this legal loophole enabled the TNI to preserve many of its moneymaking ventures, including TNI’s infamous security services—to say nothing of already-illegal criminal enterprises and illicit corporations. Moreover, despite the five-year timetable in the law, the government has been notably reluctant to enforce the transfer of ownership, making repeated excuses alluding vaguely to the need for the TNI to compensate for the lack of budgeting for security purposes. As a result, despite some efforts to reform the way the TNI is allowed to handle its businesses, military-owned businesses in Indonesia continues to flourish, with the Indonesian people of Indonesia having to pay the price.

The government’s weak response towards the military’s non-compliance with the 2004 law is merely one of the many indicators of how impervious the TNI’s power and seeming impunity. There are factors that contribute to this impunity, along with the corresponding corruption and abuse of power in the operations of military-owned businesses: Continue reading

Can’t See the Forest Because of the (Missing) Trees: How Satellite Imagery Can Help Fight Illegal Logging

Illegal logging is one of the gravest threats to the environment, and to the people (and countries) that depend on forest resources. Global Witness’s 2013 Annual Review describes industrial logging as a force that “drives land grabs, promotes corruption, contributes to climate change, fuels conflict and human rights abuses, and threatens over one billion people who rely on forests for their livelihoods and well-being.” The problem has been documented with surprising depth. Prominent examples include investigative work done by Global Witness (including two short films, Inside Malaysia’s Shadow State, which shows undercover interviews with members of then-Chief Minister of Sarawak Taib Mahmud’s family and legal team advising a “foreign investor” how to use bribery and fraud to illegally clear land for a palm oil plantation, and Rubber Barons, which documents land grabbing by a Vietnamese rubber firm), as well as other groups like the Environmental Investigation Agency, which recently recounted how army officials protect Chinese loggers’ passage into Myanmar, despite new laws entirely banning foreign exports of logs. In the popular media, NPR’s All Things Considered and The New Yorker looked at illegal logging in Russia and allegations of its yield being sold by major U.S. retailers, while The Economist called out HSBC’s involvement with dirty loggers. The issue is not confined to developing economies—a World Bank paper enumerated the breadth and variety of possible illegal acts surrounding the logging industry and its products worldwide, noting that practically all involve corruption. The problem, then, appears well-known and reported but remains widespread, possibly getting worse.

Illegal logging remains persistent largely because of pervasive corruption. A number of proposals have already laid out systems to address forestry corruption. Possibilities include land tenure arrangements that give management to local or indigenous groups, certification schemes for wood products, and a variety of monitoring and transparency mechanisms. A 2009 World Bank report provided a “comprehensive framework” involving five principal parts, each with a number of sub-components. Scholars, NGOs, and international organizations have noted the need for technology to increase monitoring capabilities. Technological developments may offer the key to progress in the fight against illegal logging—allowing circumvention of (or greater pressure on) the corrupt government officials who ignore, or sometimes participate in or profit from, the unlawful destruction of forests.

A previous post discussed one such technology, isotope provenancing, used to identify the origin of wood. This technology, however, has its limits. (For example, it does not help when forests are razed not to harvest the timber, but to clear the land for other uses, such as palm oil and rubber plantations.) Other new technologies can help show how corruption in the logging industry happens, working forward from the site of the problem instead of tracing back from imported products. One of the most promising tools—satellite imaging—is in fact already available, and could be very effective if deployed more appropriately and aggressively.

Continue reading