How DARE the U.S. attempt to dictate Canadian foreign trading policies?

The BBQ Pit
41

Seriously, I’m Canadian, but US law has had far more ramifications on my life with numerous challenges to to the way we extract and market our resources, namely lumber , and the complete disregard for our ownership of the salmon spawned in our rivers.
But ever since Helms-Burton we knew this was coming.Such an arrogant law !

I can’t imagine any other country that has a law like it. Has there ever been an American convicted by a foreign government for actions committed in the US ?

My daughter has a part time job at the counter for a chain of cigar stores. Among the several outlets she has worked, two are in the top two hotels in Vancouver frequented by Americans. The non-hotel outlets only carry colts, but the two big hotel outlets carry many brands of Cuban cigars for the American guests. Should I ask my daughter to quit because she is breaking US law and could go to jail?

42

Yes, but what I and a few others have been arguing is that any US law should apply only in the US (or to US citizens), regardless of any statements to the contrary. Anything else becomes a matter of international law, which must be agreed to by all concerned parties. Either that or it’s an act of aggression by one nation against another.

43

For the record my post was only intended to create a better-working example. I haven’t read the article linked in the OP and so I have no actual position regarding this whole issue.

44

Ok, we are all in agreement that Helms-Burton is a stupid law so quit arguing that point. We all agree.

The point is whether laws can be extraterritorial in their scope and the answer is yes. AMny western countries make it a crime for their citizens to have sex with minors anywhere in the world, even if it is not a crime where it was done.

Does Canada have such a law? If it does, should it not? If it doesn’t, should it?

A Canadian who murders another Canadian in a country where killing Canadians is not a crime would probably find himself prosecuted in Canada if he were to return. Should this be so? Or is it arrogance on the part of Canada?

45

Well, after the initial knee-jerk reaction it seems the Canadian government isn’t making too much noise about this.

They said in the globe and mail this morning that Canadian law forbids using Canada for the express purpose of breaking the American embargo. We are allowed legitimate trade with Cuba but not goods funneling. Any legal eagles have more info on this?

46

Then take it up with every nation in the world. If I, a US citizen sitting in the US, aid a criminal act in Canada I am subject to prosecution in Canada. Period. That’s the way it works for all countries. If you cause a harm in their country, they reserve the right to prosecute you for it. This is very basic international conduct.

While you can disagree with the underlying law under which the guy was prosecuted (and I haven’t heard anybody defending it) the prosecution itself is not at all unusual nor is it anything close to an act of aggression.

47

The federal appellate and district courts are divided into circuits. Here is a map of them. Decisions made by courts apply in that court and any court beneath it. So, decisions of the Supreme Court apply to the Supreme Court and all the other federal courts. Decisions by the Court of Appeal in one circuit, bind that appellate court and all the district courts in that circuit. And decisions of a District Court bind the district court.

If the District Court in Philadelphia decided that the law Sabzali was prosecuted was unconstitutional, that decision wouldn’t bind a court, say in New York.

This means that it is possible for different circuits to apply the same law, but give it different meanings. One of the jobs of the Supreme Court is to resolve conflicts in interpretation among the various circuits.

I can understand and sympathise that this seems the right way to do it. Unfortunately, once a person falls under the jurisdiction of a court, that court begins its analysis by looking to its rules. For Sabzali, that analysis seems to have started and ended with US law.

If this were a Canadian citizen working for a Canadian company in Canada (or everywhere else that isn’t the US), I’d say prosecution under Helms-Burton would be quite overreaching.

Also for the record, I too am baffled at the lengths one of the most powerful nations on Earth will go to just to beat up on one of the weakest nations.

48

Here’s a question for outraged Canadians.

There are loads of states in the U.S. where buying a handgun is quick, cheap, easy and legal. Suppose an American gun dealer sells hundreds of handguns to a Candian national, knowing full well that the Canadian plans to smuggle them into the Great White North, where such weapons are illegal.

Has the American gun dealer broken any U.S. laws? PROBABLY not.

But if that American is ever foolish enough to set foot in Canada, might he be subject to arrest there? It’s quite possible.

If that happened, I wouldn’t shed any tears for him. The question is, would you Canadians be outraged over the prosecution of an American who didn’t violate any American laws?

No, I didn’t think so.

49

Didn’t France nail Yahoo recently over some Nazi stuff that was offered for sale on a Yahoo site? France bans the sale of that kind of thing and even though the Yahoo site was located in the USA, citizens of France had ready access to it.

50

Seems this might be the case. Looking for more info on the subject, I found that Sabzali was a contractor for the subsidiary, not an employee. Working on a related story, the Hamilton Spectator noted that Sabzali was self-employed.

Closer reading of the aforementioned articles mention that he sold the products on behalf of the companies, not as an employee.

As well, the question of intent hasn’t been addressed. As I’ve noted above, the sales to Cuba represented less than 1% of the company’s net profits. Not at all worth the risk if you know it could get you put away for 205 years. According to the articles, Sabzali obtained a opinion on the legality of the issue. He acted in good faith, believing that his actions (while in Canada) were on the up and up (I’m assuming for all laws concerned).

51

The issue seems rather clear to me, and I don’t see what the uproar is about. If America enforces a trade restriction on its companies with respect to a ban on trading with someone in particular, it does so in such a manner that the companies cannot simply hire a foreign worker to do their dirty work for them in order to dodge the law that the company is subject to.

This is, in no way, particularly stunning to me at all. In fact, if I may be so bold, it makes perfect fucking sense. How else is a trade embargo supposed to happen?

IMO the person(s) who should get punished are the ones responsible for this decision, even if that ends up being a Canadian national.

52

That doesn’t really matter. He, as an individual, aided a company in breaking a US law. There is nothing in the law discussing the employment situation of the individual charged with breaking the law.

And his actions while in Canada were fine. But once he came to the US, he was liable for the violation. The US didn’t try to force Canada to try him. The US didn’t try to have him extradited. All the US did was try him once he came to the US. If his counsel told him the US wouldn’t arrest him then it’s his counsel’s fault. And, personally, I think it would be rather silly for a Canadian attorney to tell somebody that Canada’s laws somehow trump US laws for people in the US. Canada’s laws apply in Canada only.

Assume it’s illegal to send certain material into China. Now, if I e-mail prohibited material from the US into China I’ve done nothing wrong in the US. If China asks the US to arrest me the US will refuse. If China asks the US to extradite me, the US will refuse. But once I step foot in China I can be arrested and tried. That’s the proper analogy. People are up in arms because the US allegedly is telling Canada what to do. But the US never once told Canada to try him or arrest him or do anything to him. All the US did was arrest him once he willingly entered the US.

53

That’s not quite my point. What I’m trying to get at is that mens rea (the guilty mind) does not apply. He believed, and had a legal opinion, that everything he did was kosher. Putting aside the question of whose laws apply right now, he believed none of them did and the whole embargo question was therefore a non-issue.

With your Chinese e-mail analogy, I’m assuming that you knew the material was illegal. You had the intent to send it, even though you knew it was wrong.

I don’t know what Chinese law has to say about intent, so I’ll bring it back to Canada/U.S. and apply your analogy to that:

Assume that you knew it was illegal to bring some types of explicit pornography into Canada (as was the case until recently), and a friend up North asked you to e-mail some prohibited pictures to him. You knew, however, that to do so directly was a crime. You talk to a lawyer who tells you that since your server is located in the U.S. and the porn is merely a collection of bits as opposed to a physical manifestation, no law is being broken*****. Secure in the knowledge that you are therefore doing nothing wrong, you send the files to your friend.

Turns out the Canadian government interprets the law differently, and your friend is arrested for importing illegal pornography. Canada asks the States to extradite you as an accessory in this porn ring. Your government’s reaction is to tell Canada that you were of the informed belief that no law had been broken. You believed that it did not apply to your circumstances and therefore acted accordingly. Had you broken a Canadian law? Yes. Were you aware of this law? Yes. On the advice of a lawyer, did you believe that you were breaking this law? No.

You did not have the intent. You acted in good faith, believing you were a law-abiding citizen. Chances are, the government would accept this argument and even allow you into the country. With the request that you do not do it again.

*****[sub]I have no idea if this is would be considered valid or not. I merely invented it for the sake of argument.[/sub]

54

>> He believed, and had a legal opinion, that everything he did was kosher. Putting aside the question of whose laws apply right now, he believed none of them did and the whole embargo question was therefore a non-issue

I am sure he used that as a defense and it might have been considered an extenuating circumstance but, as we all know by now, ignorace of the law is no excuse. Besides, it seems to me it is the obligatory excuse but I would not buy it. The least diligence will lead you to OFAC and, even I, understand you cannot deal with Cuba. I think the whole things is just a bogus excuse. Obeviously he is not going to say he knew full well he was breaking the law.

55

The problem is that nobody else recognizes this embargo. Quite the opposite. Canadian law states that it’s illegal to honour this embargo.

As well, U.S. law states that U.S. companies are allowed to bring lawsuits against those foreign countries that trade with Cuba, therefore affecting trade decisions that are none of its business at all. Canadian companies trade with Cuba. Someone in the U.S. decides that these Canadian companies are breaking U.S. laws and sues them for $12 billion dollars, forcing the Canadian company into bankruptcy, affecting the Canadian economy. Canada has done nothing but trade with a country the U.S. doesn’t like and is punished for it. The U.S. has suffered no adverse action, but still feels it’s justified in doing this.

As for the “foreign worker” aspect, the subsidiary company is headquartered in Canada, its president is in Canada, it pays Canadian taxes and follows Canadian laws. A certain percentage of its profits go to a bigger company in the U.S. If American law stated that all companies must sell pink fuzzy slippers and under no circumstances sell blue ones, and Canadian law dictated the exact opposite (sell blue, no pink), this company would be obliged to sell the blue ones. Even though some money goes to the States.

Canada and US are economically joined at the hip with parent companies and subsidiaries going back and forth across the border. And Canada has another trading partner that the U.S. doesn’t like, which makes issues like this very touchy. IMO, it’s not black and white.

56

It’s not ignorance of the law, he was fully aware of it, just did not believe that it applied to his circumstances.

And it’s not an extenuating circumstance, it’s a valid legal argument.

57

>> The problem is that nobody else recognizes this embargo.

Aguecheek, it seems you have not read the thread. This has been addressed already. We all agree this specific law is stupid but it is legal. The fact that other countries have no embargo on Cuba is quite irrelevant. The law is legal (if stupid).

58

>> It’s not ignorance of the law, he was fully aware of it, just did not believe that it applied to his circumstances.
>> And it’s not an extenuating circumstance, it’s a valid legal argument.

Well, the court didn’t buy it and, frankly, I don’t think I would either. OFAC seems quite clear to me. I guess the lesson is that if he’s not bright enough to understand the law he should not be doing business he does not fully understand.

59

First, let me go back and hit some points I missed earlier. I think the argument that this guy would have violated the Foreign Extraterritorial Measures Act defense is mostly a smokescreen. How, exactly, does the Canadian government go about proving a person helped the US with Helms-Burton. Are all Canadians that work for US companies that don’t trade with Cuba guilty? If you work for a US company that plans to trade with Cuba then changes it’s plans are you obligated to launch a hostile takeover in order to ensure that the company trades with Cuba? Sorry, the Act is just jingoistic crap (and, yes, other countries can be jingoistic). The Act is meaningless as anything other than a foreign policy statement. To argue he was at risk of being prosecuted under it really strains credulity. How the hell do you prove that somebody criminally failed to trade?

If his attorney told him that the US couldn’t prosecute him, then his attorney must have skipped class the day they taught the law. I will repeat that prosecuting a foreign national for violating domestic law is a very common and accepted concept. In fact, the legislative history of the Extraterritorial Foreign Measures Act explicitly mentions that Canada has no problem with extraterritoriality, they just have a problem with extraterritoriality for Helms-Burton. While Canada’s objection is noted, they’re insane if they think that makes a difference to prosecuting people in the US.

As for the issue of intent, that defense was raised and rejected by the jury. Apparently they felt that he was funneling goods from the US to Cuba. It seems like most of the objections are now over the jury’s decision and the Helms-Burton Act. Fine. But using the prosecution itself as evidence of American “arrogance” just doesn’t hold water.
On preview

I’ve already addressed this. This provision has been suspended by the President. US companies can not bring lawsuits against foreign countries. And even if the provision wasn’t suspended (and I’m glad it is) not every US company could sue. The suspended provision allows US companies that had their property seized by Cuba to sue countries or companies that invest in the seized property.

And your slipper analogy only really discusses the wisdom of the underlying law and seems to change some basic facts… Everybody has agreed Helms-Burton isn’t a good idea. What we are arguing is that the prosecution isn’t a case of US arrogance.

60

First, I have been unable to tell what precise crime Mr. Sabzali was charged with. And I don’t mean “violation of the trade embargo,” I mean what specific statute was he charged with breaking. If one of y’all has that information, please post it. It is difficult to determine what the rationale was for charging him since I can’t figure out what he was charged with. For example, the newspaper articles appear to indicate he was charged for actions he undertook pre-1996. If so, I don’t see how he could have been charged pursuant to Helms-Burton (as opposed to an earlier embargo law), since H-B was passed in 1996 and the prohibition against ex post facto prosecution applies to foreign nationals as well as U.S. citizens. So I frankly admit I’m not 100% sure what when on in this case.

Second, mens rea (or guilty mind) is only relevant in those crimes that require a particular state of mind (i.e., willfully, wantonly, maliciously) as an element of the crime. For acts that are criminal without a particular state of mind, the criminal’s mens rea is irrelevant. In this case, since I don’t know what crime Sabzali was charged with, I don’t know if that crime required a particular mens rea, though I kind of doubt it. White-collar (business related) crime usually doesn’t. So I wouldn’t get bogged down it speculating about whether the man thought he was committing a crime or not; it probably doesn’t matter. In any event, IMO if you even suspect something you are considering doing may be criminal, the wiser course is not to do it.

Third, the United States has every right to attempt to “dictate” the foreign policy of other nations, just as every other country does. If you as a country support terrorists/ export drugs/ refuse to meet pollution controls/ insist on flying that particularly unattractive flag/ whatever, and another country objects, it may well attempt to dictate your foreign policy. This is done by both the carrot and the stick. Carrot: If you do what we ask, we will reduce your debt to us. Stick: If you don’t do what we ask, we will slap a big honkin’ tarriff on your products. The country of France is currently attempting to influence foreign policy by refusing to share crucial documents in the Massoui case, where a French National is subject to the death penalty, which France does not support. Such attempts at influence only become “dictating” when the country really cannot afford to pass up the carrot or put up with the stick, but I don’t think that is the problem of the country wielding the carrot and/or stick.

Fourth, Canada in turn has every right to resist what it sees as attempts to dictate its foreign policy, as (again) every other nation does. This includes passing laws, like the Foreign Extraterritorial Measures Act (FEMA – not to be confused with the totally unrelated and to this discussion irrelevant U.S. FEMA law) that counter such measures. And it appears clear that Canadian FEMA does in fact prohibit Canadian citizens from complying with Helms-Burton. That is no smoke screen, it is simply a fact. In effect, Canada has said, “We do not agree with this U.S. law, we think it is counter-productive, and we forbid our citizens from complying with it.”

So where does that leave a person such as Sabzali? IMO, it leaves him trading in Canada and staying in Canada if he knows or suspects he may be violating U.S. law. Or, on the other hand, it leaves him trading in the U.S. and staying in the U.S. if he knows or suspects he may be violating Canadian law.

I would add, parenthetically, that since it appears clear he (through his company) was trading with Cuba, there is really no way he could argue he violated neither H-B or FEMA. Since they are diametrically opposed and mutually exclusive, he pretty clearly had to be in violation of one or the other: Either he complied with the embargo (violating Canadian law), or he did not (violating U.S. law).

Frankly, I have no problem with any of this. The more interesting question to me is why we’re talking about Helms-Burton and pre-1996 conduct, since the two are mutually exclusive.