Comments on: U.S. Prepares to Designate Eritrea as State Sponsor of Terrorism http://www.exportlawblog.com/archives/213 Latest News on DDTC, BIS, OFAC, and other export law matters Fri, 10 Feb 2012 10:06:23 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Mike Deal http://www.exportlawblog.com/archives/213/comment-page-1#comment-3560 Mike Deal Mon, 20 Aug 2007 18:44:00 +0000 http://www.exportlawblog.com/archives/213#comment-3560 Clif: I give my clients my analysis, an assessment of risk, and then let them "pays d'er money ands takes der chances". You may recall that when Bill Reinsch was Undersecretary, he told the anecdote about the export of an aircraft carrier to India without a license? I gave the opinion (supported by case law on the definition of scrap) that the export of the hulk of the ex-USS Bennington was an export of scrap, got the Navy to sign a certificate that said hulk was of no value other for reclamation of the metal, and then signed the SED that the export of the hulk via a towboat was G-DEST. Both Customs and OEE later had questions, but I'm still here and the only time I saw Leavenworth was when I was foxhunting with the Fort Leavenworth Hunt. I was disappointed when after talking with the reporters, the Baltimore Sun didn't quote me. As for Kenneth Timmerman and his article in American Spectator, which also failed to mention the extensive documentation I provided to him/it, my words cannot be printed here. My client, however, didn't pay an extra cent. That said, in this case I wouldn't recommend an export contrary to any such order. If the stakes were large enough, or the goal sufficiently important (e.g., exporting medical devices not elgible for TSRA because they use an operating system with an encryption module that renders the darn thing 5D002); I would recommend however, filing of an action for declaratory judgment. Neither the Times Mirror case not the Wisconsin project case were brought by exporters with any thing at stake (and we all know that the Wisconsin Project does its dead level best to keep the US from exporting anything), and the plaintiffs in both cases conceded the validity of continuing the EAR under IEEPA, because they had no dawg in the fight. Therefore, those cases have little precedential value and should be restricted to their facts. The government realized this when they decided not to appeal the baby-splitting decision in Quinn to the DC Circuit. Clif: I give my clients my analysis, an assessment of risk, and then let them “pays d’er money ands takes der chances”. You may recall that when Bill Reinsch was Undersecretary, he told the anecdote about the export of an aircraft carrier to India without a license? I gave the opinion (supported by case law on the definition of scrap) that the export of the hulk of the ex-USS Bennington was an export of scrap, got the Navy to sign a certificate that said hulk was of no value other for reclamation of the metal, and then signed the SED that the export of the hulk via a towboat was G-DEST. Both Customs and OEE later had questions, but I’m still here and the only time I saw Leavenworth was when I was foxhunting with the Fort Leavenworth Hunt. I was disappointed when after talking with the reporters, the Baltimore Sun didn’t quote me. As for Kenneth Timmerman and his article in American Spectator, which also failed to mention the extensive documentation I provided to him/it, my words cannot be printed here. My client, however, didn’t pay an extra cent.

That said, in this case I wouldn’t recommend an export contrary to any such order. If the stakes were large enough, or the goal sufficiently important (e.g., exporting medical devices not elgible for TSRA because they use an operating system with an encryption module that renders the darn thing 5D002); I would recommend however, filing of an action for declaratory judgment. Neither the Times Mirror case not the Wisconsin project case were brought by exporters with any thing at stake (and we all know that the Wisconsin Project does its dead level best to keep the US from exporting anything), and the plaintiffs in both cases conceded the validity of continuing the EAR under IEEPA, because they had no dawg in the fight. Therefore, those cases have little precedential value and should be restricted to their facts. The government realized this when they decided not to appeal the baby-splitting decision in Quinn to the DC Circuit.

]]> By: Clif Burns http://www.exportlawblog.com/archives/213/comment-page-1#comment-3555 Clif Burns Mon, 20 Aug 2007 13:23:24 +0000 http://www.exportlawblog.com/archives/213#comment-3555 I haven't heard any rumors of a 311 but it would be appropriate if, as seems likely, Eritrea is providing weapons to Al-Qaeda linked groups in Somalia. I haven’t heard any rumors of a 311 but it would be appropriate if, as seems likely, Eritrea is providing weapons to Al-Qaeda linked groups in Somalia.

]]> By: Scott K. http://www.exportlawblog.com/archives/213/comment-page-1#comment-3552 Scott K. Mon, 20 Aug 2007 11:19:27 +0000 http://www.exportlawblog.com/archives/213#comment-3552 Is there any inkling whether Treasury will issue a 311 on Eritrea? Is there any inkling whether Treasury will issue a 311 on Eritrea?

]]> By: Clif Burns http://www.exportlawblog.com/archives/213/comment-page-1#comment-3490 Clif Burns Fri, 17 Aug 2007 20:03:43 +0000 http://www.exportlawblog.com/archives/213#comment-3490 That may well be, Mike, but let me ask you this -- would you be willing to recommend that a client violate the sanctions on this theory? And would you be willing to serve the jail time in place of your client if there's a criminal conviction for the sanctions violation? That may well be, Mike, but let me ask you this — would you be willing to recommend that a client violate the sanctions on this theory? And would you be willing to serve the jail time in place of your client if there’s a criminal conviction for the sanctions violation?

]]> By: Mike Deal http://www.exportlawblog.com/archives/213/comment-page-1#comment-3488 Mike Deal Fri, 17 Aug 2007 19:29:34 +0000 http://www.exportlawblog.com/archives/213#comment-3488 I'm sorry, but has no one noticed that the whole damnYankee statute expired years ago. Whatever claptrap you might be able to gin out of the text of TWEA 5(b) as transmuted into IEEPA 1702, you can't get the former 50USC 2405(j) out of it, even if you hold your nose and buy the DC Districts decision in Quinn. I’m sorry, but has no one noticed that the whole damnYankee statute expired years ago. Whatever claptrap you might be able to gin out of the text of TWEA 5(b) as transmuted into IEEPA 1702, you can’t get the former 50USC 2405(j) out of it, even if you hold your nose and buy the DC Districts decision in Quinn.

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