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Open Society Justice Initiative v. Trump (Amicus Brief)

In a case challenging aspects of the Trump Administration’s imposition of sanctions against International Criminal Court staff members, the Brennan Center filed an amicus brief in support of Plaintiffs’ motion for a preliminary injunction. The brief explains the history of the relevant emergency powers and why the court should enjoin any sanctions that would prohibit Plaintiffs from engaging in certain transactions with the ICC.

Published: November 10, 2020

On June 11, 2020, Pres­id­ent Trump issued Exec­ut­ive Order 13928, estab­lish­ing a sanc­tions regime for the Inter­na­tional Crim­inal Court (ICC). Vari­ous Trump Admin­is­tra­tion offi­cials, includ­ing former National Secur­ity Advisor John Bolton and Secret­ary of State Mike Pompeo, had been crit­ical of the ICC, to which the United States is not a party. The exec­ut­ive order followed approval by the ICC of an invest­ig­a­tion into alleged war crimes commit­ted by U.S. person­nel (among others) during the conflict in Afgh­anistan.

The exec­ut­ive order claims that the ICC’s attempts to invest­ig­ate the United States and allies that are not members of the ICC consti­tutes an “extraordin­ary and unusual threat to the foreign policy of the United States,” and invokes the National Emer­gen­cies Act (NEA) and the Inter­na­tional Emer­gen­cies Economic Powers Act (IEEPA). IEEPA provides the pres­id­ent with the abil­ity to freeze U.S.-based assets of desig­nated persons or entit­ies and block U.S. persons from trans­act­ing with them.

The exec­ut­ive order states that “foreign persons” determ­ined by the Secret­ary of State to be invest­ig­at­ing U.S. person­nel, or person­nel of allies of the U.S. who are not members of the ICC, as well those who assist them, may be sanc­tioned. (The exec­ut­ive order also imposes visa bans on desig­nated indi­vidu­als pursu­ant to a separ­ate stat­utory power.) On Septem­ber 2, Secret­ary Pompeo desig­nated Fatou Bensouda, the ICC’s chief prosec­utor, and Phakiso Mochochoko, the head of the prosec­u­tion’s Juris­dic­tion, Comple­ment­ar­ity, and Cooper­a­tion Divi­sion. On Octo­ber 1, 2020, the U.S. Depart­ment of the Treas­ury’s Office of Foreign Assets Control issued regu­la­tions imple­ment­ing the sanc­tions.  

Also on Octo­ber 1, Plaintiffs filed their case against the govern­ment. Plaintiffs are the Open Soci­ety Justice Initi­at­ive (OSJI) and four dual-national U.S. law profess­ors: Diane Marie Amann, Milena Sterio, Margaret deGuz­man, and Gabor Rona. All of the plaintiffs inter­act with the ICC in ways that they believe could be inter­preted as viol­at­ing the sanc­tions, and which would render them subject to civil or crim­inal penal­ties, or to sanc­tions them­selves. For instance, plaintiff OSJI provides tech­nical assist­ance and train­ing to the court; plaintiff Amann is a special adviser to the Prosec­utor on chil­dren in armed conflict; plaintiff Sterio super­vises law students who work on matters in conjunc­tion with the ICC prosec­u­tion office; and plaintiff Rona submits amicus briefs to the court. In light of the sanc­tions, Plaintiffs have ceased enga­ging in such inter­ac­tions with the ICC.

Plaintiffs claim viol­a­tions of their First Amend­ment free-speech rights and Fifth Amend­ment due-process rights, as well as a viol­a­tion of the Admin­is­trat­ive Proced­ures Act. They also claim that the govern­ment has exceeded the powers that Congress had gran­ted in IEEPA by prohib­it­ing exchanges that are carved out from IEEP­A’s powers under what is known as the “inform­a­tional mater­i­als” exemp­tion. This broad exemp­tion was added by Congress through two amend­ments, enacted in 1988 and 1994, and was meant to ensure that the govern­ment could not use IEEPA to prohibit the exchange of “inform­a­tion or inform­a­tional mater­i­als.” The Plaintiffs moved for a prelim­in­ary injunc­tion on Octo­ber 9.

On Novem­ber 3, the Bren­nan Center filed its amicus brief. The brief describes the back­ground to the NEA, the IEEPA, and the “inform­a­tional mater­i­als” exemp­tion. Anti­cip­at­ing that the govern­ment will argue that both the NEA and IEEPA grant unre­view­able discre­tion to the pres­id­ent, the brief shows that both laws were meant to serve as signi­fic­ant checks on the use of emer­gency powers, not to grant the pres­id­ent unfettered license. The brief also shows that the legis­lat­ive history and language of the “inform­a­tional mater­i­als” exemp­tion demon­strate that it was meant to afford broad protec­tions for speech-related activ­ity. And finally, the brief explains why robust judi­cial review of the use of emer­gency powers and IEEPA is both appro­pri­ate and essen­tial.

For more, read the amicus brief here.