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.