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Legal Imperialism

Congress’ Drug Waltz

by CHRISTOPHER BRAUCHLI

The Congress doesn’t run-it waltzes.

–Charles Joseph, Comment to Comte Auguste de LaGardeChambonas (1814)

Congress is not as idle as it may seem.  Whereas much of the publicity it is getting suggests it is not getting anything done,  that is because the things it has not accomplished tend to be more interesting than the things a few of its committees have  gotten done.  The House Judiciary Committee is an example of this.   As has been observed here and elsewhere, in July it addressed the vexing problem confronted by peripatetic armed citizens.

Constitutionally armed citizens are confronted by a plethora of state laws covering concealed weapons.  Each time they cross a state line bearing concealed weapons they fear they may be in violation of the law of the state they are entering and that fear impinges on their rights to freely travel around the country. To remedy that, in July  the House Judiciary Committee passed the National Right-to-carry Reciprocity Act of 2011 in July.  If enacted by Congress all rules pertaining to concealed weapons will come from the federal government and not from individual states.   The Judiciary Committee has now passed amendments to the criminal code that, if enacted by Congress,  will fix a problem that was created by United States vs. Ivan Lopez-Vanegas et al. ,  a case from the U.S. Court of Appeals for the Eleventh Circuit  decided in 2007.

In Lopez the Court reversed the conviction of Mr. Lopez who was convicted of a conspiracy to possess, with the intent to distribute,  cocaine.  Mr. Lopez and his colleagues were assisting Prince Nayef bin Fawwaz al-Shaalan, the son-in-law of the Saudi Vice Minister of Defense (who is the brother of the former king of Saudi Arabia) by coordinating the purchase of cocaine.  Two tons of  cocaine were purchased in Colombia and transported on a plane owned by the Saudi royal family to Europe where all but 840 grams was distributed. (The Prince is a wealthy member of the royal Saudi family who owns oil interests in Colombia and Venezuela and the court does not explain why he was selling cocaine.)  French authorities seized the 840 grams two weeks after its arrival in France.  Following its seizure Mr. Lopez and others were apprehended and tried and in Mr. Lopez’s case, convicted.

The extent of Mr. Lopez’s activities in the United States consisted of hotel meetings that planned the operation.  The cocaine was never in the United States.  The government charged Lopez with violating two sections of the United States Code that, read together, make it a crime “to conspire to possess with the intent to distribute a controlled substance, such as cocaine.”   He was convicted in the trial court but  his conviction was reversed on appeal.  The court found that since none of his activities involved possessing or distributing cocaine within the United States,  Code sections relied on did not apply to him.  That was the end of the matter until September 2011.

For four years, Congressman Lamar Smith, the chair of the Judiciary Committee, had contemplated the effect of the decision.

By September 2011 he had decided that it was inimical to the best interests of the United  States for a violation of the Controlled Substances Act to apply only if the controlled substance was in the United States. Accordingly he proposed a bill that was passed by the Judiciary Committee on October 6.  It “amends the Controlled Substances Act to  clarify that persons who enter into a conspiracy within the United States to possess or traffic illegal controlled substances outside the United States, or engage in conduct within the United States to aid or abet drug trafficking outside the United States, may be criminally prosecuted in the United States. . . .”

The bill was baptized the “Drug Trafficking Safe Harbor Elimination Act of 2011” and does not distinguish between controlled substances that are legal in the country where the distribution is to take place and those that are illegal in that country.  Thus if someone in the United States enters into negotiations for the purchase and sale of a drug that is legal in the country in which the transaction is taking place, that individual can nonetheless be prosecuted in the United States.

The democrats on the committee tried to amend the bill to provide that it only applied if the controlled substance was illegal in both countries.  The Republicans set aside their dislike of the ever-expanding role of the federal government in the lives of ordinary citizens and retained language that caused the amendment apply to as many people as possible.

Commenting on the bill, a civil rights lawyer and author, Harvey Silverglate, said:  “Just when you think you can’t get any more cynical, a bill like this comes along.  It just sounds like an abomination.  [T]here’s no intuitive reason for an American to think that planning an activity that’s perfectly legal in another country would have an effect on America. . . . [T]his is just an act of shameless cultural and legal imperialism.  It’s just outrageous.”

He’s right.  Of course it is nice to see that occasionally a Congressional Committee can actually pass legislation, even if it’s bad.  It shows that at least one part of the Congress is not doing nothing.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.