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Is the Uyghur Human Rights Act going to be the Bridge Too Far for Magnitsky-type Meddling?

Chinese Newspaper Calls for Retaliation Against American Nationals!

The Uyghur Human Rights Policy Act is a well-meaning law. So is the Magnitsky Act. So is the Global Magnitsky Act. We are all for more human rights around the world.

BUT there is a serious flaw in each of these bills: They target individuals and companies, first in Russia and other nations (Saudi Arabia, in this case), by name as human rights abusers. There is no trial or hearing prior to these designations and the designation of human right abusers is not the only sanction imposed on Congress: There is the potential of seizure of property (from the Saudi Arabia sanctions summary of a major law firm):

The 17 officials have been added to OFAC’s Specially Designated Nationals (SDN) List. This means that the individuals are considered blocked parties and U.S. persons are generally prohibited from engaging in any transactions with the officials. Moreover, any SDN property or property interests that enter U.S. jurisdiction, including US Dollars transiting the U.S. financial system, must be blocked and reported to OFAC. OFAC also applies sanctions to entities owned 50% or more by a designated person.

How does a person get off the naughty list? There is no clear procedure in these acts to do so. Here is my prior analysis:

I am suggesting that when Congress punishes individuals without a hearing or giving those individuals a chance to be heard it implicates constitutional rights: It potentially is a bill of attainder forbidden to Congress precisely because the British parliament abused the privilege. It certainly violates the spirit of due process. The fact that most congressmen voted for it means nothing for its constitutional infirmities. (Ron Paul voted no.)

Another analysis:

I just posted on the original Magnitsky Act, which was a gross meddling in the internal affairs of Russia and which named names and convicted those as human rights abusers.  It violates in my view the clear provision of the US Constitution that states as follows (Article I, Section 9):

No Bill of Attainder or ex post facto Law shall be passed.

Congress cannot name names and then punish those alleged offenders or delegate that unconstitutional power to any President.  (I am well aware that some lower federal court precedent is against me on this but this question has not been clearly adjudicated by any US court!)

Now there is a new “human rights” law: The Uyghur Human Rights Policy Act:

Here is a pertinent portion of the Act as enrolled:

Not later than 120 days after the date of the enactment of this Act, the President shall submit to the appropriate congressional committees a list of senior officials of the Government of the People’s Republic of China who the President determines are responsible for or who have knowingly engaged in serious human rights abuses against Turkic Muslims in the Xinjiang Uighur Autonomous Region and elsewhere in China. Such list shall include the following:

(1) Senior Chinese officials, such as Xinjiang Party Secretary Chen Quanguo, who are directly responsible for the ongoing repression in the Xinjiang Uighur Autonomous Region.

(2) Senior Chinese officials responsible for mass incarceration, political indoctrination, or reeducation efforts targeting Uighurs and other predominantly Muslim ethnic minorities.

Check this out – some names may be CLASSIFIED!

The list required under subsection (a) shall be submitted in unclassified form but may contain a classified annex.

So you can be deemed a human rights abuser and NOT EVEN KNOW IT! How can the USA enact such a law? Franz Kafka must be smiling ironically…

And Global Magnitsky Act sanctions apply to named human rights abusers – they cannot enter the USA and their property is seized if in the US or in the control of a US person (that could mean a US bank):

(b) SANCTIONS DESCRIBED.—The sanctions described in this subsection are the following: (1) INADMISSIBILITY TO UNITED STATES.—In the case of a foreign person who is an individual— (A) ineligibility to receive a visa to enter the United States or to be admitted to the United States; or (B) if the individual has been issued a visa or other documentation, revocation, in accordance with section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)), of the visa or other documentation. (2) BLOCKING OF PROPERTY.— (A) IN GENERAL.—The blocking, in accordance with the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), of all transactions in all property and interests in property of a foreign person if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person.

But again: Sanctions against individuals by name by the President with the blessing of Congress. No trial. No defense. Punishment. Somebody needs to sue.

But is this not our business if the Chinese run concentration camps? There is a better way to publicize any facts that exist: The UN Security Council. The UN Human Rights Council. But it is unjust to identify individuals as human rights abusers without a trial or hearing. And then take their property!

Now meddling always has a risk: It is not just an unconstitutional bill of attainder. Meddling in matters not our business can cause what Ronulus Magnus II (Cong. Ron Paul) called “blowback”; somebody might get mad – and get even.

A Chinese newspaper (Global Times) which has called for a new law – and these newspapers do not do this unless there is government approval for the ideas in these articles – here is what the Global Times said (emphasis added by this blogger):

US politicians are keen on using the human rights issue as a tool against rival countries, but turn a blind eye to domestic woes. Trump’s top economic adviser, Larry Kudlow, refused to admit that systemic racism exists in the US. If the US cannot face up to its own problems, it’s imperative for the international community to step in, for example, setting up a special committee and starting an inquiry. China’s top legislature could also consider passing a “George Floyd human rights bill” to send the US a message, urging it to step up human rights protection.

Breitbart has suggested such a Chinese law might have similar Magnitsky-style sanctions against US officials (again my emphasis):

The Global Times compared the establishment of concentration camps to allegations of law enforcement racism in America in its article Thursday and urged the Chinese National People’s Congress (NPC) to pass a “George Floyd human rights bill,” presumably sanctioning American officials.

***

Given the content of the Uyghur Human Rights Policy Act, however, such a bill could allow for sanctions against American officials that Beijing declares are complicit in racist activity.

Lions and Tigers and Bears, Oh my! Meddling runs a risk that another nation might retaliate.

So a local police chief could be named by PRC as “racist” and barred to enter China and his or her assets seized if they come into the control of Chinese authorities.

Or a mayor could be targeted. Or a political leader. Or a TV commentator.

Now the media in the USA will light up – against China! Instead of placing the blame where it belongs – Congress and the President.

What if the EU or other powerful nations agree with China? Or for their own reasons, want to sanction US officials and nationals? What then? Service to one’s country ought not come with the price of you can no longer travel abroad. Or your property being confiscated.

These laws are bad policy and unconstitutional and ought to be repealed.

It is not the first time, innocents have been targeted for retaliation. Such as the Russian adoption law. We need to repeal and renounce these Magnitsky-style laws and issue something rare for me to call for: An American apology.

Actually, we need something else: Some sort of clear legal norm – maybe even (gasp!) a UN Treaty on the issue of sanctions.

By the way only one House member voted NO and it was NOT the first Libertarian Representative (Rep. Amash – ask him why) but rather the brave GOP Congressman from Kentucky: Thomas Massie. This bill actually passed the Senate by Unanimous Consent. I can only hope Sen. Rand Paul was out that day.

I wrote this in late June. This is now August 20. Sanctions are now being assessed against our officials. So far laughter and bravado (from today’s End of Day Report of Gary Bauer):

Communist China yesterday arrested billionaire Jimmy Lai, one of Hong Kong’s most successful financial leaders and the publisher of the most outspoken pro-democracy newspaper in the city.  Free speech in Hong Kong is dead.
 
But the bigger news was Beijing’s attempt to reach its long arm right here into the United States. 
 
The communist regime also imposed sanctions on 11 U.S. citizens, including Senators Tom Cotton, Ted Cruz, Josh Hawley, Marco Rubio and Pat Toomey and Representative Chris Smith.  It’s very revealing that the Communist Party bosses cannot find a single Democrat they want to sanction.
 
Sen. Cotton vowed to continue speaking up for the many victims of the Chinese Communist Party, including the Muslim Uighurs and every American who has died or lost their job due to the coronavirus.  I congratulate Sen. Cotton and his colleagues for earning Beijing’s scorn. 
 
I plan on slamming China’s communist tyrants with even more vigor in the months ahead in the hope of joining the senators on China’s sanctions list!

But laughter and bravado will stop if other nations decided to enforce the sanctions. Could some American national be detained? Could the assets of an American corporation be seized? Let’s stop the sanctions game or come up with a better way, consistent with due process and the Constitution, to assess the sanctions. And make sure any sanction regime hurts those in power, not those innocent people who can do nothing about it.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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