Friday, March 26, 2010

The Problem with Alleged Kleptocrats and Visas …

Equatorial Guinea in the last decade has become Sub-Saharan Africa's third largest oil exporter. It has one of the highest GDP per capita in the world at $ 37,300 (CIA World Factbook  2008 est.)

Equatorial Guinea is also ranked 118 in UNDP’s current Human Development Ranking of 182 countries.  It has one of the highest infant mortality rates in the world. How much does it spend on education?  A mere 0.6% of the GDP.

If that is not distinctive enough, Equatorial Guinea places 12th in Transparency International’s Corruption Index for 2009. 

Ian Urbina had a piece on Teodoro Nguema Obiang of Equatorial Guinea who regularly visits his $35 million estate in Malibu, California, his fleet of luxury cars, his speedboats and private jet without any problem entering/exiting the United States (Taint of Corruption Is No Barrier to U.S. Visa | NYT | November 16, 2009).  Mr. Obiang’s Wikipedia entry states that he was born in 1971, nicknamed Teodorín and is the son of Teodoro Obiang Nguema Mbasogo, the president of Equatorial Guinea, by his first wife, Constancia Okomo. According to opposition figures, Teodoro is the favorite to succeed his father, who is rumored to be suffering from prostate cancer.  This rumored future of Equatorial Guinea graduated from Pepperdine University in Malibu, California. 

Excerpted from the NYT article:
The nation’s doors are open to Mr. Obiang, the forest and agriculture minister of Equatorial Guinea and the son of its president, even though federal law enforcement officials believe that “most if not all” of his wealth comes from corruption related to the extensive oil and gas reserves discovered more than a decade and a half ago off the coast of his tiny West African country, according to internal Justice Department and Immigration and Customs Enforcement documents.
Susan Pittman, a spokeswoman for the Bureau of International Narcotics and Law Enforcement in the State Department, said she was prohibited from discussing specific visa decisions. But other former and current State Department officials said Equatorial Guinea’s close ties to the American oil industry were the reason for the lax enforcement of the law. Production of the country’s nearly 400,000 barrels of oil a day is dominated by American companies like ExxonMobil, Hess and Marathon.
When asked how many times the laws have been used to bar corrupt foreign officials from entering the country, State Department officials declined to answer, citing privacy reasons, though Ms. Pittman said thousands of visas had been denied to corrupt officials using other legal means. A 2007 State Department report said the presidential proclamation, signed by President George W. Bush in 2004, had been used “dozens” of times.
The Justice Department memorandum, dated Sept. 4, 2007, and obtained by The New York Times, said the government believed Mr. Obiang’s assets were derived “from extortion, theft of public funds or other corrupt conduct.” From April 2005 to April 2006, the memorandum said, Mr. Obiang funneled at least $73 million into the United States, using shell corporations and offshore bank accounts to launder the money and ultimately buy his Malibu estate and a luxury jet.

Ms. Pittman also cited privacy reasons – but according to this privacy impact assessment from the State Department, visa applicants are not U.S. persons (that is, U.S. citizens or legal permanent residents), thus, they are not covered by the provisions of the Privacy Act of 1974 and the E-Government Act of 2002.

Information provided by the visa applicants, are however, considered a visa record subject to confidentiality requirements under section 222(f) of the Immigration and Nationality Act (INA).  But --

Here is what 9 FAM 40.4 N1 says about the maintenance of confidentiality of visa records, information, or other purposes information:
INA 222(f) provides for the confidentiality of visa records. As used in this context the designation “confidential” does not relate to the security classification of a document but rather to its releasability. The INA 222(f) generally requires that information contained in visa records: "shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States.”  

Therefore, the focus for determining the releasability of a given document (telegrams, memoranda, reports, and any other documentation relating to an identifiable applicant) from a visa file shall depend on whether its release provides any assistance in the administration or enforcement of U.S. law (whether Federal, State, or local), or whether release of information would breach the confidentiality provision of INA 222(f).
These restrictions also apply to direct quotations from information contained in visa records, to the visual inspection of such records, and to the disclosure of information from visa records.

Well – then …

In January 2004, President George W. Bush signed Proclamation 7750To Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged In or Benefiting From Corruption.”
Section 1. The entry into the United States, as immigrants or nonimmigrants, of the following persons is hereby suspended:

(c) Public officials or former public officials whose misappropriation of public funds or interference with the judicial, electoral, or other public processes has or had serious adverse effects on the national interests of the United States.

Sec. 2. Section 1 of this proclamation shall not apply with respect to any person otherwise covered by section 1 where entry of the person into the United States would not be contrary to the interests of the United States.

Sec. 4. For purposes of this proclamation, ``serious adverse effects on the national interests of the United States'' means serious adverse effects on the international economic activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations.

H.R.2764, the Consolidated Appropriations Act of 2008, was also signed into law by President George Bush in December 26, 2007 and became Public Law No: 110-161. It includes the following:

Anti Kleptocracy
SEC. 699L. (a) In furtherance of the National Strategy to Internationalize Efforts Against Kleptocracy and Presidential Proclamation 7750, the Secretary of State shall compile and maintain a list of officials of foreign governments and their immediate family members who the Secretary determines there is credible evidence to believe have been involved in corruption relating to the extraction of natural resources in their countries.

(b) Any individual on the list submitted under subsection (a) shall be ineligible for admission to the United States.

(c) The Secretary may waive the application of subsection (a) if the Secretary determines that admission to the United States is necessary to attend the United Nations or to further United States law enforcement objectives, or that the circumstances which caused the individual to be included on the list have changed sufficiently to justify the removal of the individual from the list.

(d) Not later than 90 days after enactment of this Act and 180 days thereafter, the Secretary of State shall submit a report, in classified form if necessary, to the Committees on Appropriations describing the evidence considered in determining involvement pursuant to subsection (a).

So that’s two -- a federal law and a presidential proclamation that bans corrupt foreign officials from receiving visas to visit the United States. The NYT has a Justice Department memorandum and a presentation prepared by Immigration and Customs Enforcement agents outline specific accusations against Mr. Obiang and his associates. The documents were originally obtained by Global Witness, a British human rights group, and neither the Justice Department nor ICE would confirm its authenticity.

Read the 40-page memo from the Criminal Division of DOJ and the ICE presentation here

This news is actually not really new. Back in November 2006, The Guardian reported that “Global Witness wants the US government to invoke a proclamation by President Bush nearly three years ago that bars corrupt foreign officials from entering the US and allows their assets to be seized.” The report further states that “Washington is unlikely to move against Mr Obiang when it was so welcoming of his father only last April. The US secretary of state, Condoleezza Rice, called President Obiang a "good friend" even though her own department's annual human rights report said officials in Equatorial Guinea use torture.”

Times Online reported “Playboy waits for his African throne” in September 3, 2006.  The story is apparently a subject of a legal complaint.

This time around, there are documents from DOJ and ICE. Although they may be unauthenticated, they are damning in the story they tell of plunder and kleptocracy.  That made this news again.  

This won’t be a headache for one single visa officer, of course.  If this is going to be a headache, it’ll be one that’ll stretch from Foggy Bottom to Pennsylvania Avenue. 

Alberto M. Fernandez,  President Obama’s nominee to be the next ambassador to Equatorial Guinea had his confirmation hearing at the SFRC not too long ago. During that hearing, he pointed out that “with over $12 billion in energy interests and 600 to 700 Americans in country at any given time, the United States has clear economic and security interests in Equatorial Guinea.”   

This reminds me of Ferdinand Marcos, listed by Transparency International as the #2 top kleptocrat of the late 20th century. Raymond Bonner in “Waltzing with a Dictator,” writes about the Marcoses and the making of American foreign policy; a policy that was then solidly tied to the US bases in that country. We supported that conjugal dictatorship for twenty years.  In the multiple coups that came in the aftermath of the Marcos downfall, Washington threatened to cut off aid to the Philippines. Bonner cited a former Vice President of the Philippines as saying that the United States will “deal with whomever is in the saddle. That’s a fact. They can’t get out of that.”

It seems to me that every third rate dictator from any country where the United States has clear economic and security interests can still use the same “saddle” argument and expect to get away with it.  

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