A federal district judge in the Southern District of New York yesterday granted a preliminary injunction in a case brought by four dual-national U.S. law professors and the Open Society Justice Initiative challenging aspects of the Trump administration’s sanctions against International Criminal Court (ICC) personnel and anyone who has “materially assisted” designated persons.
The plaintiffs’ claims were twofold. First, the plaintiffs were concerned that their interactions with the ICC and the Office of the Prosecutor in the form of, for example, amicus briefs, advice, or trainings, could be considered prohibited transactions with ICC Prosecutor Fatou Bensouda and a senior member of the prosecution office, Phakiso Mochochoko, who are the two designees under the sanctions program. If such activities were prohibited transactions, the plaintiffs could be fined or prosecuted.
Second, the plaintiffs were concerned that they could be designated for sanctions themselves. The sanctions program provides for the designation of persons and entities that have “materially assisted” designated persons. Although Executive Order 13928, which established the sanctions program, limits targets to “foreign persons,” under some sanctions regimes, U.S. citizens who are dual nationals are considered “foreign persons” and thus subject to designation.
“We fear we are at special risk,” some of the plaintiffs wrote at Just Security when they filed the suit in October, “that our own property may be frozen, and even that we may be criminally prosecuted for work we do in support of the prosecutor’s efforts to bring perpetrators of atrocities to justice.”
Although the plaintiffs were not successful on every claim, the preliminary injunction covered a good deal of the remedy they sought. As a result of the order, the government is prohibited from fining or prosecuting the plaintiffs for engaging in the conduct they had ceased as a result of the sanctions regime, i.e., providing advice, attending meetings, submitting amicus briefs, etc.
The court granted the preliminary injunction on the basis that plaintiffs were likely to succeed on the merits of their First Amendment free speech claim. The court held that because, under the terms of the sanctions program, speech in support of Bensouda or Mochochoko is prohibited, but speech against them is not, the regulations are a content-based restriction on free speech. As such, to be constitutional, the regulation must meet the strict scrutiny test of being narrowly tailored to a compelling government interest.
The court found no reason to question the government’s stated interest in “protecting the personnel of the United States and its allies from investigation, arrest, detention, and prosecution by the ICC without the consent of the United States or its allies.” However, the court held that the restrictions on speech were not narrowly tailored to this interest, as they prohibited speech that had nothing to do with that stated interest. For instance, the sanctions prohibited speech concerning cases and investigations before the ICC that did not implicate Americans or their allies.
Plaintiffs’ other claims, the court held, were insufficiently factually developed at this stage to be considered. These included plaintiffs’ arguments that they might be designated for sanction themselves, that certain terms in the sanctions were unconstitutionally vague, and that the government had exceeded its powers under the International Emergency Economic Powers Act (IEEPA). (The Brennan Center submitted an amicus brief in support of plaintiffs regarding IEEPA).
The litigation on the underlying claims in the case is ongoing, with the government’s response to the plaintiffs’ complaint due Jan. 19. The next day at noon, Joe Biden becomes president. Many hope that shortly thereafter his administration will obviate the need for further litigation and remedy this misguided abuse of emergency powers by rescinding the executive order establishing the sanctions program.