Friday, June 08, 2007

You keep using that word "democracy" ...


America: Land of the ... not so fast, buddy.
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13 comments:

Ti-Guy said...

You know, this may be a trivial matter, but it goes to the heart of how incoherent American justice and the American legal system is. That law is plainly unenforceable, but even more, it suggests a complete ignorance of the reality in which laws exist; they only have meaning within a clearly delimited jurisdiction. You cannot, in any conceivable way, make a legal determination of someone's behaviour when you are completely outside of the jurisdiction in question.

I'm sure American justice recognises that on some level, but nonetheless...and idiotic law like that is allowed to stand...though, possibly because it's been to trivial to challenge constitutionally.

I can see this law applying to people who remain immune from the laws of the jurisdiction in which they find themselves, and in which the immunity is agreed to by that jurisdiction, but otherwise, this is just nonsense. Thinking about it another way as well, it also suggests that Americans would be subject to laws that constrain them to behave in a manner that is illegal within the jurisdiction they find themselves; a concept the rest of us should find disturbing.

8:31 AM
Anonymous said...

When I was in the manufacturing business I received a letter from supplier, a Swiss company who owned a US subsidiary. They were asking me to confirm that did not do business with Cuba.

I told them no, but if I had the opportunity to do so I most surely would. In particular, I pointed out to them that the very product they supplied me with was the one product that I could conceive of importing from Cuba. And I also told them that if I understood Canadian law correctly, they were attempting to get me to engage in illegal activities.

They wrote back with a letter of apology.

10:39 AM
Anonymous said...

Ti-Guy, of course it's unenforcible, and its ridiculous to think Bush can legislate a prohibition on smoking cigars outside the United States.

So, why don't you and CC apply a little common sense here and make the obvious conclusion that this story is total BS? One, Bush cannot legislate (that's for Congress to do). Two, the Constitution doesn't reach into foreign jurisdictions. So, not only is it unenforcible on its face, it is also unconstitutional. Even Congress couldn't pass such a law.

You people would believe anything if it reflects badly on America. Unfortunately, it makes you laughably gullible. Ask yourselves this: Is is possible the editorialist garbled something he read?

So let's try to find the genesis of this controversy. Shall we? In a speech to the UN a Cuban foreign minster said, "Citizens and permanent residents of the United States cannot legally buy products of Cuban origin, including tobacco and alcohol in a third country, even for their own personal use abroad." He was referring to a new (Sept. 2004) regulation that prohibited Americans from bring even personal use Cuban cigars into the US. Prior to this citizens were allowed to buy Cuban cigars (say in Europe) and bring them into the US if they were solely for his personal use. Now you can't. The rule does not say Americans cannot smoke them abroad. Either the Cuban Foreign minister was inaccurately translated or quoted, he was being misleading with his placement of the word "abroad" at the end of his sentence, or others were too stupid to realize what he meant.

This story as related is so absurd, I find it hard that anyone, even a newspaper editor from the sticks, would believe it. Canadians are another story altogether, apparently. So much easier though to fantasize that the US is not a democracy, right?

10:55 AM
Anonymous said...

Well, as Emily Litella used to say, "never mind." Apparently the Treasury Department has a different interpretation of the government's regulations (it doesn't mean Treasury is right and Treasury certainly can't enforce it). The same Department that brought you the IRS clearly says you can't but 'em and use 'em even outside the US. Nothing like an absurd rule, but leave it to the IRS to come up with one. Treasury is clearly exceeding what the rule says, which was simply a reversal of the old policy permitting the importation of person use Cuban goods (up to a limit of $100). What dopes.
See: http://www.treasury.gov/offices/enforcement/ofac/programs/legacy/ccigar2.pdf

Thought I knew something, since I enjoy Cuban cigars, but when I a wrong, I am wrong.

11:16 AM
CC said...

Actually, that Treasury explanation is self-contradictory. First, it says you can't smoke 'em if you got 'em, period:

"The question is often asked whether United States citizens or permanent resident aliens of the United States may
legally purchase Cuban origin goods, including tobacco and alcohol products, in a third country for personal use
outside the United States. The answer is no."

But while you'd think that settles it, keep reading:

"The Regulations prohibit persons subject to the jurisdiction of the United States ..."

Ah, now that's not the same thing. Being subject to the jurisdiction of the U.S. would mean something like being stationed at an American military base overseas, or perhaps at a U.S. consulate, for which the U.S. would definitely have the power to enforce that idiocy. Even the first commenter at Ed's site draws this distinction:

"Surely a person outside the United States (except on a military base or in an embassy) is not subject to the jurisdiction of the United States."

So the wording of that regulation is simply nonsense.

11:24 AM
Ti-Guy said...

Anonymous...such are the perils of applying "common sense" (as opposed to looking for additional information) when looking for the truth.

I stand by my first observation, only because the embargo against Cuba is fundamentally incoherent WRT the legal foundations of the American Republic, and requires additional incoherent laws and regulations to maintain.

11:31 AM
The Seer said...

Guys, guys, guys . . .

1. “Democracy” describes the method of selecting the individuals that are given governmental powers. “Democracy” essentially is a process. It affords the citizens of a means of correcting the errors of their governments; it provides no guaranty of rational government.

2. Lets all take a breath here. CC’s informant cites a document with a US Treasury web address. This document, which, aside from the web address, has no indication that it is attributable to a US Government agency, appears to be an informal interpretation of a formal interpretation of an administrative rule. The rule provides:

Sec. 515.204 Importation of and dealings in certain merchandise.

(a) Except as specifically authorized by the Secretary of the Treasury (or any person, agency, or instrumentality designated by him) by means of regulations, rulings, instructions, licenses, or otherwise, no person subject to the jurisdiction of the United States may purchase, transport, import, or otherwise deal in or engage in any transaction
with respect to any merchandise outside the United States if such merchandise:

(1) Is of Cuban origin; or

(2) Is or has been located in or transported from or through Cuba; or

(3) Is made or derived in whole or in part of any article which is

the growth, produce or manufacture of Cuba.

The formal interpretation provides:

§ 515.420 Dealing abroad in Cuban origin commodities.

Section 515.204 prohibits, unless licensed, the importation of commodities of Cuban origin. It also prohibits, unless licensed, persons subject to the jurisdiction of the United States from purchasing, transporting or otherwise dealing in commodities of Cuban origin which are outside the United States.

What we have here is loose bureaucrats volunteering their informal interpretation of a formal interpretation of a duly adopted administrative rule.

In my opinion, the operative term is “commodity.” While the formal regulation contains definitions of terms, the term “commodity” is not defined in the regulation, which means, under standard American rules of statutory construction, that the term “commodity,” as used in the regulation, means what it usually means.

Without doing extensive research, I believe that the term “commodity” or “commodities” means merchandise traded in bulk. While the term can be construed to mean a single article, I do not believe such an interpretation is consistent with the usage in the regulation.

Therefore, in my opinion, neither the regulation itself nor the formal interpretation of the regulation prohibits an American from purchasing a single Cuban cigar, or ever a dozen Cuban cigars, while in Canada. (Bringing them into the US is still unlawful.)

3. The fact that it may not technically be illegal for an American citizen to buy and smoke a Cuban cigar in Canada does not mean that the American cannot face prosecution when he returns to the US. A criminal prosecution would have to be commenced by a US Attorney, and even in the Bush justice department it is not likely that any US Attorney would waste his resources on such a case. But a civil fine could be levied by bureaucrats within the Treasury Department, and litigated administratively within the Department. There is a right to appeal to the US Courts of Appeal, and I predict the citizen would prevail on appeal. But without a Libbey-style defense fund, the costs of litigation probably would be exceed the fine.

4. Ti-guy is right that jurisdiction normally is territorial. However, the US Government successfully has asserted “personal” jurisdiction over the action of its citizens outside the United States under certain circumstances. The most notorious example is the statute that make it unlawful for Americans to travel to foreign countries to molest children. US Courts will convict under these statutes.

5. While I believe this is a case of relatively low level bureaucrats run amuck, I do not advise Americans to scorn these low level bureaucrats. A prosecution by law level bureaucrats could bankrupt them.

12:04 PM
The Seer said...

P. S. Don't tell me you don't have bureaucrats in Canada. I watch Davinci's Inquest on reruns in the US. If DaVinci's Inquest can be believed, and I believe it, Canadian cops are every bit as crazy as American cops. (Actually, the reason Canadian cops are every bit as crazy as American cops is that when American states, such as Pennsylvania, New York , Michigan and virtually all the others, decided to start state-wide, state-level police agencies, they asked the Mounties to come in and show them how to do it and to train the initial cadry of cops. So, tgo be fair, I should say that American cops are every bit as crazy as Canadian cops.)

12:11 PM
Ti-Guy said...

Oh, darn. We've assaulted Seer's patriotism again, which has resulted in the inevitable lengthy explanation of "why things are the way are" in that loony bin to the south (ha ha ha) and why it's the same up here, since...you know, he's watched television. BTW, Canadian cops are not nearly as crazy as American ones. For one thing, we generally don't have guns, so our cops aren't panicked and paranoid when they stop you for a speeding ticket (unlike what I witnessed once when I was stopped in Arizona...God, it was like a SWAT team had descended on poor little me).

Ti-guy is right that jurisdiction normally is territorial.

Actually, I didn't assert that. When you are outside a territorial jurisdiction, a legal order that is not proper to where you are located may still apply, depending on what's been agreed to. Canadian law is generally clear on that; the Canadian government explicitely tells Canadians that their legal status abroad, absent any contracts or treaties, is fundamentally unknown.

I'm not arguing that the US can't enact incoherent laws; just that it does more often than here, for a couple of reasons: our justice system isn't politicised, we have only one criminal code, and Parliament can ask the Supreme Court for a reference on a legal issue to prevent incoherent or "bad" laws from being enacted. Also, our constititution contains an equal rights amendment.

We really do live in a very different legal reality, Seer.

12:51 PM
Anonymous said...

You keep forgetting, Ti-Guy, these are not laws we are talking about here; they are regulations. There's a big difference. Treasury's interpretation of the rule regarding Cuban cigars is open to challenge in the courts and clarification by the legislature.

Of course, it never will be because no law enforcement agent of the federal government of the United States can ever possibly hope to (1) catch a "perpetrator" in the act of smoking a Cuban cigar in Switzerland and (2) have the legal jurisdiction to arrest him in Switzerland and drag him back to the US for prosecution. Nor can the Treasury boob who wrote this interpretation (and, no CC, it was not Bush) ever hope to get the Swiss cops to do anything to enforce this imagined rule.

The rule is a dead letter.

Furthermore, you strain too hard to find a "different legal reality" in the US from Canada. The statement, "Canadian cops are not nearly as crazy as American ones. For one thing, we generally don't have guns, so our cops aren't panicked and paranoid," makes no sense, for example. If what you say is true (that US cops fear armed speeders more than Canadian cops), why does that prove they are "crazy"? Isn't it simply evidence that the cops fear a crazy driver who may me armed? Sounds pretty damned sane to me. As usual, you are letting your anti-Americanism get the better of you.

3:37 PM
Anonymous said...

Oh, and I've dealt with your own version of Treasury agents and their rules in my professional life: the CRA. Believe me you have plenty of wacky bureaucrats working with inane rules, giving stupid interpretations of the law, and acting in all sorts of crazy ways to get the result they want. It's the nature of a bureaucracy, Ti-Guy. You should know that. It has nothing to do with a legal system. It's a result of having a government that is too large with too many people trying to justify their existence.

I am sure Canada has any number of "dead letter" laws and rules on the book. Like dead letters anywhere, they are ignored. "No harm, no foul."

3:50 PM
Ti-Guy said...

You keep forgetting, Ti-Guy, these are not laws we are talking about here; they are regulations.

You're right. I should exercise more restraint and simply ignore whatever bubbles up from "The Loony Bin to the South." It's not worth the time or the intellectual energy to understand clearly, and it distracts from the the work Canadians need to carry out refining our nonetheless superior judicial system.

Oops...how I've done it; I've suggested something outside the US is superior. I await a proper scolding.

10:05 AM
Anonymous said...

Ti-Guy,

No need for scolding. Canadians are known the world over for their smugness and misplaced feelings of superiority stemming from an acute inferiority complex.

I especially love the silly national myths like "we burned down the White House," "we put Canadian flags on our back backs to be treated better when traveling abroad -- and so do Americans," and "we invented the light bulb."

Your myths explain a lot about YOUR national psyche. As for you in particular, Ti-Guy, you long ago went off the deep end and have brought new meaning to the word, "projection."

10:44 AM

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