Only bribe-payers can be prosecuted under the Foreign Corrupt Practices Act; bribe-takers are excluded. Congress wrote the FCPA that way because it believed “the efforts expended in resolving the diplomatic, jurisdictional, and enforcement difficulties that would arise upon the prosecution of foreign officials was not worth the minimal deterrent value of such prosecutions.” U.S. v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam).
That inability to pursue, prosecute and punish corrupt foreign officials under the FCPA became a focus of the prior administration. In January 2004, President Bush took action by signing an extraordinary measure called Proclamation 7750. It suspended entry into the United States of past and present foreign officials whose corrupt practices have had “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.” Also barred from entry are the foreign officials’ spouses, children, and dependents who benefited from the corruption.
It’s left to the Secretary of State alone to implement and administer Proclamation 7750. The State Department hasn’t revealed how it compiles the list of banned kleptocrats and family members or who’s on it. Nor has anyone said how long the bans last, whether there’s any kind of hearing or chance to present evidence, or how someone on the list might have their name removed.
All that secrecy has caused some discomfort and frustration, even among reformers outside the U.S. As one Kenyan commentary this week said,
We wish it were clear, however, just what the U.S. has done and why. Proclamation 7750 (better known as the Kleptocracy Initiative travel ban), issued by George W Bush in January 2004, has been used to prohibit corrupt officials from entering the U.S. At least 13 Kenyan public officials and their families are believed to have had travel restrictions placed on them under this directive. However, who they are and what they did remains a matter of conjecture. . . [W]hat use are anonymous corruption bans apart from exerting private pressure?
That’s a good question. And we have questions of our own. Is Proclamation 7750 the right remedy against corrupt foreign officials? Are secret, extra-judicial actions by the State Department legitimate and useful weapons in the battle against international public corruption? Are there other and better ways to pursue, prosecute and punish kleptocrats?
Let’s continue this discussion in Part II.