Huffpost Politics
THE BLOG

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Christopher Brauchli Headshot

Congress Creates a Crime

Posted: Updated:
PUEBLO COCAINE BUST I25
AP File

"The Congress doesn't run -- it waltzes,"
Charles Joseph, to Comte Auguste La Garde-Chambonas (1814)

Congress is not as idle as it may seem. Whereas much of the publicity it is getting suggests it is not getting anything done, that is because the things it has not accomplished tend to be more interesting than the few things a few of its committees have gotten done. The House Judiciary Committee is an example of this. As has been observed here and elsewhere, in July it addressed the vexing problem confronted by peripatetic armed citizens.

Constitutionally armed citizens are confronted by a plethora of state laws covering concealed weapons. Each time they cross a state line bearing concealed weapons they fear they may be in violation of the law of the state they are entering and that fear impinges on their rights to freely travel around the country. To remedy that, in July the House Judiciary Committee passed the National Right-to-carry Reciprocity Act of 2011. If enacted by Congress all rules pertaining to concealed weapons will come from the federal government and not from individual states. The Judiciary Committee has now passed amendments to the criminal code that, if enacted by Congress, will fix a problem that was created by
United States vs. Ivan Lopez-Vanegas et al, a case from the U.S. Court of Appeals for the Eleventh Circuit decided in 2007.

In Lopez the Court reversed the conviction of Mr. Lopez who was convicted of a conspiracy to possess, with the intent to distribute, cocaine. Mr. Lopez and his colleagues were assisting Prince Nayef bin Fawwaz al-Shaalan, the son-in-law of the Saudi Vice Minister of Defense (who is the brother of the former king of Saudi Arabia) by coordinating the purchase of cocaine. Two tons of cocaine were purchased in Colombia and transported on a plane owned by the Saudi royal family to Europe where all but 840 grams was distributed. (The Prince is a wealthy member of the royal Saudi family who owns oil interests in Colombia and Venezuela and the court does not explain why he was selling cocaine.) French authorities seized the 840 grams two weeks after its arrival in France. Following its seizure Mr. Lopez and others were apprehended and tried and in Mr. Lopez's case, convicted.

The extent of Mr. Lopez's activities in the United States consisted of hotel meetings that planned the operation. The cocaine was never in the United States. The government charged Lopez with violating two sections of the United States code that read together make it a crime "to conspire to possess with the intent to distribute a controlled substance, such as cocaine." He was convicted in the trial court but his conviction was reversed on appeal. The court found that since none of his activities involved possessing or distributing cocaine within the United States, code sections relied on did not apply to him. That was the end of the matter until September 2011.

Between the time of the decision and September 2011, Congressman Lamar Smith, the chair of the Judiciary Committee, contemplated the effect of the decision and concluded that it was inimical to the best interests of the United States for a violation of the Controlled Substances Act to apply only if the controlled substance was in the United States. The bill passed by the Committee on October 6 provides that it:

"amends the Controlled Substances Act to clarify that persons who enter into a conspiracy within the United States to possess or traffic illegal controlled substances outside the United States, or engage in conduct within the United States to aid or abet drug trafficking outside the United States, may be criminally prosecuted in the United States..."

The bill was baptized the Drug Trafficking Safe Harbor Elimination Act of 2011 and does not distinguish between controlled substances that are legal in the country where the distribution is to take place and those that are illegal in that country. Thus if someone in the United States enters into negotiations for the purchase and sale of a drug that is legal in the country in which the transaction is taking place, that individual can nonetheless be prosecuted in the United States. The democrats on the committee tried to amend the bill to provide that it only applied if the controlled substance was illegal in both countries. The Republicans who dislike the ever-expanding role of the federal government in the lives of ordinary citizens, preferred to have the amendment apply to as many people as possible.

Commenting on the bill, a civil rights lawyer and author, Harvey Silverglate, said:

"Just when you think you can't get any more cynical, a bill like this comes along. It just sounds like an abomination. [T]here's no intuitive reason for an American to think that planning an activity that's perfectly legal in another country would have an effect on America. . . . [T]his is just an act of shameless cultural and legal imperialism. It's just outrageous."

He's right. Of course it is nice to see that occasionally a Congressional Committee can actually pass legislation, even if it's bad. At least it's not doing nothing.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his Web page here
.