A Response to CarrieLyn Guymon by Paul B. Dean

[Paul B. Dean is Attorney-Adviser, Office of the Legal Adviser, at the U.S. Department of State]

Thanks to Opinio Juris and VJIL for hosting this discussion and
thanks of course to Professor Guymon for raising this interesting topic.  I’m happy to provide what I hope will be a constructive response.  I
must emphasize that any views expressed herein are my own and not
necessarily those of the State Department or the U.S. Government.  Professor Guymon touches on a host of interesting topics in her article
and blog post, including whether the problem of WMD proliferation can be
appropriately addressed by targeted “emergency” sanctions based on IEEPA
authorities, how best to “multilateralize” these targeted sanctions, and
whether the U.S. asset blocking program under E.O. 13382 raises Due
Process concerns. 

Rather than attempt a critique, I’d simply like to highlight some
aspects of these topics that I think could benefit from further thought.  Professor Guymon concludes her post by noting that the executive’s
”judicious use” of E.O. 13382 adequately addresses any concern that an
IEEPA national emergency might continue indefinitely.  I would like to
see this developed a bit more.  For example, while “judicious use” might
ameliorate some policy concerns, I wonder if Professor Guymon is
introducing a legal argument that the use of IEEPA authority in such
circumstances might be dependent on someone (the executive? the
Congress? the courts?) concluding that its use was “judicious.” 

Professor Guymon also argues that “Due Process is not seriously
infringed by targeted sanctions and it cannot be absolute in the face of
the grave threat posed by proliferation.”  I’d like to see that
developed a bit more too.  In her article, Professor Guymon points out
that the reality of the nonproliferation challenge is that – in order to
use E.O. 13382 (and similar E.O.s) effectively – the executive must
sometimes block assets without prior notice and rely on classified
information that might not be available to the blocked entity in
subsequent litigation.  Further, entities sanctioned under these
authorities are almost uniformly non-citizens.  This presents
interesting questions regarding the applicability and scope of
Constitutional Due Process protections.  In other words, what process
(if any) is due when the U.S. has classified information indicating that
Foreign Company X is facilitating the transfer of missile technology to
a country of proliferation concern, such as Iran?  The cases arising under E.O. 13224 – which allows for asset blocking in
the terrorism context – may be instructive, and courts usually accord a
high degree of deference to agencies in asset blocking cases.  It may
also be useful to study the EU’s experience with similar targeted
sanctions programs. 

I’d also like to hear others’ views on these subjects, which will likely
remain in sharp focus as the U.S. develops flexible tools to combat
increasingly transnational, non-governmental proliferation patterns, as
typified in the black market nuclear network of A.Q. Khan. 

I think Professor Guymon’s article provides a very useful starting point
for an important and interesting discussion (certainly important for
everyone; interesting, at least, to me) about our legal tools for
addressing the problem of WMD proliferation.