By Jesse Van Genugten

Marines from Marine Barracks Washington carry one of the flag-draped transfer cases of the remains of U.S. Ambassador to Libya, Chris Stevens, and three other Americans that were killed in an attack this week in Benghazi, Libya, during a dignified transfer of remains ceremony at Joint Base Andrews, Md., Sept. 14. Notable attendees to the event were the president of the United States, Barack Obama, U.S. Secretary of State Hillary Clinton, U.S. senator John McCain and Gen. Joseph Dunford, assistant commandant of the Marine Corps.

On the morning of October 2, 2017, silent observers and interested parties sit quietly in wait of one of the most anticipated trials of the year. At promptly 9:00 AM we all rise as Judge Christopher Cooper opens the doors connecting his chambers to the courtroom and takes his seat in front of the large gold emblem of the U.S. District Court of the District of Columbia. Soon thereafter, flanked by several U.S. marshals, the Defendant Ahmed Abu Khatallah walks to his place at the defense counsel’s table and inserts his headphones for translation.  And just like that, the trial of the only individual the U.S. Government has charged in relation to the attack in Benghazi more than five years ago begins.

As with all criminal cases, the Government’s prosecuting attorneys are granted the floor first and Assistant U.S. Attorney John Crabb, Jr. walks the jury through the harrowing events of September 11-12, 2012. In charging the defendant with no less than eighteen counts, Crabb crafts his narrative of culpability around the notion that the defendant was the ‘master-mind’ behind the attacks. In strong terms, he condemns Khatallah’s alleged anti-American rhetoric in the months preceding the attack and urges the jury to assess the defendant’s views as motivation for providing material support and resources to the perpetrators.  

The largest hurdle the Government must jump over to hear the jury foreman utter the single word ‘guilty’ at the end of the trial arises from the fact that the defendant did not himself set fire to Ambassador Stevens’ residence in Benghazi nor fire the mortars that killed two CIA operatives. According to testimony during the first week of trial, Khatallah was present at the compound during the attack, but the Government’s case must rest on the Defendant’s criminal association, as former head of a militia group present in Benghazi following Qaddafi’s downfall, with the individuals that committed the attack. In essence, the prosecution claims Khatallah set in motion the events that took the lives of four Americans.

The defense counsel’s theory of the case strikes quite a different note, however. Attorney Jeffrey Robinson presents Khatallah as a man who was simply at the wrong place at the wrong time. There is undisputed video evidence that the defendant was present at the U.S. diplomatic compound, yet Robinson wants the jury to understand that there exists nothing to suggest Khatallah was in fact the master-mind of the attacks. Like most effective trial lawyers, Robinson crafts a specific narrative throughout his opening statement. His narrative posits that the government demands justice be doled out to those to blame for the tragedy, and the presence of the defendant in U.S. custody, as the only one, provides an opportunity to scapegoat him for that exact purpose.

The trial is expected to last 5-6 weeks. As Mr. Khatallah is the last – and only – defendant associated with the Benghazi attack haled into court in the U.S., the outcome of this trial could determine whether the nation can close this bloody chapter in its diplomatic history and begin healing. In order to do so, however, the jury must determine that the defendant has not simply been targeted by the U.S. outside of the bounds of the judicial system as a means of achieving closure at the cost of Mr. Khatallah’s freedom.
The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement.
By Alexandra Moffitt

This week, a fourth round of negotiations begin in Ottawa as the United States, Canada, and Mexico meet to renegotiate the North American Free Trade Agreement (NAFTA). NAFTA covers issues of customs, government procurement, and intellectual property rights, among others. Millions of Americans depend on NAFTA every day directly and indirectly. On October 5th, the Atlantic Council released a report entitled “What if NAFTA ended? The Imperative of a Successful Renegotiations” and held an event on the topic. Following keynote remarks from Representative Will Hurd and the Honorable Bill Zoellick, the drafters of the Atlantic Council report and Mr. Zoellick held a roundtable discussion of the effects of NAFTA and the importance of maintaining the agreement. The atmosphere framing the discussion are President Trump’s anti-NAFTA remarks in recent months.

In his keynote, Congressman Will Hurd, a Member of the U.S. House of Representatives from Texas, said, “sometimes we forget to talk about things we take for granted.” He stressed that NAFTA created North American competitiveness in the world, and that a lot of Americans do not know that Mexican companies create jobs in the U.S. He underscored the importance of keeping NAFTA for the economic benefits.

Former U.S. Trade Representative Bill Zoellick indicated that there were serious risks and huge implications if NAFTA were lost. NAFTA is a continental base for the 21st century, which connects three democracies and 500 million people. NAFTA allows the three countries to better compete in the global system. Zoellick said, “bilateral trade deficits are negative trade income” to President Trump, which Trump equates to losing.  Zoellick called this “economic nonsense.” NAFTA negotiators are trying to push other countries to open their markets, and remove exemptions, while removing obligations from the organization.    

After Mr. Zoellick’s remarks, the event transformed into a panel discussion of the NAFTA renegotiations with Phil Levi, Daniel Schwanen, and Javier Mancera serving as experts for the United States, Canada, and Mexico respectively. Each of the three drafted sections of “What if NAFTA ended? The Imperative of a Successful Renegotiations.” Phil Levi said there is a lot of uncertainty surrounding NAFTA. After President Trump’s Executive Order on NAFTA, businesses and agriculture came out against it. Mr. Levi cautioned that the most difficult issues in the NAFTA renegotiation have not been discussed yet.

Javier Mancera indicated that Mexico is looking to add new chapters rather than renegotiating previously decided ones. Because Chapters 11 and 19 of NAFTA each provide for a private right of action pursuant to violations, these chapters are immensely important to Mexico. Mr. Mancera mused that it was surprising that American Republicans would want to remove that clause. Daniel Schwanen stressed that Canadians have a consensus that trade helps the country. This feeling of goodwill towards international trade buoys Canada’s stance on NAFTA.

The most captivating moment of the discussion came at the end. Panelists were asked what percentage they gave that President would pull out of NAFTA. The panelists gave their percentages as 50%, 50%, 40%, and more than 50%. These percentages from experts in the field offer a chilling picture for the future of NAFTA. North America’s competitiveness in global trade are at a turning point. Will President Trump jeopardize North America’s status in the world?
By Trevor Schmitt

On October 4-6th, 2017, The George Washington University Law School hosted the 3rd annual Privacy + Security Forum. The event, organized by GW Law’s Daniel Solove and Berkeley’s Paul Schwartz, is a veritable who’s who of the global privacy and data protection law landscape with hundreds of speakers addressing a range of topics. As with any privacy and data protection event held in the last five years, the General Data Protection Regulation (“GDPR”) was a primary focus of panel discussions.

For those unfamiliar with the massive European Union (“EU”) regulation, the GDPR is a privacy and data protection law going into effect May, 2018. As a replacement for the EU’s current data protection law, the GDPR regulates the collection, use, and storage of personal information related to individuals in the EU. Key to this regulation is its inclusion of non-EU organizations that offer goods or services to individuals in the EU. This means that organization with any identifiable information related to individuals in the EU should be worried about the GDPR. And with fines up to €20 million or 4 percent of global annual turnover (whichever is higher) for non-compliance, that concern seems justified.

The event continued many of the ongoing conversations relating to issues involved in private sector efforts toward compliance. But that’s not all. Among these issues several overarching themes rose above the normal fray of navigating technical GDPR compliance. Those charged with conforming to the GDPR should be aware of these emerging perspectives: 

“Do what you say. Say what you do. Be able to prove it.” This quote, brought to light by Constantine Karbaliotis, exemplifies the need for entities regulated by the GDPR to provide extensive documentation of their compliance efforts. Doing the right thing is great. But show your work. Not being able to prove compliance with the GDPR is just as damaging as not being compliant at all.

The GDPR is not going away. May 2018 marks the beginning—not the end—of GDPR compliance. The regulation contains a myriad of requirements associated with individual personal information that fundamentally changes how technology will operate. These include the right to erasure (to have one’s data deleted from an entire system), data portability (to move data from one service to another), and privacy by design (keeping privacy involved in every step of engineering data systems) to name a few. Many organizations will need to overhaul their systems to become compliant. These provisions, as well as others contained in the GDPR, promise a transformation of how technology will handle personal data on a global scale.

The most obvious nails will be hammered first. The governmental organizations (Data Protection Authorities) charged with GDPR enforcement have limited resources. They cannot investigate every organization who handles EU personal data. So unless an organization falls into the spotlight realm of GAFA (Google, Apple, Facebook, Amazon), chances are it will not be an initial target of investigation. This leeway, however, only goes so far. Outdated privacy policies, overt non-compliance indicators, and massive data breaches will raise flags to regulators that an organization may not be compliant.

Brexit might leave the UK out in the cold. As of March 29th, 2019, the United Kingdom (“UK”) will no longer be part of the EU. This means that the UK will become a third country according the the GDPR. Under the GDPR, third countries must undergo a verification process to determine if municipal data laws provide adequate protection for handling personal data related to individuals in the EU. And while lawmakers have announced their intention to adopt an almost exact copy of GDPR regulations, the former EU State must still apply for adequacy following its official exit from the EU. These means that, at least for a time, the UK will not have free flowing data from the EU.

Despite these additional perspectives on the global concerns over GDPR compliance, much is still unknown about how the regulation will impact organizations at scale. What is clear, however, is that organizations who want continued access to EU markets must be compliant or face potentially debilitating fines. These issues will continue to be explored in the Privacy + Security Forum’s internationally-focused sister event early next year. 
By Anna Jarman


On September 25, 2017, Georgetown University Law Center hosted the 14th Annual Immigration Law and Policy Conference in partnership with the Migration Policy Institute (MPI) and Catholic Legal Immigration Network, Inc.  The conference addressed immigration policy changes under the Trump administration, including the crack-down on “sanctuary cities.” 

Muzzafar Chishti, director of MPI’s office in New York, moderated a discussion on sanctuary cities and local law enforcement’s role in immigration with Hiroshi Motomura, a law professor at the University of California, Los Angeles, School of Law; Daron Hall, the Sheriff of Davidson County, Tennessee; and J. Thomas Manger, the Chief of Police of Montgomery County, Maryland.

The Executive Order

Five days after taking office, President Trump issued an executive order blocking federal funding to “sanctuary cities” -- municipalities which restrict cooperation between local law enforcement and federal immigration agents.

President Trump’s stance on sanctuary cities fits neatly inside his “America First” foreign policy, which he campaigned on and which has guided his administration since he took office.  President Trump promised that he would put American workers first in all aspects of policy, whether that was negotiating favorable trade agreements or ensuring that illegal immigrants did not deprive American citizens of jobs, drain government benefits, or threaten public safety.

Many lawmakers, including President Trump, believe sanctuary cities threaten public safety by allowing criminals who could have been deported to go free and commit future crimes.  Local law enforcement officials counter that sanctuary measures are necessary to promote trust between illegal immigrants and police.

Sanctuary Cities: Testing Issues of Federalism

Motomura said this standoff over sanctuary cities between federal law and local officials is “testing issues of federalism.”  Immigration was, until recently, a federal issue.  However, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act began to involve state and local governments in immigration enforcement, particularly through section 287(g) of the Act, which deputizes local law enforcement personnel to enforce federal immigration law. 

Some state and local governments have also passed laws on immigration.  For instance, Arizona passed S.B. 1070 which made immigration offenses state crimes and empowered the police to make warrantless arrests of aliens.  In Arizona v. United States, the Supreme Court held these provisions of S.B. 1070 preempted by federal law. 

Motomura explained that while Arizona reduced local governments’ power in immigration enforcement, it did not address the 10th Amendment issues of coercion and deputizing local police that sanctuary cities implicate.  The Supreme Court has previously held in Printz v. United States that the federal government may not order local officials to enforce federal law.  Additionally, National Federation of Independent Business v. Sebelius, concerning the Affordable Care Act, held that the government cannot use the threat of large funding cuts to “coerce” states into adopting federally demanded policies.  Given the importance of these issues, Motomura expects the federal government to weigh in on these issues as they continue to pressure sanctuary cities.

Practical Issues of Enforcement: Local Law Enforcement’s Perspective

The lack of clarity surrounding law enforcement’s role in immigration enforcement presents a great challenge to local law enforcement agencies, which find themselves embroiled in a divisive political issue and faced with difficult decisions about how best to police their communities.

Sheriff Hall does not think immigration should be something he should be doing, but “since the federal government doesn’t do a good job, [he has] to step in.”  Under his leadership, Davidson County eventually left the controversial 287(g) program.  The program that replaced it, Secure Communities, does not deputize local police but instead requires participating jails to submit arrestee’s fingerprints to the U.S. Immigration and Customs Enforcement’s (ICE) immigration database.  The problem with this approach, Sheriff Hall said, is that an arrestee’s fingerprints will be identifiable only if he has already had an encounter with ICE.  This means that an undocumented immigrant could have committed twenty crimes but remain unknown to ICE.

For both Sheriff Hall and Chief Manger, the challenge is finding a balance between public safety and limiting the harmful effects of deportations on individuals and the community.  Chief Manger worries about the danger created when a portion of the population fears the police and won’t come forward to report crimes or act as witnesses.  In its attempt to strike the right balance, Montgomery County does not comply when ICE asks the county jail to detain an illegal immigrant until they can be taken into ICE custody, but does respond when ICE inquires about individuals held in the county jail.  
By Cameron Peek
Photo: Pixabay/R. Berns, Creative Commons License

In her speech from Florence, Italy on September 22, Prime Minister Theresa May of the United Kingdom (UK) delivered words of hope and optimism, but little substance, for progressing the stalled negotiations regarding the UK’s exit from the European Union (EU) in 2019. “When we come together in the spirit of ambition and innovation…open[ing] our minds to new thinking and new possibilities, we can forge a better, brighter future for all our peoples,” said May, suggesting that the new relationship to be forged is just a matter of thinking creatively. 

The fruit of May’s creative thinking was her proposition of a two-year post-Brexit transition period, during which the UK would still abide by EU regulations and enjoy market access while the final economic relationship continues to be negotiated. Under such an arrangement, May suggested the UK and EU could avoid forcing stakeholders to adapt to a set of interim rules while the final relationship is hashed out. The EU’s chief Brexit negotiator, 
Michel Barnierexpressed hope that May’s proposal would allow room for negotiations to proceed, so long as UK negotiators understood that during such time there would be no wiggling out of any EU regulatory, budgetary, supervisory, judicial or enforcement instruments and structures.

Other EU leaders were less satisfied with May’s general lack of concreteness. “It is not a matter of creativity,” 
retorted German MEP Ingeborg Grässle, speaking specifically about the future UK-EU trade relationship, “It is a matter of logic and respect of basic EU law.” In response to May’s vague assurances that the UK legal system would continue to protect the rights of EU citizens living in the UK and that the UK was hopeful in finding a no-physical-barrier solution along the Irish-UK border, French President Emmanuel Macron simply stated, “Before we move forward, we wish to clarify the issue of the regulation of European citizens, the financial terms of the exit and the question of Ireland.”

Perhaps the best hope for progress came from the conspicuous absence of the hardline Brexiteer mantra that “no deal for Britain is better than a bad deal for Britain.” Originally put forth in her January 
speech at London’s Lancaster House, May’s departure from this rhetoric indicates she may intend to step away from the inflexible position that contributed to stalling negotiations thus far and towards a more realistic recognition that a hard Brexit would be catastrophic for the UK economy. Still, while this softer approach may open doors towards advancing negotiations with the EU, it is equally likely to cause problems for May back at home. There, the uncompromising faction of May’s Conservative party, who according to EU critics insist the UK be allowed to “have its cake and eat it too,” await May at the Conservative conference in Manchester being held from October 1-4. There, it waits to be seen whether May will stay the course in her optimistic reliance on “creative thinking.”
By Nico Nalbantian

On September 11th, 2017, Georgetown University Law Center’s Institute of International Economic Law (IIEL) hosted former Deputy Director of the Central Intelligence Agency David S. Cohen. Cohen discussed Russia, Venezuela and North Korean sanctions in an interview with IIEL Faculty Director Chris Brummer. Described by some in the Obama administration as a “financial Batman”, Cohen focused much of his talk on the evolution of sanctions policy between the Obama and Trump administrations.

The Goal of Sanctions

Cohen began the event by highlighting the purpose of sanctions. Ultimately, sanctions are a diplomatic tool for coercing a country into one of two things: (i) target the behavior of a country and change the targeted behavior, or (ii) disable what that country is doing. The case Cohen shared from the Obama administration was Iran. Iran had been causing global concern due to its alleged nuclear weapons program. The sanctions imposed on Iran were part of a “dual track strategy”. Should Iran continue down its path of nuclear armament, then sanctions would be ratcheted up and cut more deeply into the Iranian economy. Alternatively, should Iran be willing to negotiate and step-away from its nuclear program, then sanctions would be lifted and Iran could “return to the fold” of the international marketplace.

Cohen’s dual track analogy contrasts a common misunderstanding of how sanctions should be used. Sanctions are effective because they apply pressure on a country while simultaneously offering an opportunity to relieve that pressure. Sanctions applied on a country simply for the sake of harm produce no results beyond the harm itself caused to the target country and the host country for bearing the economic cost of the sanction. Another example of an appropriate use of sanctions are, at least initially, the sanctions imposed by the United States and the EU against Russia. The sanctions on Russia are in place to encourage Russian withdrawal from Ukraine. Like Iran, should Russia continue illegal aggression against Ukraine sanctions should be increased and cut deeper into the Russian economy. Alternatively, should Russia begin talks and withdrawal from Ukraine, then the sanctions imposed on Russia by the United States and the EU should be lifted.

Trump Administration Complications

Having set out the theoretical underpinnings of the Trump administration, Cohen explored how the new administration has evolved its sanctions policy and some of their challenges going forward. The first digression is the disagreement between Congress and the White House over Russia sanctions. Of course, Congress has an important role in the sanctions process, but Congress’s moves were far more prescriptive than in the past. Previously, Congress would defer to the President or the Treasury Secretary on the lifting and imposition of sanctions to complement the executive’s diplomatic efforts. With the Russia sanctions legislation, some sanctions have been effectively locked into place in such a manner that it is no longer an effective tool at the disposal of the administration. Cohen conceded that Congress had legitimate concerns over the White House’s commitment on punishing Russia for its invasion of Ukraine. However, time will tell if sanctions will lose the flexibility and nimbleness that makes them such an effective foreign policy tool.

The Trump administration’s most important challenge will be establishing a North Korean sanctions regime. Cohen argued that it was possible for the United States, in cooperation with China, to establish an effective sanctions regime on North Korea. North Korea needs the ability to sell its arms, labor, and textiles to earn foreign currency around the world. All those transactions are vulnerable to the secondary sanctions that were effective against Iran. Secondary sanctions would be cutting off any company that does business with North Korea from the US economy. The challenge for the Trump administration is, unlike Iran, North Korea does over 90% of its trade with China. Therefore, any effective sanctions against China North Korea would likely rely on effective communication with the Chinese. Unfortunately, the Trump administration’s seeming desire to reimpose sanctions on Iran due simply to the desire to punish them does not bode well for an effective and dynamic sanctions policy.

Should readers wish to view David Cohen’s talk in full, an online recording can be found here.
By Dr. Derek Fincham*

Looters at Iraqi site of Isin, May 2003.
Photo: U.S. Dept. of Defense

On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments.  The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.

The final text of the draft Convention has, at the time of writing, not been made public. I was able to have a look at a nearly-finished version of the text at a meeting of international legal experts at a Conference at IMT in Lucca earlier in 2017. One of the most outstanding aspects of the draft Convention is its focus on regulating all levels of the trade in cultural objects, including looters, traffickers, and end-of-the-chain art sellers and buyers. This encompassing approach will lead – I suspect – to better effective policing of the illicit trade in cultural objects and will serve to protect and aid the good actors in the art trade who are abiding by the law but have been suffering due to the unfair competition provided by illicit traffickers.

This Convention, which has been referred to as both the Nicosia agreement, and the Blood Antiquities Convention joins a growing array of international instruments that deal with cultural heritage. Those include the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which directed its provisions at safeguarding art and heritage during armed conflict. The subsequent 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Illicit Cultural Property served to orient public international law to the problem of illicit cultural property and raised the profile of the problem of the illicit trade in works of art and the destruction and looting of cultural heritage. The 1995 UNIDROIT Convention worked to craft a model set of rules for private law amongst buyers and sellers of works of art and antiquities which may be illicit.
The Council of Europe’s new Convention emerges in this context to carry forward the lessons of those Conventions, to offer solutions to the problem of the illicit trade in antiquities—a problem which is diffuse, varied, and requires a cohesive regulatory response.

Controlling the Exportation of Cultural Objects
One particularly useful aspect of the Draft Convention is the prohibition on Export, distinguishing it from a similar, problematic aspect of the European Council Regulation. One of the flaws with the European Council Regulation on the export of cultural goods is its different treatment of regulation of the trade in cultural objects from Member States and other non-member states or third countries. Article 2(2) requires Member States to check whether goods that have come from another Member State were moved from one Member State to another in a way that is “lawful and definitive.” Due to some technical differences in language, the current Council Regulation prevents Member States from having the same checks for objects from Member States as from non-Member States which may be non-EU in origin because Article 2 does not include this “lawful and definitive” language from its scope. Article 5 of the Draft Convention effectively avoids any of this difficulty. I read the draft Convention then to mean that the Convention erects safeguards to protect against theft, illegal excavation, and illegal export of all cultural objects, irrespective of whether the object was illegally exported from a Member State or some other third country.

Measures at the domestic and international levels
Another noteworthy aspect of the draft Convention are Articles which erect concrete measures to establish inventories which are publicly accessible; introduce import and export procedures subject to specific certificates; to establish records of transactions; and to promote consultation and information across State boundaries. These measures – if properly implemented and funded – have an important and critical function which will do a great deal to make the efforts to stem the trade in illicit cultural property more effective. It is my hope that these procedures would allow the investigation into whether a work of art which has travelled through a number of individual States was properly given an export and import certificate in all of these individual states. And if not, a proper investigation and penalty regime could be erected which would serve to effectively disincentivize the illicit transfer of cultural objects across State borders. By erecting a system by which investigators can check the various exports of an object, it would be possible to both trace an object back ideally to its nation of origin, or failing that, to allow an investigator to use the export violations which have potentially occurred in transit states to secure a successful investigation, resulting either in the return of the object or in the prosecution of culpable individuals.

The merits of any multilateral Convention such as this will always be dependent on the political will and the resources devoted to its implementation. Given the challenges facing the world’s cultural heritage, both in terms of intentional destruction, and the looting of sites to finance illegal activity, the moment is now for a strong Criminal Convention. Its renewed emphasis on regulating exports takes account of the multinational character of the international trade in cultural heritage, its emphasis on information sharing and collaboration can effectively combat the opaque nature of certain aspects of the art trade, and will serve to work around any deficiencies present in the domestic law of other third party nations. The draft convention comes at a dangerous moment for so much of the world’s cultural heritage, and I am optimistic about its capacity to meet this challenge head-on.

*Dr. Fincham writes about the illicit trade in cultural property, he teaches writing, art law, and admiralty law at South Texas College of Law Houston. He regularly blogs at