Report

Stuck on a U.S. Government Blacklist?

Call Erich Ferrari, the lawyer who makes a living defending alleged drug kingpins and arms dealers.

One of Erich Ferrari's clients is sitting in a Peruvian jail. Two are alleged associates of a former Liberian strongman. Others are accused of having links to various international drug rings. Ferrari isn't a standard defense attorney, and his clients haven't been formally charged with any crimes. They've instead been put on one of the U.S. government's various blacklists. They've hired Ferrari to get them off.

"I guess I'm the only person in the world who feels bad for the narco-kingpins and the WMD proliferators," he said in a recent interview, speaking on the phone from Los Angeles. He's part of a small cottage industry that has developed around the U.S. government's sanctions program. Ferrari has a four-person firm that helps people -- mostly non-U.S. citizens -- appeal the government's decision to freeze their assets and cut them off from the U.S. financial system. So far, he has succeeded with four of them, and one has been rejected. He has 16 cases pending.

The U.S. government's financial sanctions programs have been credited with bringing Iran to the negotiating table by decimating its economy and driving the value of its currency to record lows. But they're not just used against Tehran. Alleged drug kingpins, associates of deposed war criminals, and supporters of various dictatorships also find themselves on the Treasury Department's target list. The key innovation in these modern sanctions is the ability to target individuals and companies and make it illegal for U.S. banks and companies to interact with them. Putting trade embargoes into place against countries like Cuba hasn't worked, but pressuring specific individuals and companies has. Ferrari is one of a small group of lawyers making a good living relieving that pressure.

Ferrari has an office across the street from the Treasury Department, but he makes his legal arguments through documents, not in person. There's no courtroom for blacklist cases and no judges or juries that can hear his case. Ferrari always asks for a meeting, but he almost never gets one. "In my almost seven years, eight years of doing this, I've been allowed in twice," he said.

Getting a client off one of the blacklists isn't easy. Many blacklist decisions are based on confidential information gathered through the State Department or intelligence agencies, so Ferrari is often not allowed to see the evidence against his clients. The government normally responds to his petitions with news articles, blog posts, or even its initial press releases about the person's alleged crimes. In other words, the Treasury tells people they're guilty by pointing to one of the government's own earlier pronouncements of their guilt. That often leaves lawyers guessing as to what officials are basing their decisions on.

"The biggest problem in getting off the list is knowing the grounds for being placed on the list," said Ron Meltzer, a partner at WilmerHale who has worked on a handful of sanctions petition cases. "It's a Kafkaesque hell because there's no way to understand the parameters or the ground rules or anything."

Lawyers who've worked on these cases say it's a long, difficult process that can take years and cost tens of thousands -- and sometimes millions -- of dollars. There aren't a ton of cases because most people never challenge their designation. The cases are hard to win, and because the clients can't access their money, it can be hard to get paid.

The Treasury Department says people who have stopped doing the activity that got them on the blacklist can send in a petition to have the sanctions lifted. But that doesn't necessarily mean much in practice: Because the petitioners are not U.S. citizens, they're not entitled to the rights of the American justice system, including presumption of innocence, notice of the charges against them, or a trial before their peers.

"Usually we want to see that they admit to the bad behavior," said a Treasury official with the Office of Foreign Assets Control (OFAC). "If the person comes in and continues to deny the bad behavior, the process can be very long."

Douglas McNabb, a lawyer who has worked on some of Ferrari's cases with him, says that the unwritten Treasury rules put attorneys in the difficult position of appealing to the very officials who put their client on the list in the first place.

"You can't successfully argue to OFAC that they screwed up because they won't admit they're wrong, but you can't admit to a federal crime either," McNabb said.

Ferrari's own work routinely brings him to Asia, the Middle East, and Africa to meet his blacklisted clients. The meetings are very different from what lawyers normally see in the United States.

"I've never been held at gunpoint, but there have been meetings I've gone into that have had a lot of security and bodyguards" with guns, he said.

And he did once step into a cheetah cage while visiting a potential client. He was on the way to a meeting in a foreign country -- he wouldn't say which one for fear of identifying the person -- and then he was told that the meeting had been canceled and they were going to the zoo. At the zoo he and his colleague were told to get into the cheetah cage. He wasn't forced in, but very large men strongly made clear that they wanted him in the cage.

"I wasn't sure if they were trying to give us an experience or trying to intimidate us," Ferrari said. "We were very specific that we weren't going into the cheetah cage, and they were like 'No, you must.'"

Ferrari and his colleague obliged, stepped into the cage, and watched the cheetahs move around them as the zookeeper removed the meat the animals had been snacking on. After a few minutes, they were let out and told that they could proceed to see their host. Ferrari had the meeting, but didn't end up getting the job.

"We haven't seen any evidence that this person engaged in any wrongdoing, but the whole trip was strange and intimidating," Ferrari said. Most of his meetings, he added, are far more mundane sessions with people who want to get access to their frozen assets, salvage their reputations, or clear up the stigma that their designation attaches to family members.

"They're typically older businesspeople who have no idea how they got on the list," Ferrari said.

The list is maintained by the Treasury Department, which uses the United States' position as a hub of global finance and its oversight of banks that operate in the United States to make sure those banks don't serve blacklisted companies and people. If the banks don't comply, they are faced with large fines and possible secondary sanctions. No global bank wants to be shut out of the U.S. financial system, so even when the United States is acting alone, the sanctions are usually taken up by foreign banks with connections to the United States.

Adam Szubin, the Treasury Department official in charge of the program, said in 2006, "All financial roads lead to New York." Effectively, people on the list are prohibited from interacting not just with U.S. banks and credit cards companies, but also with any company in another country that wants to be able to do business with the United States.

Ferrari is a tall, clean-cut guy in his early-30s. He was born in Miami and grew up in Pittsburgh. He is Iranian-American but has never been to Iran. He notes that U.S. sanctions against the Iranian government date back to exactly a year before he was born. He got involved in terrorism law as a research fellow in law school and started working on sanctions cases after graduation. Dressed in the slightly oversized suit that is Washington's signature style, he wouldn't stick out in a crowd of D.C. lawyers who make a living asking the government for one thing or another. But his clients set him apart.

One of them, Mozambican businessman Mohamed Bachir Suleman, has tearfully denied the Treasury's allegation that he is a large-scale drug trafficker, according to the Associated Press. The Treasury alleges that Suleman runs drugs and launders money through his family business, retail store, and shopping mall. He petitioned the Treasury three years ago and is still waiting for a decision.

Another woman has a company that is on the list because of alleged dealings with Iran Air, which has been sanctioned as part of the broad sanctions against Iran that are related to its nuclear program. Ferrari says many people end up on the list because of business deals with companies that they didn't know were blacklisted.

One client is a Syrian businessman who allegedly supported Bashar al-Assad's regime. Ferrari said he's alleged to be related to President Assad through marriage, but Ferrari says that's not true.

Another client owns a hotel in Dubai that Ferrari says the Treasury alleges has a very similar name to a hotel a few miles away that is owned by someone else on the blacklist. "I had to print the map out showing them that they were two different hotels," Ferrari said.

Other clients are already in jail, which Ferrari says should get them off the list because they literally can't be doing the activity for which they've been sanctioned. One of them is in jail in New York. He's an associate of convicted Russian arms trafficker Viktor Bout, and he's on the list for allegedly helping former Liberian warlord Charles Taylor.

Another client owned the largest airline in Peru, Aero Continente, before he and his company were designated in 2004. Fernando Zevallos says his designation as a drug kingpin caused criminal authorities to come after him in Florida, where he was indicted for violating sanctions, and in Peru, where he was convicted and sent to prison. The Treasury says he's a "major figure in Peruvian narcotics trafficking activities." After he was imprisoned in Peru, Treasury went back in 2009 and sanctioned his four sisters, a brother, eight associates, and his mother, whom they believe took over the business.

Lawyers can take their cases to court if the petition process doesn't work. Ferrari has done that with Zevallos, who has been accused of running a drug business through his airline. It took the Treasury eight years to even respond to his request to get off the blacklist, and the department said no. He's hoping to have better luck in court.

"You can't let someone languish on a list for eight years," Ferrari said. "That's absurd." The government has asked a court to dismiss the case, but the judge has not yet ruled.

Courtesy of Erich Ferrari

Report

Green Rush

How big agriculture is carving up Africa for industrial farmland.

There is a gold rush happening in Ethiopia, but it's not a hunt for the yellow metal. It's a quest for the green gold of fertile farmland. A nation more associated with periodic famine and acute childhood malnutrition than with agricultural bounty is leasing millions of hectares -- an area the size of Belgium -- to foreign companies, who want to grow and export food to places like Saudi Arabia, China, India, and Europe. 

One-third of the fertile Gambella area in western Ethiopia, for example, is being leased for the next 50 years by the Bangalore-based food company Karuturi Global. Forests are being clear-cut, swamps drained, rivers diverted, and whole villages moved to make way for flower farms and palm-oil and rice plantations. "It is very good land. It is quite cheap.... We have no land like this in India," effused Karuturi's project manager Karmjeet Shekhon to the Guardian soon after the lease was settled in 2011.

The government in Addis Ababa says it needs foreign companies like Karuturi Global to help create jobs, raise Ethiopia's income from food exports, and develop the agricultural technology and infrastructure that can bring the impoverished country into the mainstream of the global market economy. It has enticed investors with tax breaks alongside rock-bottom lease rates (as little as $1 per hectare per year).

But at what cost -- to land rights, to human health, to the environment, to national stability?

It's a question being asked not only in Ethiopia but across Africa. As I report in the current issue of the journal Ethics and International Affairs, many other countries are also welcoming big agricultural projects bankrolled by foreign investors whose goal is to send food abroad. Liberia has reportedly signed concessions for nearly one-third of its national territory in recent years. (Liberia, like many other African nations, claims government ownership of all the country's arable land.) Half of the Democratic Republic of the Congo's agricultural lands are being leased to grow crops, including palm oil for the production of biofuels. Perhaps the largest single venture to date is the ProSavana Project in northern Mozambique, where an area roughly the size of Switzerland and Austria combined has been leased by Brazilian and Japanese companies to produce soybeans and maize for export.

Critics question the wisdom of producing food for foreign consumption in regions where many go hungry -- especially when the land deals displace local subsistence farmers. In Mozambique, where more than 80 percent of the overall population depends on family farming, authorities claim that the land seized for ProSavana is unoccupied. But surveys by the country's National Research Institute show that it is an area of shifting seasonal cultivation and grazing, and the nonprofit group GRAIN estimates that millions of peasant farmers are losing their land as a result of forced resettlement schemes. In Ethiopia, meanwhile, 1.5 million farmers and pastoralists have been moved off of their land to make way for new industrial farms.

According to Olivier de Schutter, the U.N. special rapporteur on the right to food, the reverse transfer of agricultural wealth is a new form of colonialism. Outside powers, with the help of local governments, claim that they are helping countries develop, de Schutter says, when their real motive is to exploit resources to ensure their own food security. "Small-scale family agriculture, on which most of the world's rural poor still depend," he argues, "is threatened by large-scale plantations, export-led agriculture, and the production not of food but commodities."

To make matters worse, the land-grab phenomenon also threatens to foster instability and conflict over scarce resources, population shifts, and the best way to feed expanding countries. Lack of access to food and farmland will likely lead to social unrest in future years, warn scholars at the independent academic research organization the New England Complex Systems Institute. "Conditions of widespread threat to security are particularly present when food is inaccessible to the population at large," they write. "In [such cases] even the threat of death does not deter actions that are taken in opposition to the political order."

Wealthy countries have always looked to faraway, resource-rich lands for food exports. European established plantations throughout the world in the 19th century, and multinational food companies have done the same in the post-colonial era. But recent land grabs are different, and not just in scope: Whereas in the past, most export agriculture focused on products that couldn't be grown at home (bananas, citrus, coffee, cocoa), today's projects often grow staple food crops like soy, wheat, and rice, as well as oils for biofuels.

The African land grabs began in earnest after the global food crisis peaked in 2008. The start of the Arab Spring, which was in no small part a response to the price of wheat more than doubling in under a year, was a wake-up call heard around the world -- especially in countries like the Gulf States and the Asian tiger economies with limited capacity to grow their own food. Corporations in these countries started acquiring terrain in Africa, the continent with the highest percentage of available arable land, as an insurance policy against extreme price volatility on the global market. And African governments, desperate for infusions of cash and technology, were willing partners. 

The United Nations has proposed some basic ground rules to regulate these land deals, but they are non-binding and frequently flouted, leading to a chaotic situation. "It appears to be like the Wild West," said José Graziano da Silva, the head of the U.N.'s Food and Agriculture Organization, "and we need a sheriff and law in place."

This lack of effective regulation threatens the livelihoods and basic rights of millions of Africans. In a scathing 2012 report on Ethiopia's Gambella region, Human Rights Watch documented arbitrary arrests, rapes, beatings, and killings of those who have resisted leaving their villages to make way for foreign projects, as well as starvation among the newly landless. This hunger is caused in part by the diversion of agricultural land away from local food production, which has boosted food prices. Graham Peebles, the director of Create Trust, a Britain-based charity that runs education projects in Ethiopia, writes that the leasing of fields formerly used for the cultivation of the staple teff "is largely responsible for costs of teff (used to make injera -- the daily bread) quadrupling in the last four years."

On the security front, controversial land deals have already sparked violence. In Ethiopia, members of the Suri tribe have taken up arms against the military to try to stop the diversion of the Koka River to irrigate a Malaysian plantation project, which threatens to drive them from their villages in a fertile floodplain. And when the South Korean industrial giant Daewoo struck a deal to lease half of all the arable land in Madagascar for the production of corn and biofuels, a bloody uprising led to the ouster of the country's president, Marc Ravalomanana. (His successor's first act in office was to revoke the unpopular deal.)

There may be trouble ahead for Liberia as well. An op-ed by two land rights activists in the New York Times last year argued that massive land transfers threaten Liberia's fragile stability. "These concessions come at a delicate time," Silas Kpanan'ayoung Siakor and Rachel Knight wrote, "as violent local-level land disputes both between and within villages are still widespread throughout Liberia." Emmanuel Jangebah, a tribal chief in Totoquelle, a village slated to be "developed" for oil palms by a Malaysian corporation, put the matter bluntly: "If we see bulldozers in the bush, we will take our machetes and run to meet them," he told OnEarth magazine

There is also potential for violence in the newly formed nation of South Sudan, where the government has lost no time in leasing nearly 10 percent of its territory to foreign investors -- an alarming development, according to David Deng, research director of the South Sudan Law Society. "It is fairly clear to us all that poorly planned investments can contribute to conflict, particularly in fragile, post-conflict states," Deng told the Guardian in 2012. "But conflict can also attract investment, as opportunistic companies come to take advantage of power vacuums, and in the case of South Sudan, of a massive transfer of wealth to a bureaucratically weak government."

These are just a few of the places where instability looms, if land acquisitions are not better regulated and managed. Troublingly, however, some African governments are expressing discontent over land grabs for reasons other than the threat of conflict and human rights violations. In Ethiopia, the Karuturi project is lagging behind schedule due to flooding, poor infrastructure, and other issues. Addis Ababa, in response, says it will pull support and licenses for utilizing land from projects that do not develop as quickly as it wants. "If the failure is their failure then we will be obliged to take the measure," Agriculture Minister Tefera Deribew said in an interview with Bloomberg in late November. (Research has estimated that some multinationals are also waiting for the right market conditions before they exploit land they've obtained, letting it lie fallow in the meantime.)

Nobody denies that Africa's agriculture needs to be improved, and soon, if the continent is to feed its rapidly growing population. (The population of Ethiopia, for instance, is expected to triple from 90 million to more than 278 million by 2050.) But to ensure future food security, a fair balance needs to be struck between increasing agricultural exports and serving local needs. Stephen O'Brien, parliamentary under-secretary of state for international development in Britain, says it's vital that "the interests of the poorest and most marginalized groups are taken into account, both in the decision-making process when looking at whether to sell agricultural land, and in getting their fair share of the subsequent benefits, whether financial or food produced." 

One way that local farmers can be served is by sharing with them the latest knowledge about small-scale, "agroecological" or low-input sustainable farming, which does not require costly agrochemicals, genetically modified seeds, and mechanized farm equipment in order to succeed. Agronomists have developed inexpensive ways to boost the productivity of small family plots, which can produce equal and, in some cases, higher yields than large plantations do.

The Oakland Institute, a California-based think tank that focuses on agriculture and land-rights issues, cites the System of Rice Intensification (SRI) along the Niger River in Mali as a model operation. The SRI, a low-input cooperative irrigation system, involves tiny plots of only one-third of a hectare. Yet it grows an average of nine tons per hectare, more than twice the production of Moulin Moderne du Mali, a major multinational investor, and its farmers are able to earn $1,879 a year, more than double Mali's average per-capita income. 

Such small-scale projects can potentially keep huge numbers of family farmers profitably employed and produce food for local markets while preserving land for future generations. And critically, undertaking these projects doesn't mean abandoning the large-scale production of food for foreign markets. (Export dollars, after all, do matter economically.) Multinational corporations can help accomplish both goals: In exchange for being granted licenses to grow food for export, corporations should be contractually required to invest in local agriculture and offer technical assistance and infrastructure improvements for small landholders.

For this to happen, however, the playing field between local and foreign interests must be leveled. Binding rules need to be established by international bodies -- and agreed to by African governments and multinational corporations -- which will protect the rights of indigenous farmers, as well as ensure the integrity of Africa's environment, soil, and water. Otherwise, the hastily negotiated land deals will continue to shortchange the long-term interests of millions of Africans, leading to more hunger, displacement, even turmoil.

AFP PHOTO/JENNY VAUGHAN