Since 2011, Cassidy and Associates (“CA”), one of USA’s largest lobbying firms has as one of its clients, Mir Quasem Ali, one of the 14 indicted by the International Crimes Tribunal (“ICT”) for war crimes committed in 1971. Documents from US congress disclose that CA has assembled a four-member team to lobby the ‘US House of Representatives, the US Senate and the State Department’. The team included its Chairman, Gerald SJ Cassidy, one of Washington’s most influential lobbyists, Mark Clack, one of its senior vice-presidents and Elizabeth Tregaskis, the company’s ‘international specialist.’ (1) Till date, over 500,000 (half a million) dollars have been paid to CA by Mr Ali and his family over regular intervals and currently, Mr Ali’s lobbying needs are headed by Gregg Hartley, one of CA’s Vice Presidents (2).
So, what is CA expected to do for Mr Ali? The stated reason in the registration form lodged with the US Senate reveals that CA’s role is to try and influence the country’s (USA’s) politicians and government officials on the ‘Bangladeshi War Crimes Tribunal’ and issues relating to the ‘political opposition’. G Hartley has already lobbied on the issue in Congress, at the State Department (including Secretary of State Hilary Clinton) and with human rights groups. Thus, to be crude but honest, what CA is trying to achieve is this: To do whatever it can with its own government to influence and/or pressurise a third world country to back off from a legitimate judicial process which enjoys overwhelming popular support. Such a contention seems prima facie morally objectionable and unethical, doesn’t it? What does the law say in this regard?
Lobbying is a constitutionally sanctioned activity in the USA. The First Amendment to the US Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Thus, when individuals or groups lobby, they are exercising their basic right “to petition the government for redress of grievances”.
Statutory regulation comes in the form of the Lobbying Disclosure Act 1995 at the federal level. This Act, among other things, defines what is meant by a ‘lobbyist’ and ‘lobbying’, disclosure requirements for financial information, and also provides for registration requirements. The form used for registration requires details to be provided about the lobbyist and the client or employer, and also about the policy issues which will be the subject of the lobbying activity. Reports must be filed at the end of each six-month period retroactively identifying exactly which policy issues and legislation the lobbyist worked on as well as setting out which parliamentary or executive personnel were lobbied. At the state level, with the exception of Pennsylvania, 49 of the 50 states have some measure of regulation. These also provide for additional registration and disclosure requirements.
However, the current laws, at the federal as well as state level, do not provide for any red-light or excluded areas for lobbying as such. A lobbyist may do anything on behalf of their clients as long as it is not outright immoral or illegal. Thus, although there are limits to what the lobbyist can do on any given subject, there are no boundaries on what those subjects can be. My argument is that there should be a clear demarcation of issues which can be lobbied and those which by their very nature should be kept out of the ambit of any kind of influence. The current regulatory framework has resulted in lobbyists being able to be instructed in such a matter where their job is to influence their government’s views or policies regarding a foreign judicial process of immense historical, political and sentimental value to the people of that land. Such sensitive political matters should not be the concern for private lobbyists. These are matters falling within the ambit of official foreign policy.
And the effects of such a campaign are quite visible. Members of the Congress like Rep. Joe Wilson, R-S.C have started raising questions about the case. He has stated in the House that he is concerned that Ali’s “arrest and ongoing detention may represent a thinly veiled attempt by the ruling government of Bangladesh to silence its opponents and critics”. What is worrying is NOT about a US congressman taking interest in Bangladesh’s political or judicial activities. That is perfectly legitimate. The concern stems from the source of information on which such an objection is based. Hartley has already clearly expressed his line of attack on the ICT: it’s a ‘Kangaroo court’ (3).
The strength of the opposition to the trials these days is such that activists and campaigners are finding it difficult to disseminate even the most widely accepted facts and information regarding these crimes. Suddenly, in a matter of a year or so, the Bangladeshi versions of Hitler and his Third Reich find themselves as the most desired object of protection for rights activists, war crimes specialists, and academic commentators. Can you blame anyone if one suspects that the millions of dollars spent on lobbyists have something to do with this change of positions?
It is conceded that the Bangladesh war crimes trials have not been a model judicial process. But,
given the overall standards of the justice system in Bangladesh, one must accept that these trials are a significant achievement when it comes to setting right certain issues relating to the rule of law in a country that suffered so much and paid so much for its freedom. The trial process may not be perfect, but cannot be subject to foreign interference. Bangladesh is trying its own nationals, for crimes committed against its own nationals, in its own tribunal, pursuant to its own laws, financed by its own resources and mandated by its own electorate.
Many Bangladeshis are now finding it hard to trust any further advice USA gives Bangladesh on its judicial or political system generally, or its war crimes trials in particular, given the prevalent perception that these suggestions are likely to be biased, artificial and induced by lobbying. How would the Americans have felt if during the Nuremberg and Tokyo trials, the defendants hired a lobbying firm in the USA to influence the trials of the war criminals or obstruct the judicial process?
It might be worth the US policymakers’ time as well to consider how such lobbying efforts may, in the long run, hurt America’s diplomatic standing. For example, when the US Ambassador at Large for War Crimes Stephen Rapp visited Bangladesh for the first time in the wake of the trial, his visit was not only welcomed by ordinary Bangladeshis but several of his suggestions regarding amendments to the war crimes tribunals’ laws, rules and procedures were implemented by the Bangladesh government. However, now that the story of the lobbying has become public, one would tend to view any US suggestions with some suspicion. The number of sceptics would surely grow at the least. Similarly, questions will be raised about the actions of the US-based rights groups like the Human Rights Watch, for example. With lobbyists up to their task, it is difficult to distinguish between genuine concerns and lobbying-induced pressure.
Just one question for the US people in general and the Congress in particular: Does the basic right ‘to petition the government for redress of grievances’ under the first Amendment to the US constitution include the right to petition the government for blocking other nations’ right to seek redress for their own grievances in their own political and judicial order? If not, then it is high time that the regulatory framework for ensuring ethical standards of lobbying in USA were urgently reconsidered and reformed. At the very least, some areas should be identified as improper for lobbying – meddling in a sovereign country’s affairs, for instance.
Shah Ali Farhad is a lawyer, blogger, activist and campaigner for the 1971 war crimes trial.