‘DID a Lebanese business executive harm anyone when he sold flotillas of modern ships and systems to the African nation of Mozambique?,’ asks Philip M. Griffin*
That will be an immediate question that jurors in Brooklyn federal court are wrestling with in the important international case US v. Boustani.
In an elaborate and lengthy prosecution, the US government maintains that Jean Boustani engaged in various conspiracies: to defraud American investors, to launder money and to commit wire fraud. While there are such things as victimless crimes, such as trespassing or jaywalking, for example, conspiracy to defraud is not one of them. Conspiracy requires a victim. By definition, it is an organised effort to thwart the law in order to disadvantage someone else under that law’s protection.
Ever since philosopher John Stuart Mill articulated the harm principle around the time of America’s founding, most legal scholars have come to regard it as something akin to common sense. It states, in short, that an individual can do whatever he or she wants to do as long no one is harmed in the process. But when someone is harmed, authorities can work to prevent such acts.
Mill, a Scot, did his theorising in England, an ocean away. Boustani, also a foreigner, has been without liberty since early January when he was snatched from a family vacation in the Dominican Republic and flown to New York where he sits in a Brooklyn jail.
The Boustani trial has attracted worldwide attention in part because his case is so bizarre. Why would the sale of ships, built in Europe by a Middle East-based industry leader to an African nation be of any concern to the United States? The $2bn contracts were financed by loans from Swiss and Russian banks, one of which much later re-sold part of the debt globally, including to some American vulture capitalists. That sale, the fact that funds were recorded in the ledgers of US correspondent banks, and that it was all calculated in US dollars are the bases for the prosecutors’ case.
Were John Stuart Mill alive today, he might call this pretty weak tea.
‘This is a murder trial while the “victim” is still alive,’ Boustani’s defence attorney Randall Jackson thundered in his closing argument last Thursday. Who, precisely, is the “victim” anyway?
The US-based investment firms that took flyers on the chancy prospect of making a killing on the secondary debt lost no more, and probably less than they routinely do in speculating on global markets. More importantly, Boustani had nothing to do with the decision of Credit Suisse, the Swiss bank that underwrote the sale, to re-sell the debt years later, the government’s own star witness testified. In fact, he was uninvolved in the marketing of the debt at any stage.
Prosecutors said the Swiss and Russian banks might have been hoodwinked into financing the deal because they were not told about incentive payments made in Mozambique. Such a charge, entirely unconnected to the US, recalls Captain Louis Renault’s famous line in the movie Casablanca about being ‘shocked’ to find out that gambling was going on in Rick Blaine’s Café Americain.
Finally, there is the suggestion that the Mozambique people themselves were victimised by being saddled with new debt as a result of the deal. But the boats that Boustani sold the government were delivered, and today both a tuna fishing fleet and a coastal patrol fleet sit idle in and near the capital of Maputo. Mozambique’s failure to put these into service, creating well-paying fishing jobs and protecting the coast from pirates, smugglers and predatory foreign fishing vessels is not Boustani’s fault by any stretch of the imagination.
Every ‘victim’ scenario, in this case, unwinds on closer examination – except for one. That is the victimhood of the defendant himself. Jean Boustani conspired against no American. On review of the case, he conspired against no one at all. Instead, he has become a victim of an overly zealous American prosecution in search of a villain. The case appears to be an exercise in trying to apply US law to other countries and to persons outside America’s jurisdiction.
It is, as Jackson lamented in his closing argument, ‘an insane an arbitrary abuse of US prosecutorial power.’ Whether or not the one victim here gets any relief is now in the hands of a Brooklyn jury.
*Philip M. Griffin is a former senior staffer responsible for African policy on the [United States] Senate Foreign Relations Committee