DISPOSITION OF INTERDICTED CARGOES

S E C R E T SECTION 01 OF 04 STATE 091868

SIPDIS

E.O. 12958: DECL: 09/03/2019
TAGS: PARM PREL KNNP MNUC ZP AE
SUBJECT: DISPOSITION OF INTERDICTED CARGOES

REF: A. A) STATE 021428

B. B) ABU DHABI 716

C. C) TD-314/054479-09

Classified By: ISN Robert Mikulak for reasons 1.4 b, c, and d

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ACTION REQUEST
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1. (U) Post is requested to deliver the points (para 5) and
the nonpaper (para 6) to appropriate host country government
officials.

End action request.

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SUMMARY AND BACKGROUND
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2. (S) The UAE has, since at least 2006, raised with the U.S.
the issue of how to dispose of proliferation-related cargoes
that it interdicts. This is a critical issue that, if left
unresolved, could potentially erode UAE willingness to
conduct interdictions in the future. The U.S. has offered
the UAE consultations on this issue and has also provided
options for the UAE to consider (ref A).


3. (S//NF) At the June Counterproliferation Task Force
working group on export controls, we reiterated our
willingness to help the UAE with this issue. We suggested
that the UAE add language that would address this problem to
the export control implementing regulations it is currently
drafting. We indicated that Washington would provide
language from U.S. laws that it could draw from. We also
reiterated our interest in discussing this issue in greater
detail at the experts, level. The UAE indicated that it
wished to wait until its newly formed Executive Office was
established, but said that such a meeting might be possible
in the September - October timeframe(ref b). As of August
2009, the UAE reportedly was drafting a new cabinet
resolution, scheduled to be issued in approximately September
2009, which would purportedly address disposition of
interdicted cargoes (ref C).

End summary and background.

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OBJECTIVES
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4. (S) Post should achieve the following objectives:

-- Express appreciation for the UAE,s continued efforts to
interdict proliferation-related cargoes.

-- Inquire about the status of the UAE,s efforts to address
the issue of whether it has adequate legal authority to
dispose of legally interdicted cargoes that have been
transferred in violation of Security Council resolutions or
are otherwise illicit.

-- Encourage it to develop legal authorities, or if those
authorities already exist, to make them explicit by including
them in the export control implementing regulations or a
government resolution.

-- Offer the nonpaper for its consideration.

-- Reiterate our interest in a working group meeting on this
issue for September or October.

End objectives.

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SUGGESTED TALKING POINTS AND NONPAPER
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5. (S/REL UAE)

-- We appreciate the UAE,s continued efforts to interdict
proliferation-related cargoes.

-- We have discussed with you previously various options for
the UAE to resolve the issues it has been having with the
disposition of seized cargoes.

-- In this regard, we presented you a paper prior to the

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Counterproliferation Task Force meeting last March outlining
options for ways the U.S. could help, including for example,
technical assistance with physical disposal of interdicted
cargoes.

-- Consideration of any disposition options would, of course,
depend on whether they are consistent with Emirati law, as
well as any applicable international law.

-- We suggested in the recent June Counterproliferation Task
Force experts meeting that you consider adopting additional
legal authorities, possibly in the context of the export
control implementing regulations you are presently drafting,
that would provide you with greater domestic legal authority
to address the disposition of interdicted cargoes.

-- As promised in the June experts meeting, we have provided
a nonpaper with examples of U.S. legal authorities that
address the disposition of seized goods; you may find these
useful as you draft the export control implementing
regulations.

-- In June, you said you might be able to meet this fall to
discuss this issue further. We would like to explore the
possibility of a meeting in September or October.

-- We also note that, under operative paragraph 14 United
Nations Security Council Resolution 1874, Member States are
required to seize and dispose of items, the supply, sale,
transfer, or export of which is prohibited by paragraph 8(a),
8(b) or 8(c) of Security Council Resolution 1718, and that
are identified in an inspection pursuant to paragraph 11, 12
or 13 of Resolution 1874.

End suggested talking points.


6. (SBU) Begin Nonpaper

NONPAPER ON U.S. LEGAL AUTHORITIES FOR THE DISPOSITION OF
CARGOES

As we continue to work together on counterproliferation
issues, it will be important to address legal questions
associated with the disposition of seized cargoes. What
follows are examples of U.S. legal authorities regarding
seizure and disposition of cargoes. We hope these examples
will be useful in your efforts to adopt domestic legal
authority in the UAE needed to permit the UAE to dispose of
legally seized proliferation-related items.

--Seizure and Forfeiture of Cargo--

a. The following is a general description of U.S. legal
authorities to seize and forfeit inbound merchandise:

U.S. customs officers have broad authority to seize
merchandise for forfeiture if they have probable cause to
believe that merchandise has been brought in, imported, or
introduced into the U.S. contrary to law. (In this context,
probable cause refers to the collection of facts and
circumstances that is sufficient to lead a reasonable person
to believe that a particular person committed a crime or that
particular property is subject to seizure for a violation of
law.) Once the merchandise is seized, those persons with an
interest in the property, including owners and lienholders,
receive notice of the seizure and the government,s intent to
initiate forfeiture proceedings and are provided an
opportunity to petition the government to release the goods,
unless the goods are prohibited merchandise such as illegal
drugs.

b. The following is an excerpt of the U.S. law that governs
the seizure and forfeiture of inbound merchandise:

&Merchandise introduced into the United States in violation
of this section( (making it a violation to smuggle, pass a
false document through the customhouse, or import merchandise
contrary to law)(, shall be forfeited to the United
States.8 (Citation- 18 U.S.C. 545)

c. The following is an excerpt of U.S. law that governs the
seizure and forfeiture of outbound merchandise:

&Whenever an attempt is made to export or ship from or take
out of the United States any arms or munitions of war or
other articles in violation of law, or whenever it is known
or there shall be probable cause to believe that any arms or
munitions of war or other articles are intended to be or are
being or have been exported or removed from the United States
in violation of law, the Secretary of (Homeland
Security)(may seize and detain such arms or munitions of war
or other articles and may seize and detain any vessel,

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vehicle, or aircraft containing the same or which has been or
is being used in exporting or attempting to export such arms
or munitions of war or other articles.8 (Citation- 22 U.S.C.
401)

--Items in transit--

The legal authorities to search, detain, and seize inbound
items also apply to search, detention and seizure of items in
transit. No distinction is made between inbound items and
items in transit for purposes of these authorities.

--Disposition of Forfeited Cargo--

a. The following is a general description of U.S. legal
authorities to dispose of forfeited cargoes:

Most contraband, such as illegal drugs or counterfeit
trademarked articles, may be destroyed under a customs
officer,s supervision. With respect to other goods that
have been forfeited, customs officers may: sell them at
auction (unless such sale is not feasible because the
transport of the article requires a license for
import/export); destroy them; retain them for official use;
transfer them to other government agencies; and in some
limited cases donate them to charitable organizations. Where
the goods are sold at auction, the proceeds of sale are
deposited in a government fund and are made available to
offset law enforcement expenses, including costs of seizure
and storage, investigation, informant awards, and
reimbursement of private citizens.

b. The following is an excerpt of a U.S. law that governs the
disposition of inbound forfeited cargoes:

&Importation, removal, etc. contrary to laws of United
States. Except as specified(, every vessel, vehicle, animal,
aircraft, or other thing used in, to aid in, or to
facilitate, by obtaining information or in any other way, the
importation, bringing in, unlading, landing, removal,
concealing, harboring, or subsequent transportation of any
article which is being or has been introduced, or attempted
to be introduced, into the United States contrary to law,
whether upon such vessel, vehicle, animal, aircraft, or other
thing or otherwise, may be seized and forfeited together with
its tackle, apparel, furniture, harness, or equipment.8
(Citation- 19 U.S.C. 1595a(a))

&Penalty for aiding unlawful importation. Every person who
directs, assists financially or otherwise, or is in any way
concerned in any unlawful activity mentioned in the preceding
subsection shall be liable to a penalty equal to the value of
the article or articles introduced or attempted to be
introduced.8 (Citation- 19 U.S.C. 1595a(b))

c. The following is an excerpt of a U.S. law that governs the
disposition of outbound forfeited cargoes:

&Merchandise exported or sent from the United States or
attempted to be exported or sent from the United States
contrary to law, or the proceeds or value thereof, and
property used to facilitate the exporting or sending of such
merchandise, the attempted exporting or sending of such
merchandise, or the receipt, purchase, transportation,
concealment, or sale of such merchandise prior to exportation
shall be seized and forfeited to the United States.8
(Citation- 19 U.S.C. 1595a(d))

d. The following is an excerpt of a U.S. law that governs the
funds generated from the sale of seized and forfeited cargoes:

&In general, there is established in the Treasury of the
United States a fund to be known as the &Department of the
Treasury Forfeiture Fund8 (referred to in this section as
the &Fund8). The Fund shall be available to the Secretary
(of the Treasury),without fiscal year limitation, with
respect to seizures and forfeitures made pursuant to any
law(enforced or administered by the Department of the
Treasury or the United States Coast Guard for the following
law enforcement purposes:

Payment of all proper expenses of seizure (including
investigative costs incurred by a Department of the Treasury
law enforcement organization leading to seizure) or the
proceedings of forfeiture and sale, including the expenses of
detention, inventory, security, maintenance, advertisement,
or disposal of the property(8 (Citation- 31 U.S.C.9703(a)1)

End nonpaper.

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REPORTING DEADLINE

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7. (U) Please report response within ten working days of
receipt of this cable.

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POINT OF CONTACT
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8. (U) Department point of contact for follow-up is Chris
Herrington ISN/CPI 647-5035.
CLINTON