Arms sales dramatically increased under Obama

Intriguing graphic suggests dramatically increased arms sales to the Persian Gulf (“exploded”? such an unfortunate term…)

As I see it, that reflects Obama’s priorities, and should be a credit to former US Ambassador to Saudi Arabia, James B. Smith.

One thing off the articles radar:  these sales create jobs, both in the KSA and in America.  $60 billion over 4 years amounts to nearly 300,000 jobs.  Quite a clip.

That said, the bulk of those sales reflect a very long set of projects and the work of nearly a decade by many hands – several people deserve some kudos for this work, which ultimately, makes America (and the Gulf) safer.

Of course, the article from which the graphic originated takes a very different position…

Saudi Cautious After Meeting Obama

“We will follow the talks and see before we can judge in terms of whether or not the Iranians will do what it takes to reach a deal,” Mr. Jubeir said [quoted by the NYTimes]

Intriguing that the quote was to the new foreign minister, rather than the Crown Prince or Deputy Crown Prince of Saudi Arabia. As a minister, even an entirely trusted one, Adel Al-Jubeir speaks for the country, and not for any individual (save the King).  While individual royal persons might ascend or descend from any positions in the hierarchy at the King’s will, such changes are an exceedingly delicate family affair.  Hence, selecting a minister (who will stay on message no matter what) to voice the King’s view makes sense.

In terms of the content: it matters very little what is said.  Should Obama declare any of the Gulf Arab state a formal ally, the domestic backlash would be extensive (it’s already fairly hefty just with the minimal formal pledges).  More importantly, it binds future presidents, as any time they criticize any conduct by any leader, that leader will remind the president, “But aren’t we ‘allies’?  Is this how you treat your allies?”

Not that this makes so much difference (witness Netanyahu snubbing Obama in March) – allies often disagree, but at the end of it all, they are committed to defense in a way that influences the entire national strategy and defense posture.  An “ironclad” commitment is mere words – which in practice, are quite likely to be backed by American power (putting Iran on notice should they ever attack Arab shipping lanes again) – but which will not steer national defense strategy: one does not place bets on the future of one’s children or one’s borders lightly, and in the Middle East, such logic drives a great deal.  As it should.

 

 

Carnival Fun House & Employee Mobility

Saudi Arabia, and most of the Arab Gulf, has a policy “favoring” employee mobility based on the Labor Law of 2005, Art. 3.  Workers have a duty to protect trade secrets of their employers (Art. 65), and failure to do so is grounds for termination (Art. 80).

The key provision with respect to workplace secrets is Article 83, which provides (in paraphrased translation)

If the work assigned to the worker allows him to become acquainted with the employer’s customers, or to have access to the employer’s business secrets, the employer may reserve a right to require the worker not to compete with the employer or reveal the employer’s secrets upon expiration of the contract. To reserve such rights, they must be written in the contract and specific as to the (1) duration, (2) place, (3) type of work, and (4) reasonable to the extent required to protect the legitimate interests of the employer. In all cases the duration of such agreements shall not exceed two years from the date of termination of the relationship between the two parties. (paraphrased translation)

Findings as to duration, place, type of work, and reasonableness are fact-laden inquiries.  Hence, actually enforcing covenants against Gulf Arab citizens is an expensive endeavor, unlikely to prevail (in view of the right of citizens to work).

For non-Gulf citizens, however, the whole issue is avoided.  An employer can simply deny a visa transfer (except perhaps in Bahrain), making the whole effort unnecessary.  Work is the “right” of citizens, but the “privilege” of a non-citizen, earned only when the sponsor procures that privilege on a non-citizens’ behalf.

In practice, this differential can result in quite different outcomes for cases, which some observers regard as “prejudicial” or “unfair.”  Bear in mind though, even in California, outcomes or arguments in a labor context can verge on “nonsensical” (or as this opinion finds, a “kind of carnival fun house”).

“Made in Arabia” v. “Made in America”

Made in Arabia?  One might wish that the Ministries of Commerce and Industry and the various development funds intended to benefit local manufacturers in the Middle East offered the clarity of a public court system.

Here, based on California rules, a U.S. district court determined manufacturers are required to use labels such as “Made in America from foreign materials” to comply with a California rule, instead of slapping a simpler, “Made in America” tag on products with some foreign sourced components.   Continue reading “Made in Arabia” v. “Made in America”

Prince Mohammed bin Naif ascends to Crown Prince; terror cluster is arrested

Big news from the KSA: on the day of HRH Prince Mohammed bin Naif’s elevation to Crown Prince, the Ministry of Interior nabs 93 militants in Saudi Arabia.  Coincidence?

Arabnews Infographic

The “Daesh” (the IS) have killed some 15 people in the KSA in the last year or so, mostly Saudi nationals.  Coordinating the arrests as a “gift” to HRH is grist for the mill – doubtless, the efforts to track all the members has been ongoing for months.

Prince Mohammed bin Naif has long been a leading contender among the second generation (the grandsons of King Abdulaziz Al Saud) for the position as Crown Prince and heir apparent. Certainly there are many other excellent choices.  HRH Prince Mohammed bin Naif stays on as Interior Minister (no surprise, and the ‘coincidental’ news coverage fits).  Fond memories of the reports of Prince Mohammed joking with others over surviving an AQ in Yemen assassination attempt – and of the security climate thawing notably during my time in Riyadh under his and his father’s tenure.  The short-lived appointment of Prince Muqrin to the position of Crown Prince, and then his removal from it, strikes me as political maneuvering within the royal family – test to see who, if anyone, has a complaint about Prince Mohammed, or any other demands of some other sort, and once the obstacles are removed, proceed with the elevation.  Three months is remarkably fast.

Those looking to parse Prince Mohammed bin Naif’s position – on much of anything – are reading tea leaves.  As Minister of Interior, he implements agendas and puts out fires (literally and figuratively) – much as his father did before him.  Most of the consultants who’ve worked for the Ministry of Interior directly or indirectly have positive reports about it (or more often, no reports whatsoever) (and this is always relative to other ministries).

More interesting, perhaps, are the other changes in the Saudi Cabinet.  Prince Saud Al-Faisal has held the slot as Foreign Minister for 40+ years.  Adel Al-Jubeir has been a very competent Saudi ambassador to the US (during a time when many others took strident tones against Obama and esp. against the Iran nuclear deal, linking closely to U.S. Republicans – his tenure has consistently reflected the non-flashy, nuts’n’bolts ‘get the job done right’ approach of a consummate career diplomat).

Khalid al-Faleh, Saudi Aramco’s CEO, becomes Minister of Health?  Interesting.  Aramco certainly operates plenty of health facilities, and is likewise regarded as an “efficiency wonk” in a position demanding close international ties.   Still, from oil to health?

Adel Fakeih leaving the Ministry of Labor for the Ministry of Economy & Planning – makes one wonder.  The efforts at Saudization under his tenure at Labor were extensive, but crippled a number of businesses trying to operate (and the effects seemed to fall most heavily on foreign investors and small/medium companies – the large ones operate through networks of subcontractors so they can create a “90%+” Saudization number that never actually reflected their real-world work flow).

Many other changes and appointments since King Salman ascended to the throne – but parsing what it all means will only become clear with time.

Construction site collapses in Qassim

Hate to see this. (See story on Riyadh Connect)

Image: sabq

 

Impossible to distinguish the blue uniforms and tell who these workers are. Wondering: how many of the deceased had pending visa issues, were supporting families at home, were struggling with the myriad things people struggle with?

Wondering: who is the prime contractor?  Who are the subs?  The engineer firm?

Wondering: were any of them clients?  Now, or previously?

How things change over time.  May the injured recuperate, may the deceased be remembered.

 

Bond Debacles: American and Saudi style

In 2012, Saudi Arabia issued $4 billion in government bonds to modernize its aviation and upgrade its airports: a first for the Kingdom.

Among the first bonds to be issued (according to Niall Ferguson and Luciano Pezzolo) were in 1262, by Venetians intended to finance a war against Genoa and the Byzantine Empire.  Venice, Genoa, and Florence were early leaders in the concepts underlying bonds as understood in the West, which centuries later found their way to the Netherlands, thence to England, and ultimately throughout Europe (with varying degrees of papal hostility – Catholics also opposed interest rates in many instances).

Saudi Arabia’s bond measure followed a sukuk model – rather than paying interest, the bond owner collects a form of rent through a partial ownership stake.  While an investor might see them as variations on the same concept, a lawyer sees them as distinct as apples are from dates.

Still, in every instance, the great issue of bonds is “what the heck is the money actually used for?”  Was the money used for the intended purpose?  For Venice, Genoa, and the Italians – small city-states, the bonds were to be used for war, but those wars took place far away, with vessels most townsfolk would never see.  For the Dutch and the British, the bonds also linked to war, but also often to merchant activities (Shakespeare wasn’t exactly writing in a vacuum – many English would have known of bonds and their perils).

One intriguing illustration: Los Angeles’ bond fiasco, buying iPads for every child in the city.  iPads are pretty good technology, leading tablets from the leading supplier.  The curriculum was drafted by Pearson, also a leader in its field and one of the largest publishers of textbooks.  What could go wrong?

Well, from the sound of it, just about everything.  Great money spent.  Minimal impact.  Tragic.  Perhaps LA school districts will be able to recover some of the costs from those large companies they originally selected – perhaps not.  Much depends on their lawyers.

Last I checked, work has been underway to upgrade the King Abdulaziz Airport for close to forever.  Some of the biggest players in engineering and design have been involved (one or two of them are quite familiar to this lawyer).  But as with many bond-driven major projects – the issue is never just, “how good are the players implementing the bond?” but “how aggressively will the rights of the bondholders be defended against waste and extravagance.  It’s never a simple, straightforward task – not in America (despite centuries of experience), nor in Saudi – but one that merits respect for those who undertake to do it well.

 

Spousal Visas and Kerry v. Din

Reading through an intriguing case like Kerry v. Din, which was argued last month before the U.S. Supreme Court, I can understand why nobody but lawyers would bother to try to understand exactly what these justices are splitting hairs over.  But it’s a most intriguing argument.

Facts of the case: Husband, an Afghan citizen, filed for a visa to join his wife, a U.S. citizen, in the U.S., only the consulate refuses to issue a visa on terrorism grounds.  Husband tried to prove he wasn’t a terrorist, but failed.  Wife (Fauzia Din) filed to review the consular decision to obtain clarification why her husband was deemed to be a terrorist. Consulate refused to explain why (as per the statute). Suit follows.

Justice Breyer puts it succinctly:

I’m worried about the case where…an American citizen either must live separately from her spouse forever or must give up her right as an American to live in her native land.

Indeed.  Millions of Americans married to non-citizens share such worries.

Two main issues here:

First, is the doctrine of “nonreviewability of consular decisions” (basically, courts don’t intrude into decisions about visas) an absolute bar to courts reviewing a case like this?

Second, can a wife assert a constitutional interest on behalf of her husband to get a clarification of a consular decision?

Seems odd that the “doctrine of nonreviewability” means executive actions at the consulate are subject to “extreme deference” (more deference even than the president’s reports about the state of war in Vietnam?).  Why would consular decisions receive greater deference than other presidential decisions? Well, Congress said so.  Maybe.

Yet Congress also issued extremely long instructions to make sure consular officials make their decisions based on Congress’s standards – AND NO OTHER STANDARDS (particularly with respect to the interpretation of “terrorism”).

The oral arguments featured a number of “ridiculous” hypotheticals (e.g., what if the consular officials are bigots, or think husbands shouldn’t live with their wives, or whatever).  I’m not sure I understand fully, but it seems there’s a slightly different sort of problem: how could Congress “know” that the law they wrote had actually been implemented without some modicum of oversight?

Say “terrorism exemption” portion of the relevant statute reads

1.  Consular decisions are not subject to review by any other agency or judicial authority.

2.  The reasons for consular decisions need not be reported to anyone.

3.  Consular officials may not issue visas to terrorists.  Terrorists, for purposes of this statute, are:

(a) People who take up arms against or threaten the U.S.; or

(b) People who desecrate the American flag.

Say G.I. Joe Ali applies for a visa, is married to an American wife.  Say G.I. Joe Ali is a legendary hero who has fought to protect American lives (e.g., “Lone Survivor” – such folks may exist). G.I. Joe applies for a visa, and he comes in for his interview wearing his favorite red, white, and blue jeans.  His application is denied, and he is told it’s because of the “terrorism exemption.”  A consular official regarded those jeans as a “desecration of the flag.”

G.I. Joe could assert his deep love for America.  He could get every soldier to testify on his behalf, obtaining dozens of statements from the soldiers he saved.  He could go out and save a hundred more soldier’s lives. It would make no difference – he failed on account of the “flag desecration” element of the law and would never get his visa.

G.I. Joe wouldn’t even know that he’d “desecrated the flag” – in his mind, these are a favorite badge of support for America!

Poor Ali! But ignorance is no defense.  What is interesting is that Congress wouldn’t know it either.  They’d ask for a report, and be told “failed the terrorism exemption.”  They’d never know that their code – which was drafted to do something very precise – had been interpreted to mean that “red/white/blue jeans” = “flag desecration.”  If they did know, then they could amend the code to clarify what they meant by “flag desecration.”  But nope – it’s nonreviewable – Congress will never ever ever know how it’s law was implemented, but only that “the terrorism exemption” applied.

Having read through 8 U.S.C. 1182 (as provided by the government in its brief) – I’m reasonably sure there’s no “flag desecration” element buried there – this is just one more ridiculous hypothetical (and the justices already offered a fair number of ’em).

But the definition of “terrorist” that actually is in the statute is extensive. Congress cared deeply that THIS DEFINITION AND NO OTHER DEFINITION be applied by consular officials precisely as it is written. How will they ever know for sure that consular officials have done that?

According to the government’s position, the “doctrine of nonreviewability” would seem to mean, Congress just has to trust these consular officials.  Odd.  The plenary power of Congress to regulate immigration would prevent them from knowing what their statutes were actually doing in the real world – they’d have to just trust the executive.

The U.S. consular officials I’ve known have been excellent, hardworking government officials.  But at least a few congresspeople don’t trust government officials.  Why would these particular officials receive so much more trust than, say, the president?  It’s remarkable.

My expectation: 4-1-4 ruling with Kennedy trying to thread the needle, ultimately ruling the wife cannot prevail in this case for some narrow reason (perhaps overruling or reconstruing part of Mandel in the process) – but also acknowledging that there’s a problem with a completely unchecked doctrine of consular nonreviewability (a problem left for someone else to resolve some day) while chastising mechanical reliance on databases (if consular officials are fallible mortals,  are the data entry clerks who populate the content of those databases somehow MORE reliable simply because they typed on a machine?).  The ultimate ambiguity is left to Congress to resolve (when they get around to passing some form of immigration reform).

Curious what others think.  I suspect at least 73 law professors and a few thousand lawyers disagree.

Edit history: a previous version of this post offered an even more ridiculous hypothetical, before it dawned on me that people, by and large, hate hypothetical questions, and a ridiculous one is easier to dismiss unreflectively.

Smartphone update: Samsung v. Apple (yet again)

A lawyer without his smartphone feels a bit like a disarmed gunslinger: the power of the smartphone means a great deal. Having gone through a half dozen phones in Riyadh, I’ve made a few discoveries over the years.

(1) “Global warranties” aren’t global. I bought an Apple iPhone 3gs in 2009. Loved it at first. Then the battery started malfunctioning. Took it to an Apple Store i Mn America, and was told since I bought it in the KSA, it wasn’t covered and I’d have to buy a new phone.

(2) Global warranties have “cute” exceptions. Both the iPhone and the Samsung that replaced it (a Galaxy S2) both had small print that indicated “operating at temperatures over 100 degrees may cause the battery to malfunction.” That’s 6 months out of the year in most of Saudi Arabia. Since I happened to use my phone outside and in a far too hot car, that also voided the warranty. (Both said I’d have to buy a new phone.)

(3) Phones are less a prestige item than they once were. Even in 2010, more than 10 months after it had come out, iPhones were “hard to come by” at Mobily or STC shops. On the street, you could find them, but you’d be taking your chances with a “sort of used” phone. In the stores, salesmen held them back for favored customers, or sold out to other resellers – either way, supplies through legit channels were unpredictable. Everyone wanted to jump on the same bandwagon (and Whatsapp/Skype/Twitter were taking off in a big way). Now? Yawn. It’s all there (esp. if it’s a 6-month old model). (When I first arrived in Saudi, in 2005, people were selling “special” mobile phone numbers – with multiples of the same digit, or whatever – for significant money – but I haven’t heard of that for years.)

And a part of me is wondering: mobile phones have been prominent fixtures of life in the Gulf for about 20 years now – much longer than in America (more comparable to Europe). Have people finally caught on to the disposable status symbol concept? It’s less about what you carry, and more about what you do with it?  I wonder if jaded Gulfis who’ve been living with these devices for years will prove to set cultural patterns ahead of their American counterparts (many of whom, after all, are barely on their 2nd or 3rd device now…)…