American Elephants

DOJ Bullies Have Beaten Gibson Guitars Into Submission by The Elephant's Child

When the cats away, the mice will play. Congress is out of town, minds firmly fixed on politics, campaigning and general vote-getting. Good time for the executive branch to slip through things that might otherwise annoy Congress.

So the Department of Justice, ( increasingly a reason to fire the Obama administration), announced yesterday that the Gibson Guitar Corporation had accepted a deferred prosecution agreement regarding the Department of Justice’s  allegation that Gibson imported wood for its guitar frets in violation of the Lacey Act. The Lacey Act is a federal law that makes it a crime to import flora or fauna in violation of a foreign nation’s laws. As a result, the Department of Justice will not charge Gibson with a crime (except for maybe a tax offense, left open) for “illegally importing ebony from Madagascar and ebony and rosewood from India” through a German intermediary “from June 2008 through September 2009.” Gibson, in return must pay a $300.000 fine, make “a community service payment of $50,000 to the National Fish and Wildlife Foundation” bulk up its internal procedures, and generally grovel whenever the government asks it to do anything related to this matter.

Heritage points out several features of the agreement worth mentioning:

First: The government acknowledges in the agreement that “certain questions and inconsistencies now exist regarding the tariff classification of ebony and rosewood fingerboard blanks pursuant to the Indian government’s Foreign Trade Policy.” In other words, the government acknowledges that the relevant law—not just our law, but a foreign nation’s law—is unclear. Ordinarily, that conclusion should lead the government to drop any charge that Gibson violated the law, especially the law of a foreign nation.

Second: The government’s case is no better regarding Madagascar. The agreement cites (1) “Madagascar Interministerial Order 16.030/2006,” and (2) some other equally well-known “laws”—all of which may have been written in a foreign language. The agreement alleges that Gibson received a translation (from whom is not stated) of the first whatever-it-is saying that “‘fingerboards’ are considered ‘finished’ under Madagascar law” and therefore may be exported. But, according to the government, “trip organizers”—who, for all we know, could have been Gibson’s trip companions “Greenpeace and other non-profit environmental groups”; the agreement does not say—informed Gibson that “under the organizers’ interpretation of [Madagascar’s] 2006 Interministerial Order, the harvest of ebony was illegal and that instrument part ‘blanks’ would be considered ‘unfinished’ and, therefore, considered illegal to export.” Put aside the obvious problems with government’s reliance on the opinion by the trip’s “organizers” of a foreign order written in a foreign tongue—Gibson was given conflicting views of the law. That should have ended the matter entirely. Remember: Gibson imported wood, not heroin.

Third: The press release is full of all of the chest-puffing that we are accustomed to see the federal government display: The government has enforced the law, prosecuted the wicked, protected the environment, cured the common cold, etc. But the government has made a federal case out of “fretboards” or “fingerboards.” …

Fourth: Gibson must pay the National Fish and Wildlife Foundation $50,000 for its (or its designee’s) use for the environment. Really? Fines paid to the government go into the U.S. Treasury and belong to the public; the NFWF is a private organization. In essence, the taxpayers are subsidizing the NFWF.

Why does it matter that Congress is out of town?  Why, because there are currently two bills before Congress that would have the result of repealing criminal provisions of the Lacey Act.

On the part of Gibson, they probably made a dollars-and-cents decision. An imperial administration can pretty much beat any poor sucker who gets in their crosshairs into submission.

In a July 19 article in the Wall Street Journal, Henry Juszkiewicz, CEO of Gibson,  explained his predicament:

The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC’s rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Customs allowed the shipment to pass through America’s border to our factories.

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren’t finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren’t finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

In America alone, there are over 4,000 federal criminal offenses. Under the Lacey Act, for instance, citizens and business owners also need to know—and predict how the U.S. federal government will interpret—the laws of nearly 200 other countries on the globe as well.

12 Comments so far
Leave a comment

Don’t you mean National Wildlife Federation, not Foundation?

Comment by Subsidy Eye

No. I mean Foundation. That’s what my reference says. Not a part of the government.

Comment by The Elephant's Child

Let me guess: your source was the Heritage Fondation. Unless you can produce a web page for such Foundation, then my explanation is that somebody at Heritage was just being sloppy.

Comment by Subsidy Eye

I don’t feel required to produce documentation for all your nitpicking, Subsidy. There were 3 articles from Heritage, 2 from the Wall Street Journal (both pretty picky about their fact checking) and one from a more ordinary news source. They specified the Foundation, and went on at some length to suggest more preferable charities. I could have added a long bit about asset confiscation by police departments and government departments, which often gets used for parties and entertainment, with examples, but chose not to confuse the story.

Comment by The Elephant's Child

Can Gibson deduct the $50,000 as a charitable contribution for tax purposes?

Comment by Lisa

Not very impressive, Child. Anybody who works with environmental NGOs is familiar with the National Wildlife Federation. It is pactically a household name. I have never heard of the National Wildlife Foundation, and I find no web site for it. So the mistake (assuming it is one: I concede that I could be wrong) appears to be pretty glaring. It would be like calling the National Geographic the National PresidentGeologic.

I ask a friendly, not an arrogant or critical question, suggesting that the reference to a NW Foundation was probably an error. Honestly, I expected your response would be “Oops; thanks, I’ve corrected it.” Instead, first you get snippy and then you accuse me of nitpicking.

This from somebody who is critical of almost any mistake made by environmentalists.

That other web sites have repeated the error should come as no surprise. That is the nature of journalism and blogging these days. When a writer does not even get the name of a major protagonist in his or her story, one has to wonder about the veracity of other facts.

Comment by Subsidy Eye from Lisa Halpin’s comment to the same post. I didn’t even have to Google it, which you could have done. Not the National Wildlife Foundation, the National Fish and Wildlife Foundation. You didn’t read carefully, but leaped to conclusions.

Comment by The Elephant's Child

Yup, haste makes waste. Sorry about that, and thanks for setting me straight. Somehow I read it as “National Wildlife Foundation”. Twice. And googled that name (not NFWF). Never heard of the “National Fish and Wildlife Foundation”, but clearly it exists.

Comment by Subsidy Eye

Good one, Lisa, and thanks for the link.

Comment by The Elephant's Child

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