Former AG Gonzales Echoes Industry on Foreign Bribery Enforcement
By Douglas Gillison | April 4, 2013 11:29 am

Former Attorney General Alberto R. Gonzales yesterday endorsed industry efforts to revise U.S. policy on foreign bribery enforcement, saying greater transparency would encourage compliance with the law.

Gonzales, who resigned in 2007 after two years marked by controversies, including the allegedly politicized dismissals of U.S. Attorneys, spoke at a Dow Jones & Company Inc. conference on corporate legal compliance.

“Business groups have certainly been clamoring for additional guidance for many years,” said Gonzales, currently an attorney in the Nashville, Tenn., office of Waller, Lansden, Dortch & Davis LLP. “I salute the efforts of business groups.”

Alberto Gonzales

Gonzales was throwing his weight behind a well-financed lobbying effort change both the Foreign Corrupt Practices Act, the law prohibiting foreign bribery, and the way the statute is enforced by the Justice Department and the Securities and Exchange Commission.

Gonzales’s successor, Michael B. Mukasey, a partner at Debevoise & Plimpton LLP, has been retained by the U.S. Chamber of Commerce specifically to lobby the SEC and Justice Department on FCPA enforcement.

Appetite for revising the statute waned on Capitol Hill while the agencies last year produced a guide on compliance. Corporate bribery scandals involving Wal-Mart Stores Inc. and GOP mega-donor Sheldon G. Adelson have also chastened lawmakers who had previously said they were amenable to introducing draft amendments.

Gonzales seemed to recognize this environment in his remarks, saying that despite the issuance of the “so-called guidance” more clarity was needed.

“I don’t see it coming quite frankly changes from Congress, certainly not during this administration. So long as you’ve got this president in the White House and I think the Democrats controlling the Senate, I think it’s going to be the status quo quite frankly,” said Gonzales.

“The question is quite frankly whether or not we can get some additional guidance or changes at the agency level, and of course at the Department of Justice.”

Gonzales endorsed a U.S. Chamber letter sent to the Justice Department and SEC in February calling for more detailed guidance on foreign bribery compliance. He also seconded the conclusions of former Deputy Attorney General George J. Terwilliger, now a partner at Morgan, Lewis & Bockius LLP, who called for greater transparency in cases where the Justice Department declines to prosecute.

Terwilliger made the arguments in a paper sponsored by the U.S. Chamber in October.

“One of the things that would be very, very helpful is to understand the reasons why our enforcement agencies decline to prosecute certain kinds of cases,” said Gonzales.

Gonzales also said he endorsed the decision by the administration of President Barack H. Obama to kill the American citizen Anwar al-Awlaki in Yemen in September 2011 after designating the Al Qaeda-linked propagandist an enemy combatant.

However he said the courts might object to such executive determinations in the absence of legal process.

“I don’t know that there are five votes in the Supreme Court that would agree with that assessment, that you, the President of the United States would have the authority on your own to say that Awlaki an American citizen is an enemy combatant,” he said.

While Gonzales was in the office of the White House Counsel, the administration of President George W. Bush pursued policies criticized as skirting judicial review to expand executive power, including government eavesdropping and imprisonment and interrogation of suspects in conditions that the Obama administration has banned as torture.

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