Sanctions against "human shield" upheld

In early 2003, as the United States was about to wage war with Iraq, Judith Karpova went to Iraq as a "human shield," among other reasons. She also wanted to bear witness to the economic sanctions imposed against Iraq and submitted journalistic articles to the Jersey Journal. The State Department found out about Karpova's trip and fined her $6,700 for violating the rules prohibiting U.S. citizens from engaging in certain interactions with Iraq. The Court of Appeals (Cardamone, Sotomayor and Katzmann) affirmed this fine in Karpova v. Snow, issued on August 14.

Karpova raised various challenges on appeal. First, she argued that the sanction violated the Administrative Procedure Act because the Penalty Notice issued to her was not clear and she was really being punished for acting as a journalist. But, while noting that the Penalty Notice was not a model of clarity in that it failed to explicitly set forth the basis for accusing Karpova of violating the regulations, it was not arbitrary and capricious for the government to believe that she had "engaged in transactions relating to travel in Iraq" in violation of the regulations, particularly since she admitted to the government that she was, in fact, traveling to Iraq. Her "journalistic exception" to the rules also failed as she admittedly went to Iraq to "defend Iraqi civilian infrastructure from bombing."

The most interesting claims were Karpova's constitutional challenges to the sanctions. She claimed protection under the First Amendment and the constitutional right to travel. But the Court of Appeals thought otherwise, finding that "weighty foreign policy" concerns overtake any right to travel to Iraq since the government in 1990 (when the sanctions were enacted) determined that Iraq posed a national security threat to the United States. Although I am certain that Karpova challenged that characterization of the Iraqi threat on appeal, the Second Circuit declined to comment. In addition, since the Constitution does not allow for unrestricted newsgathering, her First Amendment claim also failed as "Karpova was fined because of her actions in violating the travel restrictions, not for her speech." Moral of the story: challenges to U.S. foreign policy through litigation are difficult, if not impossible, to sustain.