At one time Jack Townsend seemed to be sympathetic to the plight of innocent so-called Americans abroad. Lately, however, he seems to have forgotten that we even exist:
He gets right down moralistic in this post. I think lawyers are better arguing law than they are morals–but because there is sometimes a relationship between law and morals, I suppose he feels qualified to make moral statements:
Of course, the human race is communal. If not, we would not have a human race today. Throughout most of our history, wealth was transparent to the community — maybe not in the sense of finite bottom-line net worth, but the trappings of wealth were physical. We knew who the guys with wealth were and, in a sense, we knew how wealthy they were. And we could assess the community’s coherence and bonding by how people contributed to the community and were rewarded for doing so. With secret financial institutions for hiding wealth, we lose that ability to assess and, as a community, demand what is best for the community.
So, as readers who have read this far, will know. I think transparency is a good thing. FATCA is a good thing. And the global initiatives it and the U,S. spotlight on tax havens have spawned are good things.
I disagree. To begin with, Jack Townsend seems to reject Constitutional privacy rights. The Fourth Amendment has a history in English common law. Fourth Amendment derives from legal tradition summed up in the expression: “Every man’s home is his castle”. This expression meant that a man’s wealth was none of the king’s business nor even the community’s business. Mr. Townsend thus seems to reject the tradition that created the Fourth Amendment, which made private property truly private. The basis of private property, however, is even older. It goes back to Moses, who brought forth the tablets inscribed by the finger of God, “Thou shalt not steal.” “Thou shalt not covet.” The king needs an inventory of the citizens assets because he covets it, and because he covets it, he will eventually steal it–biblical examples of covetousness followed by theft include King Ahab’s theft of field of Naboth (1 Kings 21) and King David’s adultery with Bathsheba and subsequent murder of her husband Uriah the Hittite. FATCA is about laying bare the assets of citizens abroad so that the USA can more easily take what would otherwise be out of sight and out of mind. FATCA thus presents deeply troubling ethical breeches of centuries old legal tradition.
My response on his blog was as follows–if he approves it, it will eventually show up there:
This example of kleptocracy as you have applied it to FATCA is an example of the maxim, “Hard cases make bad law.” The kletocracy of a Nigerian dictator hardly justifies the terror of millions of alleged citizens of the United States who are resident abroad in their countries of citizenship but having clinging US nationality. FATCA, as it is currently being implemented, strips millions of alleged Americans of their citizenship rights in their countries of choice: for example, the “accidental American” who is a Canadian citizen living in Canada. They no longer enjoy equal protection but their governments or their banks, forced by the US Treasury, will rat out to the IRS their innocent and necessary financial accounts in their home and country of citizenship.
I know many people living in fear because they have no easy way to come into compliance with the IRS–many of them see IRS offers to come into compliance as merely different forms of tyranny. FATCA is not good. FATCA is evil, because these people are innocent, hard working taxpayers here in Canada who receive no benefits of US citizenship.
And besides, the forfeiture of 480 million in this case is accomplished without FATCA: “Through the Kleptocracy Asset Recovery Initiative, the Department of Justice’s Criminal Division denies kleptocrats like Abacha the fruits of their crimes, and protects the U.S. financial system from money laundering.” I.e., FATCA is not even in the picture. You can accomplish these kinds of goals without making bad laws that destroy the lives of millions of innocent people.