1 Jerry Fowler is the President of the Save Darfur Coalition (SDC). Fowler was a board member of SDC in 2007, when SDC was advocating for passage of the Sudan Accountability and Divestment Act (SADA). On February 8, 2008, Fowler testified before the House Financial Services Committee about the presidential signing statement on SADA.

2 Zahara Heckscher, MA, is the Divestment Campaign Manager of the Save Darfur Coalition. Heckscher coordinated SDC's advocacy work on SADA passage in 2007, and currently coordinates SDC's advocacy work on SADA implementation.

3 The best known challenges to state divestment and procurement bans are Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (striking down Massachusetts’ Burma Act, a procurement ban); and Nat'l Foreign Trade Council v. Giannoulias,(N.D. 111., No. 06 C 4251, 2/23/07) (striking down Illinois’ Sudan divestment law). See also Carrier, Paul J.’ “The Intensifying Conflict between State and Federal Government Procurement Policy.” Michigan International Lawyer. 2005 XVII(3): 9-15.

4 Sudan Accountability and Divestment Act Pub. Law 110-174, (Dec. 31, 2007).

5 Congress and the Bush Administration concluded in 2004 that the violence in Darfur constitutes genocide as defined by the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. A UN Commission of Inquiry in 2005 did not find evidence of the requisite genocidal intent, but accused the Sudanese government of responsibility for crimes against humanity that “may be no less serious and heinous than genocide.” Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, Geneva, January 25, 2005 <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf>. For a discussion of the legal implications of these somewhat inconsistent findings, see Fowler, Jerry,’ ‘A New Chapter of Irony: The Legal Implications of the Darfur Genocide Determination.” Genocide Studies and Prevention 1:1 (July 2006), 29–40.CrossRefGoogle Scholar

6 The targeted model was developed by the Sudan Divestment Task Force (SDTF), a US-based, international nongovernmental organization. The SDTF publishes a quarterly report on companies that meet the targeted divestment criteria, available at <www.sudandivestment.org/reportrequest.asp> Virtually all of the NGOs promoting Sudan divestment use this model and the SDTF's research, as do the majority of states that have divested. Model legislation is available at <http://www.sudandivestment.org/docs/task_force_targeted_divestment_model.pdf>. The targeted Sudan divestment model mode differs from the blanket divestment models of the terror-free investment campaign as promoted by the Conflict Securities Advisory Group and of the South Africa divestment movement, which peaked in the 1980s. For details on the South Africa divestment campaign, see the African Activist Archive Project at <www.africanactivist.msu.edu>.

7 For example, the Rhode Island divestment legislation provides that it will sunset when federal sanctions against Sudan are lifted or “[fjhe Congress or President of the United States, through legislation or executive order, declares that mandatory divestment of this type provided for in this act interferes with the conduct of United States foreign policy.” State of Rhode Island 2007 - H 5142 An Act Relating to Public Finance -State Investment Commission-Investments in Sudan. Section 6. Paragraph (d).

8 The challenge was brought by the National Foreign Trade Council (NFTC), eight Illinois municipal pension funds, and eight beneficiaries of public pension funds.

9 National Foreign Trade Council v. Giannoulias, (N.D. 111., No. 06 C 4251, 2/23/07).

10 For example, the decision stated that the Illinois law did not exempt the regions of Sudan that are exempt from Federal sanctions. Targeted divestment laws do exempt these regions. The court also noted that the Illinois law did not provide exemptions for companies that have “specific licenses” from the president to do business with Sudan. Targeted divestment bills do contain such exemptions. Nat'l Foreign Trade Council v. Giannoulias, (N.D. 111., No. 06 C 4251, 2/23/07).

11 For a full analysis on the need for and constitutionality of SADA, see Memorandum on the Constitutionality of State Measures, Supported by Federal Legislation, Mandating Di-vestment of Public Funds from Certain Companies Doing Business in Sudan by Paul H. Schwartz and Jeffrey A. Smith, a partner with Cooley Godward Kronish LLP, to the Concerned Members of the Executive Branch and Congress of the United States, Nov. 27, 2006 (on file with the authors and available at <www.SaveDarfur.org/SADAdocs>).

12 Sudan Accountability and Divestment Act Pub. Law 110-174, (Dec. 31, 2007). Section 3.

13 Id.

14 Sudan Accountability and Divestment Act Pub. Law 110-174, (Dec. 31, 2007). Section 3. SADA defines state divestment to include bans on contracts.

15 Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).

16 Because the state law was broader in scope than congressionally mandated sanctions on Burma, and included no termination provision, the court found that the law would have created an obstacle to the President's discretion to “control economic sanctions against Burma.” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).

17 Sudan Accountability and Divestment Act Pub. Law 110-174, (Dec. 31, 2007) Section 6.

18 The pool of companies potentially affected by contract bans is larger, because it includes both publicly traded companies targeted for divestment (about two dozen) and privately held companies that meet the SADA criteria-a total of about 40 companies plus parents and subsidiaries. Of these, four companies are known to have had federal contracts in 2006 or 2007 that would not be eligible to be renewed because of SADA (To identify these companies, the Sudan Divestment Task Force Sudan Company Report November 30, 2007, was cross referenced with the Federal Procurement Data System, publicly available at <www.fpds.gov>, December 2007.) In addition, many more targeted companies have contracts on the state level.

19 Sudan Divestment Task Force, <http://www.sudandivest-ment.org/statistics.asp> (February 18, 2008).

20 Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney General of U.S. Department of Justice to Richard B. Cheney, President of United States Senate, Oct. 26, 2007. Letter from Jeffrey T. Bergner, Assistant Secretary, Legislative Affairs of U.S. Department of State to Barney Frank, Chairman, Committee on Financial Services of House of Representatives, July 30, 2007. Letter from Kevin I. Fromer ,Assistant Secretary for Legislative Affairs in Department of the Treasury to Barney Frank, Chairman, Committee on Financial Services of House of Representatives, July 30, 2007.

21 The original version of the legislation, known as the Darfur Accountability and Divestment Authorization Act, was authored by Representative Barbara Lee and passed the House 417-1 in July, 2007. Senator Dodd re-wrote the bill with minor changes, and introduced it in the Senate as the Sudan Accountability and Divestment Act. This was the version that eventually passed unanimously in both chambers.

22 Testimony of The Honorable Patricia M. Wald, Former Judge and Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, before the Committee on Financial Services of United States House of Representatives, Feb. 8, 2008.

23 Testimony of Paul H. Schwartz, Partner of Cooley Godward Kronish, LLP, before the Committee on Financial Services of United States House of Representatives, Feb. 8, 2008.

24 Signing Statement by the President George W. Bush to Office of the Press Secretary, Dec. 31, 2007.

25 February 8,2008 Hearing of the Financial Services Committee on “Negative Implications of the President's Signing State ment on the Sudan Accountability and Divestment Act.“

26 Testimony of The Honorable Patricia M. Wald, Former Judge and Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, before the Committee on Financial Services of United States House of Representatives, Feb. 8, 2008.

27 Testimony of Paul H. Schwartz, Partner of Cooley Godward Kronish, LLP, before the Committee on Financial Services of United States House of Representatives, Feb. 8, 2008.

28 In this respect, SADA stands in contrast to the Comprehensive Anti-Apartheid Act of 1986 Pub. Law 99-440, (Oct. 2, 1986) (CAAA), which applied more direct and forceful sanctions on South Africa, including prohibiting new investment in South Africa; the import of gold coins, uranium, textiles, or coal from South Africa; and the export of computers to South Africa. Despite these differences, there are quite a few parallels between the CAAA and SADA, including that both of these landmark foreign policy bills passed over the objection of the Executive Branch.

29 This text was reproduced and reformatted from the text appearing at the Government Printing Office website (visited January 25, 2008) <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=l10_cong_bills&docid=f:s2271enr.txt.pdf >

30 This text was reproduced and reformatted from the text appearing at the White House website (visited January 25,2008)<http://www.whitehouse.gov/news/releases/2007/!2/20071231.html>