Understanding and Combating the Authoritarian Abuse of Interpol

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The International Criminal Police Organization – officially ICPO-INTERPOL, and commonly known simply as Interpol – plays an important role in international law enforcement, and its publications are often used in U.S. immigration and asylum cases. But neither Interpol nor its publications, including its famous Red Notice, are well understood. This can lead attorneys to fail to challenge Department of Homeland Security (DHS) assertions about Interpol that damage the interests of their clients, and cause judges to defer uncritically to Interpol publications in their decisions.  Moreover, some argue that Interpol is increasingly being abused – being used for political purposes – by authoritarian regimes, and these abusive Red Notices have long-lasting effects outside the courtroom, as well as in it. The more the U.S. legal profession knows about Interpol, the more it will be able to prevent and combat this abusive politicization of law enforcement, and prevent it from affecting the U.S. legal system.

Featuring: 

Theodore R. Bromund, Ph.D., Senior Research Fellow in Anglo-American Relations, Margaret Thatcher Center for Freedom, The Heritage Foundation

Thomas Firestone, Partner, Baker & McKenzie LLP

Moderator: Adam R. Pearlman, Former Associate Deputy General Counsel, Department of Defense

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's International & National Security Law Practice Group, was recorded on Friday, February 1, 2019, during a live teleforum conference call held exclusively for Federalist Society members.     

 

Wesley Hodges:  Welcome to The Federalist Society's practice group teleforum conference call. This afternoon's topic is "Understanding and Combating the Authoritarian Abuse of Interpol." My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the experts on today's call.

 

Today we are very fortunate to have with us an accomplished panel, and our moderator today is Adam R. Pearlman, who is the former Associate Deputy General Counsel at the Department of Defense and is a current Visiting Fellow at the George Mason University National Security Institute and a National Security Fellow at the Foundation for Defense of Democracy. After our speakers give their remarks today, we will move to an audience Q&A, so please keep in mind what questions you have fo0r this subject or for one of our speakers. Thank you very much for speaking with us today. Adam, the floor is yours.

 

Adam R. Pearlman:  Thank you, Wes. And to everybody on the call, thank you for joining us on what is a snowy afternoon in Washington D.C. for what I expect will be a very interesting conversation with two leading experts on issues related to the International Criminal Police Organization, which we all commonly know as Interpol. Our experts will go into greater depth, but in short, Interpol is an international organization of basically everybody except North Korea, the Western Sahara, and a few Pacific island nations. It's got 194 member countries, and facilitates the dissemination of requests for information or cooperation related to domestic law enforcement activities. It does this by a system of color-coded notices and less formal diffusions, the former of which are cleared and distributed through its headquarters in Lyon, France. It's most well-known for the Red Notice, which is a request to locate and provisionally arrest an individual, pending extradition. It's basically a fugitive hunting mechanism and what can possibly be bad about that?

 

Well, it's been increasingly recognized over the last several years that certain governments have leveraged Interpol notices in nefarious ways to, for example, disrupt the lives and movements of political dissonance or commercial competitors. Our speakers today will unpack these issues, discussing what exactly Interpol is, its purpose and structure and how it operates, what ways their processes have been abused, and what impacts that abuse has, both on international law enforcement efforts and domestic immigration and judicial process. We'll also discuss recent reforms within Interpol and developments in the United States that affect how Interpol notices are used by domestic law enforcement agencies, and the impact that Red Notices have on subjects who may have been targeted for illegitimate reasons.

 

We are fortunate to be joined today by an eminent scholar and a lauded practitioner. Ted Bromund is a Senior Research Fellow at The Heritage Foundation's Thatcher Center for Freedom. And Tom Firestone is of the law firm Baker McKenzie.

 

Now, Ted hails from Grinnell College in Iowa, which raised him to move on to develop quite the pedigree at Yale, where he earned two master's degrees and his Ph.D. in history. In a wise move by the university, they kept him there for a further nine years to teach history and international affairs before Heritage pulled him away in 2008. He's a widely published scholar and columnist, and currently has about as much to say about Brexit as he does on Interpol. And this seems to be his Interpol week, since he had a warm-up session with a distinguished panel earlier this week on a different event.

 

And for his part, Tom has had a storied career in this area. Breaking up his two stints at Harvard, college and law school, with a master's from Berkley, Tom spent 14 years in the Justice Department, first investigating and prosecuting organized crime as an AUSA in the Eastern District of New York, and then taking an extended tour as the resident legal advisor in the U.S. Embassy in Moscow. After earning several awards for his work in all things white collar in the Eastern bloc, he moved on to Baker Makenzie, where he now co-chairs its North American Government Enforcement Practice, and is a member of the firm's Global Compliance and Investigation Steering Committee.

 

Ted and Tom will each take about ten minutes to set the stage on Interpol, what is meant by Interpol abuse and describing the effects thereof, then I'll ask a few questions before opening the conversation to audience Q&A. So without further ado, Ted, the floor is yours.

 

Theodore R. Bromund:  Great. Thanks very much, and thanks to everyone on the call. I appreciate everyone joining in. Let me start off briefly by explaining what Interpol is and is not. And I think I want to start by explaining what Interpol is not. Essentially, it's not what you see from Hollywood. There are no Interpol agents out there carrying guns, breaking down doors, and arresting suspects. I'm told by Variety, the Hollywood newspaper, that in 2020 a movie Red Notice, starring Dwayne 'The Rock' Johnson and Gal 'Wonder Woman' Gadot, will be released. And I think that movie is probably going to be emblematic of the Hollywood image of Interpol because Variety reports that The Rock will play an "Interpol agent tasked with capturing the most wanted art thief in the world," who I imagine will be Gal Gadot. Well, that sounds very entertaining, but it's got no relationship with reality.

 

What is Interpol, actually? It's an international organization founded during the interwar years, but, essentially, re-founded after World War II, which operates today on the basis of a constitution drawn up in 1956 as amended several times since then. Technically, Interpol is an organization of police organizations, not of nations. But in practice it really is an organization of nations as such. It is, however, not part of the UN system. It's freestanding, separate, and technically older than the United Nations.

 

As already noted, it has 194 member nations. It's structured a little bit like the UN It's got a General Assembly, which in Interpol's case, is its supreme body. It's got a President, a 12-member Executive Committee, and a Secretary General who handles the day-to-day operational matters of Interpol, with the president helping to set the overall strategic direction of the organization. Finally, it's got a General Secretariat – its staff.

 

Interpol communicates with its member nations through National Central Bureaus, almost always abbreviating NCBs. These are located in each of Interpol's member nations. They are organized, run, funded, and staffed entirely by the member nation. They're not Interpol's branch in that country; they're the property of the government. In the United States, our NCB is co-managed by the Department of Justice and DHS.

 

The purpose of Interpol is really set out in its full name: it's the International Criminal Police Organization (emphasis added). And to quote Interpol's site, its purpose is to "ensure the widest possible cooperation between all criminal police authorities and to suppress ordinary law crimes" (emphasis added). The words criminal and ordinary are particularly important there. Interpol is based fundamentally on national sovereignty. It is not an investigative agency. Its publications have no mandatory legal force in its member nations, and it cannot tell its member nations what to do.

 

It's easiest to think of Interpol as a combination of a bulletin board and an email system. All communications on Interpol networks have to respect fundamental rules. First of all, its constitution. Secondly, its Rules on the Processing of Data, sometimes called the RPD. And third, any relative General Assembly resolutions. And that requirement to respect those rules applies equally to things put up on the bulletin board for everyone to see and the things that are merely sent over the email system.

 

There are three kinds of Interpol communications that listeners should be aware of. First, there are what are known as messages. These are just emails. Secondly, there are something called diffusions. This is the more structured kind of communication between various NCBs. These can contain any of a variety of different requests for information or requests for action. Diffusions are not reviewed prior to transmission by Interpol. Third, there are a series of colored notices, including the famous Red Notices. And all notices are reviewed by Interpol prior to transmission.

 

All of these communications flow over a series of Interpol-controlled communication systems, which came into being about a decade ago. And as Interpol has become more electronic, the number of actions taken through Interpol by its member nations has increased substantially.

 

We've already heard a definition of a Red Notice – a formal request for the location, identification, and provisional arrest of a named and identified individual accused of a particular offense and a pledge to seek the extradition of that individual. A Red Notice is not an international arrest warrant, which is what it is almost invariably described as in the media. Nor, in the United States, does a Red Notice meet the probable cause standard. Red Notices can be public – that is you can go to the Interpol website and see them yourself – or private. But that choice is made by the requesting NCB. A Red Notice has to contain the named defense and a statement of purported facts about the case, but a Red Notice is not based on any on-the-ground Interpol investigation precisely because Interpol is based on the sovereignty of its member nations. The requesting NCB is encouraged but is not required to provide an arrest warrant for a Red Notice.

 

Now, Interpol does make what it calls a "compliance check" before it publishes a Red Notice, but this is not a judicial process. It's an administrative procedure. Interpol operates on the assumption that its member nations are following the rules, so the compliance check focuses on ensuring that the form is filled out correctly.

 

As I noted earlier, notices and notice requests are required to respect Interpol's Constitution. The most important parts of that Constitution are probably Article 2, which requires Interpol to operate in the "spirit of the Universal Declaration of Human Rights". And Article 3, even more important, which prevents Interpol from being involved in anything that is political, racial, religious, or military. There is not a lot published on the meaning or interpretation of Article 2, the Universal Declaration of Human Rights Clause. Article 3 is commonly known as "the neutrality clause", and it's been the subject of a lot more discussion and commentary over the years, including a very useful Repository of Practice that was recently published by Interpol. And if anyone on the call has a professional interest in learning more about Article 3, the Repository of Practice is a useful place to begin.

 

Now, we often speak of Interpol abuse. What do we mean by that? By Interpol abuse, we mean Interpol communications or publications that did not respect the requirements of Interpol's fundamental rules. In many cases, this means that an abuse of Red Notice or an abuse of diffusion is political in nature. In other words, it's not concerned with an ordinary law crime. Reports from many government organizations, many NGOs, many international organizations, and many Think Tanks in the West have publicized problem—what I believe to be the growing problem—of Interpol abuse. And we can discuss the effects of politicized, and therefore abusive, Red Notices later.

 

But in closing here, I'd like to explain briefly how Interpol abuse happens. Simply put, it happens because the mechanisms for preventing it are very weak. I think they're five factors that we should keep in mind that lead to this conclusion. First, as I've already mentioned, Interpol is based on the sovereignty of its member nations. It recognizes, therefore, that all of its members are equal in their sovereignty. The United States signature on a treaty, for example, is worth just as much as New Zealand's or Greece's or any other nation's. Interpol, however, carries this belief one step forward and argues that because all of its member nations are sovereign and therefore equal, they are all worthy of equal trust. That is not necessarily a correct conclusion, but because Interpol is not an investigative body, it can do very little, indeed, to look behind the curtain and inquire into the quality of a nation's police or judicial systems.

 

Second problem: the rise of modern communication systems has led to a massive growth in the number of Interpol publications and communications. Interpol was put behind the curve by this growth, and it still is behind the curve.

 

Third, authoritarian nations are learning from each other. They're learning the interconnectedness of the worth. They're learning Interpol's modern communication systems. They're learning that the effects of Red Notice abuse are quite serious, and that obtaining a Red Notice is, actually, relatively easy; therefore, the problem of Red Notice abuse is increasing.

 

Fourth, the mechanisms for preventing or stopping Red Notice abuse are either ex post facto or they rely on Interpol receiving information in advance about potential abuse of requests.

 

And fifth, and finally, nations that do not abuse Interpol, like the United States, tend to take an "it works for us" approach. And so they're unwilling to police the system for fear of disrupting it, and thereby ruining the good work that it does for them.

 

In short, if you're an abusive nation and you're seeing a Red Notice on an individual, all you have to do is fill out an online form properly. If the case is not already controversial or the individual is not already well known, you are over 95 percent likely to get the Red Notice. Or alternatively, you can transmit a diffusion, which can contain the same content as a Red Notice and which has absolutely no checks on it at all, and it arrives nearly instantaneously. As Interpol itself states, "In a matter of seconds, member countries can draft and submit an alert seeking the arrest of a wanted criminal with the information recorded instantly into the Organization's central database, and immediately accessible to police around the world." Well with such a system, with Interpol's near universal membership, and given the consequences of a Red Notice and the prestige that it attaches to Interpol, Interpol abuse should really be no surprise at all.

 

So let me end there for opening and pass it over to my colleague.

 

Adam R. Pearlman:  All right. Tom?

 

Thomas Firestone:  Thanks a lot. First of all, I just want to thank Adam and Wesley for organizing this and for giving me the opportunity to speak. Ted's introduction was excellent. That really is a good overview of all the problems with Interpol. I come at this from a slightly different perspective than Ted. Ted's obviously a scholar and a great policy analyst. I am a lawyer and have represented a lot of individuals who have been the subject of Interpol Red Notices or who fear they may become the subject of Interpol Red Notice and have otherwise been subject to harassment by authoritarian regimes.

 

And I just wanted to talk initially about some of the practical consequences of the problem that Ted identified – the abuse of the Red Notices. And the problem is exactly what Ted said. It's extremely easy to put someone -- to get a Red Notice on someone. As he pointed out, you don't even need to produce an arrest warrant. So there's no requirement of probable cause showing. You can just send a statement to Interpol that you have charges against somebody, and as Ted pointed out, all they do is this minimal compliance check, which is an administrative procedure. It's not a substantive analysis of the charges and whether or not the evidence supporting the charges. And as he pointed out, 95 percent of cases you can get a Red Notice based on that. And when you don't get it, you can use a diffusion, which has even less preliminary review than does a Red Notice. So it's extremely easy to put somebody on -- to get a Red Notice against somebody.

 

And the consequences of that for the individual can be devastating. Now, maybe you're not going to be extradited and prosecuted in the country that's issued the Red Notice on you, but you're not going to be able to travel as a practical matter because you never know where you might get arrested based on this thing. So you're confined to whatever country you're in. It's almost impossible to do business because a lot of Red Notices are publicly available. They're right there on the Interpol site. Anybody doing due diligence on a business partner will check that site, and if they see that you've got a Red Notice against you, it's extremely hard to get anybody to enter into a business arrangement with you. It can be difficult to buy real estate, to open a bank account, all the other normal things that we do in our daily lives.

 

So basically with no probable cause showing, if a government is so inclined, it can ruin somebody's life. At the same time, as Ted mentioned as well, it's extremely hard to get off. So it's easy to put somebody on there. The consequences of being on there are devastating, and getting off is extremely hard. There is a mechanism by which you can appeal to Interpol. You can submit an application for delisting, essentially, explaining why you think the charges are politically motivated, relying on Articles 2 and 3 of Interpol's Constitution as Ted mentioned. But it is a long and arduous process. It's a difficult one. It's not a transparent one. You don't know what information the requesting state has submitted to Interpol. So you don't know what you're arguing against.

 

There are no public oral arguments. There are some case precedents, as Ted pointed out, this Repository of Practice which is now being published, which gives you something to work with in terms of precedent. However, those precedents are heavily redacted and it's very hard to use them to advocate on behalf of a client. So you've got a situation where it's easy to put someone on -- to get a Red Notice on someone. The consequences for that person are devastating, and it's extremely difficult for that person to get off. So this creates a situation that is ripe for abuse.

 

Now, we don't know what percentage of Red Notices are, in fact, fabricated for improper purposes. But we do know there have been a lot of recent cases, high-profile cases in which the Red Notices have been unsubstantiated in Interpol after a lot of litigation rejected them. So we do know that it is abused with maybe not -- in the majority of cases, maybe not even in 10 percent of the cases, but it should be zero percent. And it's abused enough to ruin some people's lives. And this is a problem.

 

And the bigger problem is even if it weren't abused that much on a day-to-day basis, as Ted pointed out, there's nothing preventing its abuse. So we've got a system out there, an international system out there which is ripe for abuse. And, as Ted also mentioned, authoritarian regimes learn from each other, and they are starting to learn these techniques and use them more and more frequently. So I think this is a serious problem that we as an international community need to address.

 

Ted talked a little about why the problem has gotten acute now, and I just wanted to add a couple thoughts to that. It wasn't such a problem -- we rarely heard about this problem 10 or 15 years ago. Now the problem with Interpol abuse is getting a lot of more attention. I think the recent dispute over the candidacy of the Russian national for the position of Interpol President, some recent reports that have been issued. This teleforum is a good example of the attention that is now being brought to bear on this. Ted recently formed a working group in Washington of experts on this subject, and I believe there've been Congressional hearings, and they're going to be more Congressional hearings on this issue.

 

So all of that is positive. The question is why now? Why in 2019 are we starting to see such attention to this issue? And I think that's a culmination of a number of different things that have been taking place over the last several years. Part of it I think has to do with 9-11. After 9-11, there was tremendous focus, appropriately so, on improving law enforcement cooperation internationally. And the focus here was on improving the speed of law enforcement cooperation and the ease of law enforcement cooperation—again, very worthwhile goals, especially in light of 9-11. But I think as often happens in life in trying to solve one problem, we inadvertently created another problem that we weren't focusing on. So by trying to facilitate law enforcement cooperation, we didn't pay sufficient attention the potential for abuse of that improved law enforcement cooperation. And I think we're seeing some of the consequences of that now.

 

I think another factor driving this problem is technological change, and Ted alluded to this also. Some technological changes within Interpol made it much easier to disseminate Red Notices. And I think the numbers of Red Notices have gone up—Ted will correct me if I'm wrong on this—from about 2,000 in 2003 to about 14 or 15,000 in 2016. If I'm not mistaken, there're about 50,000 Red Notices in circulation right now. So we've just seen a tremendous expansion in the use of Interpol Red Notices, and with that, we've seen a corresponding expansion in abuse. So more Red Notices means more unjustified Red Notices.

 

And I think a third factor that's driving with this when we look sort of big picture and step back at the trend in Interpol since it was created is the collapse of the Soviet Union. We saw during the Cold War the communist regimes really did not participate in law enforcement cooperation internationally and certainly not to the extent they are now. After the collapse of the Soviet Union, you saw a lot of new governments emerge that didn't exist before. A lot of these have gone in an authoritarian direction, and a lot of these have begun to use techniques -- sort of the affirmative have been to use their domestic legal systems affirmatively to harass political opponents and also to steal people's businesses, and sometimes in the same case to do both at the same time. And this domestic abuse of the criminal justice system for corrupt purposes, for politically motivated purposes, I think is spilling over internationally, and we see the manifestation of that in the abuse of the Red Notice system. That's not the only cause of it, and certainly, those are not the only regimes in the world that have been involved in abuse of the Red Notice system, but they are some of the -- we do see some abuse coming from some countries in that part of the world.

 

So I think that's one of the general trends. At the same time, though, I want to point out that the attention that Interpol has gotten and the attention that has been brought to the question of abuse of the Interpol system has also led to some reforms. And I would certainly recommend anyone's who's interested in this subject to read the two reports issued by Fair Trials on Interpol. There was one in 2013 and another one in 2018, which really flagged a lot of these issues. And as I understand, Fair Trials has worked cooperatively with Interpol to try to help them to solve some of these problems, and since their initial report in 2013, there have been some improvements at Interpol. The system for conducting preliminary reviews of Red Notices, while far from sufficiently thorough to prevent abuse, has improved since 2013.

 

As Ted pointed out, there are a lot more decisions that are now being published, albeit in a redacted form through this Repository of Practice. They've hired more people to work in the Commission for the Control of Interpol Files to review these -- to review the Red Notice applications. They've basically taken steps to protect those who've received asylum status or are applying for asylum status from being the subject of Red Notices.

 

So I think there have been some improvements. The body seems to be receptive to all of this criticism from the human rights community, and generally interested in improving itself. So I think those are all positive trends. But I think there's still a lot more that needs to be done, and just to throw out some ideas for the rest of our discussion is things that I think could be done. And I'll be particularly interested to hear what Ted thinks about these. I know he's got his own ideas for improving the system.

 

I think there could be just a higher burden of proof to get a Red Notice in the first place. There could be a requirement that an arrest warrant actually be submitted with the application for the Red Notice or a documentation, some sort of documentation of a finding of probable cause from a local court.

 

You could also require a certification from a high-ranking government official from the country requesting a Red Notice – the Minister of Justice, the Minister of Foreign Affairs – certifying that the case is legitimate and has not been brought for improper or political reasons. Again, that wouldn't stop the abuse but if there is a case of abuse, there'd be somebody held accountable, and it might deter some of the abuse on the front end.

 

Something else that one could do since the real purpose of Interpol is to prevent violent crime, transnational organized crime, drug trafficking, terrorism, you could limit the kinds of offenses that are available for Red Notices to those kinds of offenses. A lot of the abuse that we see involves white collar crime because it's motivated by the desire to take somebody's business away from them, or it involves non-violent crimes connected to political offenses. If you were to exclude those categories of offenses from the scope of Red Notices, I think you would cut out a lot of the abuse.

 

Something else that could be done would be to prohibit the use of a Red Notice when somebody's location is known. I mean, we've seen cases -- theoretically, the purpose of a Red Notice is to locate somebody. So if their location is known, then the requesting country can make a bilateral request for extradition. They don't need a Red Notice to be circulated publicly, and I think that something like that might also cut down the abuse. We've also seen cases where there is no request for extradition made, even though the person's location is known, which suggests that the Red Notice has been disseminated simply to harass and pressure the person rather than for the purposes of legitimate criminal prosecution in the requesting state.

 

So those are just some thoughts about what might be done, again, from the perspective of a practitioner who's represented individuals in these cases and has seen the effects that an unjustified Red Notice can have on someone's life. So with that, I'll wrap up my introductory part and turn it back to Adam and Wes to pose some questions to both of us.

 

Adam R. Pearlman:  All right. Thank you, Tom. Thank you, Ted, also. You know, Tom had mentioned using, perhaps, the appellate or delisting process of individuals who might have been targeted unfairly. Ted, how does that dovetail with the conversation on sovereignty and the corollary notion that anytime you strengthen an international organization that could be argued to impugn the sovereign rights and powers of individual countries, even on this illusion of a parity of sovereignty that all countries are equal? Does an environment in a time where there's a lot of really good arguments concerning possibly the decay of the sovereign nation as we've known it since the Westphalian Era, how do all of these little sub-issues tie together into Tom's suggestion as possible reforms?

 

Theodore R. Bromund:  Well, I think those are very, very deep reaching questions. Let me start off by saying that, first, I am a very strong supporter of national sovereignty, which I view is the only reasonable and democratic basis for the conduct of international relations. I would simply point out that Interpol cannot police, and really should not try to police, what its member nations do. Interpol can't stop China from running prison camps. It can't stop Russia from having a politicized system of justice. It can't stop a lot of other countries from being incompetent. The only thing it can do, and the only thing it really should do, is to police its own systems. It's not trying to control anyone else. It's not trying to impinge on their sovereignty. It's simply upholding its own rules internally, inside Interpol. And I think that is really an essential fact to keep in mind.

 

The broader question you raised really dovetails, I think, with something that Tom mentioned. In my view, it's going to be impossible to discourage nations from abusing Interpol unless there is some accountability for abuse. And that means that we have to be willing to make a sharper separation in Interpol—I would argue in a lot of other places—between the sheep and the goats. In other words, we may all be sovereign nations, but that does not mean that everyone gets an equal level of respect for having a functional and law-abiding police and judicial system. If Interpol cannot summon up the willingness to hold abusive nations accountable, not internally, but for their abuse of the Interpol rules which these nations signed up and pledged to respect, then the abuse will continue.

 

There are already provisions in the Interpol Constitution allowing Interpol to suspend the access to Interpol systems of abusive member nations. In my view, those provisions should be used. Interpol is also supposed to be controlled, ultimately, by its member nations. I, therefore, think the democracies of the world should act together much more firmly and decisively than they tend to do in order -- not to change Interpol's rules but to enforce and uphold the existing rules, which are, in fact, mostly fairly reasonable. But as long as we in the United States and other democracies don't do that, the rules are going to be overridden, not upheld, and abused by the authoritarian, and totalitarian, and incompetent nations of the world for the beneficiaries of their own corruption.

 

So I think there're lots of things we can do without getting rid of sovereignty or even reducing sovereignty in the world. It's more a question of the willingness of democracies to take action within the existing rules to make sure that Interpol fulfills the purpose that everyone has agreed to respect.

 

Adam R. Pearlman:  Tom, moving from the international policy and relations piece, take a second to talk about a little bit more about how Red Notices are handled here at home as a matter of procedure, and how they're looked at by immigration judges or district judges. Are there any domestic, judicial mechanisms by which there's a process here that somebody can undertake to undermine the effect of a Red Notice stemming from elsewhere?

 

Thomas Firestone:  I do want to answer that, but I just want to comment on a couple of points that Ted made. I think that Ted is absolutely right about the sovereignty issue and the fundamental issue here. He hit the nail on the head that a lot of countries do not respect the rule of law. And arrest warrants or Red Notices coming from certain countries should not be entitled to the same deference that Red Notices coming from other countries get because they're coming out of different systems with different protections -- different judicial protections, different levels of respect for the rule of law. But this is the system that we're stuck with.

 

His idea about suspending certain abusive nations is interesting, and as he points out, it is something that's already provided for in Interpol's rules. My concern with that, though, is I'm worried it might be cut a little bit too broadly. And I think we've got a fundamental problem here in that the countries that are most abusive of Interpol, corrupt ones where there is weak of rule, also tend to produce the most transnational organized crime where we most need cooperation. So countries that have a lot of corruption also have a lot of drug dealing. And so we've got a real dilemma here. Do we cooperate with them risk them abusing the Red Notice system, or do we not cooperate with them and risk missing cases against real drug dealers, real terrorists?

 

So I'll just throw that out there. I think it's an interesting idea, and as Ted points out, it is something that is already provided for in Interpol's rules, and something that's definitely worth considering.

 

I also wanted to mention two other ideas. Being a lawyer, I tend to like more procedural protections, limited protections. Two other ideas that Ted actually put forward in a couple of his writings, and I hope he'll comment on them. One is the idea of creating a white list of victims of Interpol abuse, and I think it would be great, when I look at my clients, if there were some mechanism by which we could go to the Justice Department or the State Department and get a ruling that an American citizen who is the subject of a Red Notice has been unfairly targeted, that the U.S. government considers the Red Notice to be unjustified, and get a document from them that would then allow them to travel freely throughout the world. I think that would really be helpful to real people who are victimized by this abuse on a real day-to-day basis.

 

And then something else Ted raised in another one of his articles was getting rid of Interpol's immunities because if you could hold Interpol accountable legally, I think that would really pressure them to do a better job on the front end of vetting these Red Notices, and we wouldn't have so much abuse. So I think those are very good ideas, worthy of consideration as we talk about how to improve the system and reduce abuses.

 

Coming back to your question about what weight an Interpol Red Notice gets in the U.S. legal system, as Ted said, it's not supported by probable cause. A Red Notice is just a statement by somebody at a national police bureau in a foreign country saying we've got charges against somebody, but there's no evidence by which you can evaluate whether or not this is a legitimate case. So I think a Red Notice should get minimal weight in the U.S. judicial system, and it should be considered sort of a lead or some evidence that can lead you to something, but nobody should be arrested based on a Red Notice alone in the U.S. because it doesn't meet our probable cause standards.

 

I understand there have been some cases in which ICE has taken the existence of a Red Notice as a basis to detain somebody or to deprive them of their immigration status. I have not studied the cases, but I would think that would be -- that is concerning to me, again, because the Red Notice does not meet our probable cause standards. And so I think it should be given some weight the same way a tip or a lead would be, but it should not have any sort of binding, legal effect in the U.S. without evidence meeting the probable cause standard.

 

Adam R. Pearlman:  Ted, I know that's something that you're particularly interested in, and we do mention DHS in the description of this program, more specifically ICE. Can you talk a bit more about that?

 

Theodore R. Bromund:  Yeah. Let me just respond very briefly here to Tom and the question of suspensions. This is something where I find myself more alone than I would like to be on the question of Interpol reforms. My justification for suspensions is that -- I agree. Russia is full of criminals. Unfortunately, the biggest criminals happen to be sitting in the Kremlin. And the idea that were is not for Russia's membership with Interpol, Russia would be full of criminals – human trafficking, and exporting drugs, and committing white collar crime – strikes me as a little bit strange. Interpol is not going to convince the Russians to turn over anyone that we might want to get our hands on if it's not in their interests. I place a much higher priority not on tracking down the guilty -- and after all, there are many ways to do that. It's not just Interpol. I place a much higher priority as far as Interpol is concerned on protecting the innocent. And unfortunately, I think that having nations like Russia as full members of Interpol leads to minimal ability to get our hands on the guilty and lots of potential abuse of the innocent.

 

And that leads me on to the question you asked about ICE. What I have seen, and I have worked a number of cases as expert witness where I've seen this problem in person, is that an individual leaves a foreign country because they are being targeted politically by that nation. They're usually a businessman, but not always. They come to the United States on a valid visa, travel visa, perhaps an education visa. They then get a Red Notice on them from their home country, let's just say Russia for ease of discussion. The Red Notice has the effect inside the United States of cancelling their otherwise valid travel documentation, which puts them into an immigration violation state.

 

Now, as Tom noted already, you can't arrest someone in the United States solely on the basis of a Red Notice because it doesn't meet probable cause. However, you can be arrested for not having a valid immigration status. So what happens when ICE is looking, as it is looking, and in fact it says this in its press releases, ICE "targets", quote/unquote, "targets" individuals who have Red Notices because it presumes they are foreign criminals. Well, with the Red Notice having cancelled the valid travel documentation, ICE now has a legitimate reason to arrest these individuals. They don't have a visa anymore.

 

So perversely, nations like Russia can use Red Notices to manufacturer legal offenses in the United States that can get someone who fled Russia arrested in the U.S. and held in jail. I have worked two cases where the individual concerned was held in a U.S. jail for over a year on the basis of nothing more than a Russian Red Notice. And although what Tom says about the legal status of Red Notices in the United States is completely correct, judges and sometimes attorneys, don’t know these facts.

 

Nor, for that matter, do DHS attorneys appear to know them. I have read DHS attorneys and judges writing things like "the only evidence against your client is a Red Notice. Red Notices increase the chance that this individual be a flight risk." All of these things are just blatantly incorrect. I mean, they're laughably wrong. But nonetheless, they are said and people lose their liberty as a result. I think it's a terrible outcome, when we have people fleeing the Putin regime in Russian who end up being detained in a U.S. jail solely on the strength of allegations of involvement in white collar crime, which are made on the basis of no evidence and, quote/unquote, "validated" by an Interpol Red Notice which comes from precisely the same people who are trying, successfully, to steal this individual's business in the first place. That is a really terrible state of affairs, and I find it impossible to defend.

 

Adam R. Pearlman:  And I know Tom has a lot to say about corporate rating. And the strange thing to me here with this discussion, and Tom, feel free to expand and go back if you want for a couple minutes, but the U.S. doesn't recognize convictions in extentia in other countries. And yet, there seems to be a practice of treating Red Notices, which are mere requests, as having some kind of evidentiary value or that they don’t. To what extent do we need to distinguish, moving forward, between the need to strengthen the reforms within Interpol, which we've talked about a little bit, and the problem here in the way that ICE may be honoring Red Notices without substantial review and a substantive review by the National Central Bureau to determine at the outset whether a Red Notice should lead to a detention in the first place?

 

Thomas Firestone:  Well, it's a great question. And to me, a Red Notice -- anything can be evidence – a statement by a foreign government official, or something. That can be evidence, and that's -- a Red Notice should be taken as that for what it is and no more. It seems to me the first thing we need to do is exactly as Ted mentioned – educate people. People don't understand. He started out by talking about people have this image of Interpol as this international police body that swoops in and arrests terrorists and returns them to justice. And it's not that at all. And they also think that an Interpol Red Notice is the equivalent of an arrest warrant, which, of course, it isn't.

 

So I think that if judges and lawyers are saying things like that, they need to be educated in the first instance. The irony of the situation that Ted's talking about, of course is you can't arrest somebody on a Red Notice because, as I said, doesn't substantiate, doesn't provide probable cause. But by doing what Ted is talking about, basically depriving someone of their immigration status and then arresting them for not having status, you're doing through the backdoor what you can't do through the front door. And that is a problem.

 

To say that a Red Notice is evidence that somebody's a risk of flight also makes no sense because if somebody has a Red Notice on them, they can't travel very easily. The last thing they're presumably going to want to do is flee the jurisdiction because they could get picked up and returned to the country where they're sought for prosecution.

 

So I think that what we need to do here if the practitioners in the U.S. are giving more weight to Red Notices than they are legally entitled to, we need to have an education -- we just need to have better education about this. And it seems to me that Interpol, until recently, was just this dark area of the law that people really didn't understand, and now with programs like this, there's a lot more awareness. But I think that really needs to be increased because we are seeing real problems. It's bad enough just at an international level. When these things are being used for improper purposes in the domestic U.S legal system, that's an even bigger problem.

 

Adam R. Pearlman:  Well, Wes, it sounds like we have fodder for a CLE program in the future. But in the meantime if you'd like to open the floor to questions, I'm sure we'd love to take them.

 

Wesley Hodges:  Well, thank you so much, Adam. It does look like we do have one question from the audience so far. Let's go ahead and go to our first caller.

 

Caller 1:  Good afternoon. Really terrific program. I’m calling you from over near Washington D.C. I have an active case now where my client has two Red Notices against him. But we're working on that. I would like to ask two questions. Can you talk more about suspension, you know, suspending access to Interpol systems, abusive nations, where in the Constitution we find that. And the other thing, I was wondering if you have any theories on -- and now I'm speaking about this Huawei executive up in Canada. About 60 days before she was arrested, the Chinese President, or Director General of Interpol, was suddenly removed. And I'm a conspiracy theorist, and I'm convinced the two events are related. I was just wondering if you all had any thoughts on that. So thank you all.

 

Theodore R. Bromund:  Well, I'll be happy to take a quick crack at that, and then Tom can chime in on adding whatever he'd like to say. First, on the question of suspension, this is provided for in Interpol's rules on the processing of data. And they're a couple of articles that apply here. Article 123, "Evaluation of National Entities" applies and Article 131(1)(c) "Corrective Measures Applicable to National Central Bureaus and International Entities" also applies.

 

So there are plenty of mechanisms for the Interpol Secretariat – that is the Interpol staff – to suspend member nations from access for Interpol databases for a period not to exceed three months. Anything longer than that has to go to the General Assembly. So I think it is very unlikely, although not impossible, that the General Assembly would suspend, let's just say Russia, for a year or, indeed, kick them out entirely. Although, I personally would not be opposed to either of those outcomes. But at a minimum, the democracies who are members of Interpol should be pushing Interpol Secretariat to apply at least three month suspensions to abusive member nations. If there is no deterrent power behind Interpol, why is anyone going to stop abusing the system? That's the question that I ask repeatedly.

 

Second, you asked a question about China. This is the story of the removal of Meng Hongwei, who was the former president of Interpol and has been replaced by a much better South Korean official in the most recent meeting of the Interpol General Assembly. I am not an expert in the Chinese communist political system. But it's my view that Meng fell afoul of the internal political of the communist party system, and that he had -- he was a protégé of the wrong individual, not of President Xi's. Over the past several years, quite a few individuals have been removed from the top of the Chinese communist party system for having the wrong leadership -- for being a follower of the wrong person. Meng appears to have been really no different, except, of course, he was President of Interpol, and that naturally attracted people's attention.

 

I am not convinced it had any relationship to U.S. concerns about Chinese infiltration of communication systems or much else. Nor do I think that Meng was directly and personally responsible for Chinese abuse of Interpol, which certainly does happen to a considerable extent. I think the significance of this, really, is that China is not a law-abiding nation, and its reasons for arresting and removing Meng were political. In other words, it showed the same attitude towards Meng – that is the substitution of political crime for genuine, ordinary crime – that Interpol's rules are precisely designed to prevent, and therefore indicated that it's quite likely, as we already know, to be the sort of place that really does abuse Interpol.

 

Thomas Firestone:  I'll just add a couple words on that. First of all on the suspension. Ted obviously makes a good point; there has to be consequences for countries that abuse Interpol. I would prefer to see the suspension done -- I'm not sure if this fits within the rules. I haven't looked at them, but I would prefer to see it done in a more gradual way. If there is going to be a suspension, I would prefer to see it as an initial matter being applied to a particular case rather than to all requests from that government. So we have seen cases in which governments have repeatedly abused the system in connection with a particular case or a particular subject or group of subjects. So if there's going to be suspension, I think that it should be case or subject specific as an initial matter in order to prevent the problem that I'm concerned about which is throwing out the baby with the bath water, saying we're not going to cooperate with Government X at all. We're not going to let Government X participate. We get rid of the political cases, but we also in the process lose some real cases. So I think if it can be narrowly tailored to specific cases, specific subjects, that would be better than a blanket bar.

 

If there is going to be a blanket bar, then I think the standard for that should be extremely high. There should be a demonstrable sustained pattern of abuse, egregious abuse, and it should be well documented, and voted on by some sort of larger body, as Ted indicated. But I think the standard for that should be extremely high, and it should be limited in duration. Again, because I'm just worried about overbreadth on these, but I think that there is a need for something to be done to hold abusive governments accountable.

 

As for the China situation, I have not studied it. I don't have enough facts to comment in any intelligent way on it. Whether there's a connection between those two events, I just don’t know.

 

Adam R. Pearlman:  Tom, when we talk about the abuse of going back repeatedly time and time again on the same case, hoping for different results, do you consider it to be abuse of the system if failing to obtain a Red Notice, a country goes and puts out a diffusion?

 

Thomas Firestone:  Oh, you mean if they have been denied a Red Notice.

 

Adam R. Pearlman:  Correct.

 

Thomas Firestone:  And then they put a diffusion on, essentially, the same facts, simply to get around the review process of a Red Notice? Yeah. I mean, if it's the same facts, the same subjects, and they've lost on the Red Notice -- okay, it didn't work that way. We'll try to do it this way so we don’t have the same level of scrutiny, that would seem to be abusive. Again, depends on the facts of the particular case, but if that's all they're doing, if it's the same things just . . . you know . . . what do you call it? Old wine in new bottles or doing the same thing going through a different door. That seems to me it would be an example of abusive, yes.

 

Adam R. Pearlman:  Wes, we can unpack that further unless we have another question.

 

Wesley Hodges:  The queue is empty, and looking at the time, I turn the mic back to you to expound on that or any other thoughts we have before we close the call today.

 

Adam R. Pearlman:  Well, I mean, Tom you can take this in one or two directions. I can press you on this just a little bit with an analogy of, I don't know, if a criminal forfeiture won't work, then it's somewhat controversial but legitimate under our system to go after somebody with civil forfeiture proceeding with a lower standard. How does that analogy match or fail, the hypothetical that I put forward a minute ago of failing to get a Red Notice and then just going ahead with a diffusion?

 

Thomas Firestone:  Again, it's always going to be very fact specific. I mean, in our system, there are different standards for criminal and civil forfeiture. And there's a reason there are different standards. But our system also recognizes the concept of bad-faith abuse of the process, and if what we're talking about is somebody who is submitting something as a diffusion simply because the Red Notice didn't work and there's no other legitimate reason for doing it, just simply to evade the scrutiny of a Red Notice, and the Red Notice is already proven to be fabricated, politically motivated, improper, and they're just surfacing up the same thing, again, with trying to get around the scrutiny requirements, that seems to me that could arguably be a case of bad-faith abuse of the process.

 

So it all comes back to whether or not the person is operating in good faith or bad faith, whether or not there's a legitimate reason for what they're doing. The hypothetical you gave it seems to me that there is no legitimate reason, and that could be bad faith absent evidence to the contrary.

 

Theodore R. Bromund:  Perhaps I could simply add briefly here that the hypothetical you've presented is not a hypothetical at all. We know that exactly what you suggested has happened already to Bill Browder, the famous Anglo-American investor, and we have very good evidence that after the attempt coup against the Erdogan regime in Turkey, the Erdogan regime attempted to request something like 60,000 Red Notices, simultaneously, from Interpol, which Interpol blocked. We know that the Turkish regime has, therefore, turned to diffusions on these individuals. So this is not a hypothetical problem.

 

I would also add, finally, that we've talked about the travel difficulties posed by a Red Notice. We've talked about ICE/DHS abuse. There's one more effect of a Red Notice which attorneys should be aware of. If the Red Notice is public, it will be picked up by banks under their know your customer, due diligence requirements. And most banks are unwilling to take the risk of holding an account associated with someone who has a Red Notice against them. So it's quite possible for you to be named in a Red Notice, to simultaneously lose your ability to travel, potentially to be arrested, and simultaneously to have your financial life ejected onto the street and all of your funds returned to you in the form of a cashier's check. And that makes it very hard indeed to carry on a normal life.

 

So a Red Notice in the right hands can be a very powerful and effective weapon. A Red Notice in the wrong hands is not a form of prosecution; it's a form of persecution. And losing your financial life is part of that.

 

Thomas Firestone:  And I would just add to that. It's not just your bank account. Ted is absolutely right. The bank will do KCY and you could lose a bank account, but anyone else you try to do business with will do due diligence on you, so you could lose all sorts of business relationships. You could lose your job. You're a professor at a university and the university sees this, they may not want somebody who has a Red Notice teaching at their university. So it can have all sorts of collateral consequences for people beyond simply the possibility of being arrested, detained when you're traveling. It can ruin your life even if you don't travel, and that's why it's so important that we focus on this and put in place appropriate protections and safeguards around the system so that it's not abused.

 

Adam R. Pearlman:  I think that's an appropriately strong final note as we close this hour out. And I thank you both for a fascinating discussion. Wes, you may do the honors.

 

Wesley Hodges:  Wonderful. Well, this has been an incredible hour and very thankful for your time. So on behalf of The Federalist Society, I'd like to thank each of our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining. The call is now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.