Archives for May 2019

As Supreme Court Prepares to Hear Hernandez v. Mesa for a Second Time, It’s Unclear Whether Federal Officials Can Be Sued for Alleged Constitutional Violations

May 31, 2019 by Evan Schleicher Leave a Comment

On May 28^th, the Supreme Court agreed to hear for the second time a case which concerns whether the parents of a teenager killed by an American agent shooting across the Mexican border may sue that agent in federal court. The case originated from an incident in 2010, in which Jesus Mesa Jr., a U.S. border guard, shot 15-year old Sergio Hernandez Guereca in the head as he allegedly threw rocks at border guards. A January 2019 piece in the IELR goes into detail regarding the history of the case, noting that in 2015, “a divided panel of the Fifth Circuit declined to dismiss the civil action against Mesa, but the Fifth Circuit en banc reversed the panel, and ruled that because the boy was standing on the Mexican side of the border, his family could not sue. However, the US Supreme Court accepted certiorari, and remanded back to the Fifth Circuit. On March 20, 2018, the Fifth Circuit once again ruled against the decedent’s family and ordered the case dismissed. On June 15, 2018, the Hernandez family petitioned again for certiorari.”[1] While the Supreme Court did not issue a definitive ruling before remanding the case back to the Fifth Circuit, it is likely to do so after it hears arguments in the judicial term beginning in October.

It seems likely that the ruling in this case will hinge largely on the court’s interpretation of the relationship between this case and the 1971 decision in Bivens v. Six Unknown Named Agents, in which the Supreme Court ruled that congressional authorization is not always needed in suits against federal officials which claim violations of constitutional rights. Importantly, while the Supreme Court did not make a definitive ruling when it first heard the Hernandez v. Mesa case, it did clarify that the Bivens question was “antecedent” to that of the extraterritorial application of the Fourth Amendment or the excessive force concerns of the Fifth Amendment. Regarding the Fourth Amendment, the Court dismissed concerns by noting that Hernandez was not a citizen, stating that “disposing of a Bivens claim by resolving the constitutional question” has Court precedent. Regarding the Fifth Amendment, the Court stated that Mesa was entitled to qualified immunity from concerns over excessive use of force under the Bivens question. This claim, combined with the previous one, would ostensibly allow Mesa to avoid liability for any concerns, constitutional or otherwise, subsequent to the granting of his immunity. Thus, while it is increasingly clear that the Bivens question will be central to the ruling in this case when it comes back before the Supreme Court, it is also increasingly unclear whether or not the court will rule in favor of Guereca and his parents.

Since the 1980’s, the Supreme Court has rejected almost every Bivens claim it has evaluated and, with minor exceptions, the lower courts have followed suit. However, a recent case, Rodriguez v. Swartz, which has been described as a close analog, has marked a shift from this trend. Applying the question of constitutionality as related to the Bivens decision led the Ninth Circuit court to determine that Lonnie Swartz (a border guard) lacked qualified immunity in the shooting death of Jose Rodriguez because at the time of the incident it was established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person on the other side of the border. The Ninth Circuit applied the Bivens decision, but with a noted reluctance.

This reluctance emerged, in part, from another case, Ziglar v. Abbasi, which was originally about the Bivens claim of alien detainees who alleged abusive detention conditions. This original case indicated clearly that national security and immigration policy are relevant factors in determining whether to extend Bivens claims. In Rodriguez v. Swartz it was determined that, “although [the case] dealt with border enforcement, Rodriguez’s claim did not implicate national security. Holding Swartz liable would neither impermissibly impede border agents’ discretionary authority nor challenge government policy because Swartz’s use of force contravened federal regulations.” However, because of changing standards in immigration policy and in national security attitudes, specifically surrounding the border, this same decision cannot be automatically applied even to analogous cases.

In short, the resolution of this case is particularly important in determining if there will be any overarching standards regarding the applicability of Bivens claims to cross-border shootings. It is impossible, at this juncture, to predict how this case will be decided. Regardless, this case should be followed closely as it develops because it has the potential to affect many criminal and civil decisions moving forward.

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[1] Linda Ramirez, CBP Acquitted in Second Jury Trial, Bivens Action Still in Question, 35 Int’l Enforcement L. Reporter 23, (2019).

Evan Schleicher is the Editorial Intern for the International Enforcement Law Reporter. He is currently an MA candidate in Security Policy Studies at George Washington University, focusing on transnational security and humanitarian issues.

U.S. Issues Additional Indictments Against Julian Assange

May 29, 2019 by Alex Psilakis Leave a Comment

The fight over Julian Assange has shown no sign of slowing down.

In April 2019, the IELR Blog reported on the arrest and potential extradition of Julian Assange. Upon gaining asylum status in 2012, Assange resided in the Ecuadorian embassy in London. However, almost immediately after having his asylum status revoked in April 2019, British authorities arrested Assange for his previous refusal to appear before the court. The U.S., which had released a sealed indictment against Assange in March 2018, unsealed the indictment and lobbied for his extradition. The U.S. charged Assange with conspiracy to commit computer intrusion, claiming that he worked alongside Chelsea Manning in an attempt to hack into and steal classified U.S. documents relating to the wars in Iraq and Afghanistan.

In May 2019, Assange’s case became more complex when Sweden expressed their desire to extradite him as well. Sweden originally sought Assange’s extradition from the UK in 2010 on rape allegations. Though the UK courts approved Sweden’s request, Assange’s acquisition of asylum status prevented the UK from carrying out the extradition. Sweden continued their investigation into Assange until 2017, believing that, as long as Assange remained under the protection of the Ecuadorian embassy, no substantive process could be made in the case against him. That changed when Ecuador stripped Assange of his asylum status. Sweden reopened their case against Assange, and made clear their interest in his extradition. Yet with the U.S.’s competing claim, it lies in the hands of UK Home Secretary Sajid Javid to decide who, if anyone, will receive Assange.

On May 23, 2019, the U.S. raised the stakes, charging Assange with 17 additional crimes in violation of the Espionage Act. According to the indictment, the U.S. has charged Assange with conspiracy to receive national defense information, obtaining national defense information, and disclosure of national defense information, all alongside the initial charge of conspiracy to commit computer intrusion. The indictment stresses that Assange generally directed Manning to steal vast number of secret documents, including State Department cables, documents on the wars in Iraq and Afghanistan, and Guantanamo Bay Detainee assessment briefs. Manning initially released these documents, the indictment notes, in response to a list published by WikiLeaks titled “Most Wanted Leaks” in 2009. Eventually, she entered into direct communication with Assange. For example, when Manning noted that she may have run out of classified documents to illegally disclose, Assange noted, “curious eyes never run dry.”

The decision to expand the indictment against Assange has sparked serious controversy, with many believing the move an attack on press freedom. Though the Obama administration considered prosecuting Assange under the Espionage Act, they chose not to do so. Nevertheless, presidential administrations have applied the Espionage Act more frequently since George W. Bush’s second term. But even as administrations have recently turned to the Espionage Act, they typically prosecute officials that provide confidential information to outside sources, not the outside sources themselves. No outside source, such as a journalist, has even been prosecuted under the Espionage Act. In 2005, two lobbyists representing a pro-Israeli group received and transmitted confidential information relating to U.S. policy regarding Iran. While the U.S. attempted to prosecute them under the Espionage Act, they dropped the charges after a number of unsuccessful pretrial rulings. The Department of Justice (DOJ) did not state why they have decided to prosecute Assange under the Espionage Act. Instead, they have remained consistent in their main argument: WikiLeaks’ publication of confidential U.S. documents has endangered people.

There is potentially truth to this claim, though it is difficult to confirm. In 2010, the Taliban stated that they reviewed confidential documents published by WikiLeaks to assist in finding and “[punishing]” Afghan informers. New York Times reporters that dug through the released WikiLeaks files uncovered documents that gave away the names or identifying characteristics of dozens of Afghan informants, as well as potential defectors and individuals who cooperated with U.S. and NATO personnel. Even though Assange claimed to have withheld 15,000 of the approximately 92,000 documents published by WikiLeaks in the hope of protecting the identities of at-risk individuals, the documents still released information that risked revealing their identity, including the names of villages in which they resided, as well as their fathers’ names. Assange accepted no blame for publishing these documents, stating that, “if there are those names there, and they are at risk, this would be because of a misclassification by the U.S. military itself.”

Even with these potential consequences, many are skeptical of the DOJ’s broad application of the Espionage Act, as well as the effect that it will have on press freedom. Some legal minds have criticized portions of the Assange indictment for targeting “pure publication” – that is, the act of simply releasing the documents, not promoting their spread. Although Assange may have put individuals at risk with the WikiLeaks publications, the Espionage Act – which targets publication – would likely have been applied, albeit based around a different argument, even if specific individuals were not made at risk. The U.S. government has targeted individuals and news organizations based on the pure publication theory, but each case has fallen apart in light of First Amendment concerns.

It is possible that the UK will refuse to extradite Assange to the U.S. based on these charges. According to the U.S.-UK extradition treaty, the UK may bar extradition to the requesting state if they seek the respective individual based on their “political opinions.” This exemption, known as the political offense exemption, may well apply to Assange. Legal experts have noted that espionage-related charges typically fall under the political offense exemption, meaning that such circumstances may prevent the U.S. from receiving Assange. The U.S. has until June 11 to submit their official request for extradition to the UK. After the submission, the U.S. will no longer be able to issue any additional charges against Assange. Once both sides pass that technical hurdle, the debate will begin in earnest.

Before the U.S. may try Assange, the UK must decide where – if anywhere – they will extradite him. Sweden’s rape allegation against Assange was initially viewed as more serious than Assange’s single allegation of conspiracy to commit computer intrusion. However, the U.S.’s issuance of 17 additional charges may force the UK to reconsider such a position. Simultaneously, these additional steps may have crippled the U.S.’s chances of receiving Assange because of the conflicts they create around the political offense exemption. As Assange remains in a British holding cell, the U.S. – and the world – will continue observe and react to his case, considering issues including freedom of speech and national security.

For whatever comes next, the IELR Blog will be there to monitor it.

Former Somali Commander Found Liable for Torture Under The Torture Victim Protection Act

May 23, 2019 by Alex Psilakis Leave a Comment

In April 2019, the IELR Blog reported on the federal civil case against Colonel Yusuf Abdi Ali, the commander of the Somali National Army under the Said Barre military dictatorship. Somali Farhan Warfaa brought the case against Abdi Ali (known as “Tukeh”) under the Torture Victim Protection Act. Warfaa alleged that Tukeh tortured and interrogated him, then shot him five times at point-blank range, leaving him for dead. Warfaa also argued that Tukeh targeted he – and his village – because of their ethnic status as members of the Issaq clan. Tukeh did not only target Issaq villagers, but even soldiers within his own army, dismissing his troops that belonged to the ethnic group and sending them to the city of Hargeisa, where they faced their likely execution. Some estimates claim that as many as 200,000 people were massacred under the Said Barre dictatorship, but that number is impossible to prove, and may be higher.

On May 21, a federal civil grand jury in Northern Virginia found Tukeh liable for the torture of Warfaa, though not for the attempted extrajudicial killing. As a result, the jury has ordered Tukeh to pay Warfaa $400,000 in compensatory damages and $100,000 in punitive damages. Those that testified during the trial included Warfaa and a number of relatives, alongside an additional torture victim and two former soldiers that served under Tukeh.

Kathy Roberts of the Center for Justice and Accountability, who served as Warfaa’s attorney, praised the decision. “We’re thrilled that the jury came back and found that our client had in fact been tortured,” she said. “It’s a good verdict; it stands for the principle that no one above the law. Our client is very happy.”

Tukeh’s attorney, Joseph Peter Drennen, criticized the decision. “Yusuf Abdi Ali was held liable because he was a commander in an army that served under a regime that had a poor human rights record,” he stated. “But aside from the plaintiff’s testimony, there was virtually no evidence that Ali tortured anyone.”

In recent weeks, the scrutiny against Tukeh has extended outside the courtroom. On May 15, CNN reported that Tukeh has worked as an Uber driver for the past year and a half, and previously worked as a Lyft driver as well. CNN reporters went undercover to speak to Tukeh, who they learned had a nearly perfect rating of 4.89 out of 5 with Uber, making him an “Uber Pro Diamond” driver. Tukeh claimed that he had no trouble passing Uber’s background check. Checkr, a separate company, typically performs Uber’s background checks, investigating outlets including national sex offender databases, as well as federal and local court records and databases. Since he has never faced criminal charges in the U.S., he passed such checks without issue. Uber has strengthened their background check policy in the last year, and banned Tukeh from driving with the service.

These events echo those of 2016, when CNN reported that Tukeh – known as an alleged war criminal – was working as a security official at Dulles International Airport, located just outside Washington, DC. He was fired soon after the story broke. The fact that he served as security official, even though he was publically known as an alleged war criminal, is stunning.

However, for Warfaa, and the Center for Justice and Accountability (CJA) more broadly, this ruling is a great victory. Warfaa has spent the past 15 years seeking to hold Tukeh accountable, arguing in court after court for his case to be heard. Though a previous federal court ruling prevented Warfaa from suing Tukeh under the U.S. Alien Tort Statute, he continued to seek remedy under the Torture Victim Protection Act. On May 21, he finally earned that remedy. To the CJA, meanwhile, this decision represents their third success in recent years. Alongside Warfaa, the CJA has filed suit and won damages for victims from General Mohammad Ali Samantar, a former Somali Prime Minister, as well as Col. Abdi Aden Magan, the former Chief of the Somali National Secret Service.

While Tukeh may appeal the decision, the case – as it currently stands – is complete. Nevertheless, its impact will carry on, as this ruling, alongside CJA’s other victories, showcase how the U.S. is far from a safe haven for alleged war criminals. Laws like the Torture Victim Protection Act serve as effective outlets for victims to find justice when it eludes them elsewhere. This case also shows the important work of non-governmental organizations, such as CJA, that focus on victims of torture and help them prosecute cases.

U.S. Attorney General Announces Continued U.S. Funding of Law Enforcement Efforts at 3rd Ministerial of Northern Triangle Attorneys General, as Guatemala Prepares to Abolish Anti-Corruption Prosecutor

May 19, 2019 by Bruce Zagaris Leave a Comment

On May 16, 2019, U.S. Attorney General William P. Barr, during the 3^rd Ministerial of the Northern Triangle Attorneys General announced that, as part of a coordinated law enforcement action known as Operation Regional Shield,President Trump has approved continued funding for law enforcement efforts between the U.S. and the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

In particular Barr said the U.S. will continue fund law enforcement efforts, through the ongoing work of the project’s law enforcement efforts, through the continuing work of the U.S. Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) Resident Legal Advisors in each of the three countries, through the FBI’s Transnational Anti-Gang teams, through the Drug Enforcement Administration’s Sensitive Investigative Units, and through Homeland Security’s (HSI) work to counter human smuggling and trafficking.

Barr said the meeting has reaffirmed his belief that the safety of the citizens of the U.S. and Northern Triangle is interdependent and together they will not only confront but will defeat the criminal gangs.

Inconsistency of U.S. Enforcement Policy with Northern Triangle Countries

In recent months the Trump Administration’s policy in terms of cooperation with the Northern Triangle has not been consistent. For instance, on March 28, 2019, then Secretary of Homeland Security Kirstjen M. Nielsen signed, on behalf of the United States, a Memorandum of Cooperation (MOC) on border security cooperation in Central America. Almost simultaneously, U.S. President Donald Trump said that he was planning on cutting U.S. assistance to the three countries and has threatened to close the border with Mexico.

The initiatives of the U.S. and other governments against transnational organized crime in Central America can be classified in eight areas: whole-of-government solutions; interdiction of criminal flows; targeting of transnational criminal organization leaders; use of the military in a domestic law enforcement; institutional reform within law enforcement; targeting the financial flows and resources of organized criminal groups; prison control and reform; and binational and multinational cooperation against organized crime. (See R. Evan Ellis, Transnational Organized Crime in Latin America and the Caribbean 103-4 (2018).

During his trip Barr highlighted DOJ priorities, including interdicting illegal narcotics, dismantling MS-13, the 18th Street Gang and other transnational criminal organizations, and combatting illegal migration and human trafficking. While in El Salvador, the Attorney General visited the International Law Enforcement Academy.

Effort of Guatemalan Morales Administration to End the Work of the International Commission against Impunty (CICIG)

One setback for the fight against anti-corruption is the effort by the current Guatemala Administration of Jimmy Morales to terminate the work of the International Commission against Impunty (CICIG), which the United Nations established to strength the efforts against organized crime and corruption after Guatemala’s 36-year civil war. See Elisabeth Malkin, Latin America Risks Losing Potential Weapon Against Corruption, N.Y. Times, May 19, 2009, at 10, col. 1.

On May 15, the Guatemala high court rejected the appeal of Thelma Aldana, a crusading former prosecutor, to participate in Guatemala’s presidential election. As a result, at least two of the top three candidates, according to polls, will not be able to run in the election. The decision on Aldana seemed to arise from fears over her zealous prosecutions of corruption in politics and business. Aldana has been denied the right to participate in the election because she lacked a document accrediting that she did not have any outstanding accounts after she was responsible for public funds during her serving as from her time as a former prosecutor.

The Trump Administration has not supported the CICIG, as prior U.S. Administrations have. As a result Morales’ announcement to not renew the CICIG’s two-year mandate in September 2019 and his denial of Ivan Velázquez, the Colombian head of the Commission, in September 2018, mean that, notwithstanding its strong record of prosecuting corruption and transnational organized crime, the lack of independent prosecutors in the Guatemalan government, and the importance of strong and independent prosecutors to better stabilize the security situation in Guatemala, the CICIG may well expire in September. Indeed the enormous security problems due to the proliferation of gangs, gun violence, and corruption fuel migration from Guatemala.

The US Takes Action against North Korea over Alleged International Sanctions Violations, Seizing a Shipping Vessel

May 16, 2019 by Evan Schleicher Leave a Comment

On May 9^th, the United States seized a North Korean shipping vessel, the Wise Honest. Supporting this action, the FBI’s New York Field Office and the Attorney General’s office filed a civil forfeiture complaint against the ship, citing violations of international sanctions and international law. According to a press release by the US Department of Justice, from approximately November 2016 through April 2018, the Wise Honest was used by Korea Songi Shipping Company, an affiliate of Korea Songi General Trading Corporation (a.k.a. “Songi Trading Company”), to export coal from North Korea to foreign purchasers and to import machinery to North Korea in clear violation of US and UN sanctions regimes. North Korea responded to these claims on May 14th with a statement calling the seizure of Wise Honest a “flagrant act of robbery” that violated the informal agreement reached by President Trump and Kim Jong Un last year.

There are a number of complicating political, economic, and social factors in this case, but, for the purposes of clarity, this post will look exclusively at the legal aspects of the ship seizure. Specifically, it will try to establish whether the US has a legitimate legal basis to seize North Korean property or whether this is, in fact, a “flagrant act of robbery”.

The first potential complicating factor in determining the legality of US actions is the fact that the ship was interdicted by Indonesian authorities and then transferred to American Samoa by US authorities. Given the cooperation of the Indonesian government in handing the ship over, this is actually not a terribly complicating factor. The only sovereignty issue arises from the seizure of a North Korean vessel without Democratic People’s Republic of Korea (DPRK) permission, but this point is moot if there is a proven violation of international sanctions. This is so because 28 U.S. Code § 1355(b)(2) allows district courts within the United States the authority to bring an action or proceeding for forfeiture of vessels or cargo held in foreign countries if those vessels or cargo enter a “port of entry closed by the President in pursuance of law”. Because there is clear evidence that this ship helped to violate the international sanctions regime by exporting coal to foreign ports of entry “closed by the President”, this section of US code applies, giving the US government the authority to interdict Wise Honest, despite DPRK protestations.

Next, the tactics used by the US government are not unique to international sanctions enforcement and are commonly used in connection with unilateral sanctions regimes. In fact, the use of civil asset forfeiture complaints to enforce sanctions regimes has been common in US policy, though this situation represents the first time that a physical asset has been seized from the DPRK. However, despite the commonality of this approach in such cases, application of civil asset forfeiture complaints to sanctions violations remains extremely complex, given that US law on civil forfeiture specifies that complaints filed in the United States must be based on some underlying crime that violates specifically enumerated US laws. The question becomes: have US laws been violated?

To answer this question it must first be noted that the US has imposed unilateral sanctions which are often stricter than those imposed by the UN Security Council, making it very likely that DPRK actions violated US-specific laws and codes, in addition to those imposed by the international system. Three American banks were complicit in transmitting payments around the world for maintenance, equipment, and improvement of the Wise Honest, and thus assisted in the violation of sanctions. According to the Justice Department, such transfers constitute a specific provision of services by U.S. banks and longstanding U.S. law prohibits banks from providing such services to North Korean parties. The specific sections of US code that restrict services to North Korean parties can be found in the North Korean Sanctions and Policy Enhancement Act of 2016 and in the Countering America’s Adversaries Through Sanctions Act of 2017. Given that there is a direct connection between these US institutions, the Wise Honest, and the violation of sanctions, there is certainly standing both to seize the ship and to hold these financial institutions legally accountable, although they were “unwitting” actors.

In conclusion, despite the obviously political nature of the US government’s move to interdict the Wise Honest, it is important to note that there is a strong legal basis for the action. However, there is a looming danger that the overlap between legal and political realities could easily lead to the misuse of legal systems in pursuit of broader political aims. Specifically, there are already murmurings from within the US government that have indicated a desire to seize many other ships and assets, which could lead to increasingly dubious legal arguments being used to attack DPRK assets. In the coming months, as this story develops, it will be important for those interested in international legal issues to keep an eye on this situation to ensure that legal standards are upheld and that the legal system is not hijacked in the name of a political agenda.

Alongside – and Potentially in Conflict with – the U.S., Sweden Seeks Assange’s Extradition

May 14, 2019 by Alex Psilakis Leave a Comment

Last month, the IELR Blog reported on the arrest and potential extradition of Julian Assange. Assange, who had been granted asylum status by Ecuador in 2012, lived in the London embassy for seven years. President Moreno of Ecuador revoked his asylum status in April 2019, and hours later, Ecuador allowed British authorities to enter the embassy and arrest Assange for his failure to surrender to the court in a previous case. After the arrest, British authorities noted that they detained Assange partially on behalf of the U.S., who sought the extradition of the WikiLeaks founder for conspiring to commit computer intrusion alongside Chelsea Manning. Though Assange has since been convicted for his failure to obey the British courts and the U.S. is moving ahead with processing their extradition request, recent developments have complicated the matter further.

On May 13, 2019, Swedish prosecutors announced the reopening of their investigation into Julian Assange on rape allegations. The allegations first came to light in 2010, when Assange traveled to Sweden and was accused by two separate women of sexual assault and misconduct. Assange remained in the UK as the 18-month case progressed. When his extradition to Sweden appeared inevitable, Assange took refuge in the Ecuadorian embassy, and eight weeks later, he acquired asylum status, allowing him to remain in the embassy and elude legal ramifications for the time being. Though Swedish authorities continued their investigation into Assange at this time, they dropped a number of charges against him in 2015, including molestation and unlawful coercion, as the statute of limitations expired. In 2017, they halted their rape investigation as well, believing that – with Assange still protected by his asylum status in the Ecuadorian embassy – they had exhausted all options to achieve his extradition.

Upon his eviction from the embassy and arrest by British authorities, however, Sweden immediately took a renewed interest in the case. Speaking to the media, Swedish prosecutor Eva-Marie Persson noted that, “conditions have changed in the case and I believe that there are again opportunities to push the matter forward.” Persson hopes to further question Assange regarding the allegations, and is considering doing so via video link from the UK, but only if Assange agrees. With the statute of limitations on the rape charge set to expire in August 2020, Swedish authorities have wasted little time in pursuing the case since Assange was removed from the Ecuadorian embassy.

Yet with the U.S. already seeking Assange’s extradition, the additional request by Sweden has added a further layer of complexity to the issue. According to Article 16 of the Council of the European Union Framework Decision 2002/584, the executing EU Member State – in this case, the UK – makes the ultimate decision on which request to carry out, considering factors including the chronology of the requests and the severity of the allegations. Although Sweden was first to seek Assange’s extradition, their decision to remove their request means that the U.S. is now first in line. However, British officials are likely to treat rape as a more serious crime than computer intrusion. Home Secretary Sajid Javid will make the official ruling on behalf of the UK.

The U.S. may also make the argument that the charges against Assange relate specifically to national security. Were Sweden to receive Assange from the UK, the U.S. could eventually seek his extradition from Sweden.

The recent decision by Sweden to pursue Assange’s extradition raises a simple, yet important, question in international enforcement law – what happens when two countries seek the extradition of the same individual? Though both sides still need to make their case to the UK, as the U.S. is still finalizing its arguments and Sweden is soon to issue a European Arrest Warrant (EAW), both cases have merit: the U.S. has the longest standing claim to Assange, while Sweden has what many argue is a more serious allegation against him. It will be worth monitoring the situation as it progresses to consider what factors, if any, play a role in deciding where Assange ends up. Both the U.S. and Sweden have long-standing claims against Assange, so it is unlikely that one state will withdraw their request for the benefit of the other. What state has a stronger claim – and where the favor of the UK Home Secretary lies – remains to be seen.

Trump Tightens Asylum Rules to Curb Migration

May 3, 2019 by Alex Psilakis Leave a Comment

On April 29, 2019, President Trump issued a memorandum to Attorney General William Barr and Acting Secretary of Homeland Security Kevin McAleenan. Within the memo, President Trump outlined a number of policies meant to tighten immigration and asylum rules, while lowering the vast number of asylum seekers attempting to enter the U.S. One such policy calls on immigration courts to process and offer final administrative adjudication on all asylum applications within 180 days of their filing. The memo also proposes implementing an asylum application fee, as well as a fee for asylum applicants seeking to attain employment authorization while they wait for their application to be processed. Furthermore, the memo calls for new regulations that prevent migrants who have entered the U.S. illegally, or have attempted to do so, from acquiring or retaining employment authorization. The president has given the Attorney General and Acting Secretary of Homeland Security 90 days to carry out these reforms.

The president’s proposed policy reforms have sparked their fair share of controversy. “There’s a reason that we give people work permits while they are waiting for asylum,” said Michelle Brané, director of migrant rights and justice at the Women’s Refugee Commission, “[its] so that they can support themselves and don’t have to be depending on government assistance during that time.” Ms. Brané further questioned the Trump administration’s decision to impose a fee on asylum seekers, stating that, “The entire idea of asylum is that it’s something that you need because you are fleeing some sort of violence or persecution, and to then say that it’s only accessible to people who can pay a fee doesn’t make sense.”

Though the president may seek to implement drastic regulations that bring the situation at the border to a rapid close, the true status of the situation makes such a move incredibly difficult. There are currently more than 800,000 cases pending in immigration courts, and it typically takes nearly two years for courts to fully process cases. Approximately 100,000 migrants are currently approaching the southern border each month, and that number is expected to surpass one million within a year. Immigration and Customs Enforcement (ICE) currently houses over 50,000 migrants – one of its highest numbers in history – which is nearly 5,000 more than the maximum of 45,274 mandated by Congress. This is over a third more migrants than the daily average of those housed in 2016, which sat at 34,376. With this immense number – a number that is currently growing – of asylum seekers approaching the southern border each month, it will likely take more than a few policy proposals to adequately address the situation.

As with previous asylum-oriented policies, these are expected to face legal challenges if they are eventually implemented. Last fall, for example, a federal judge blocked an executive order that sought to prohibit Central Americans who entered the U.S. through legal ports of entry from pursuing asylum protections. Federal judges have also prevented the Trump administration, albeit temporarily, from stripping funding from “sanctuary” cities, revoking temporary work permits, and repealing deportation protections for approximately one million immigrants shielded under past presidential administrations.

Even those that support the Trump administration’s efforts question what effect, if any, executive actions will have on the border situation. “There’s a limit to what regulation is going to be able to do,” said Mark Krikorian, executive director of the Center for Immigration Studies, which promotes lower immigration levels. “I just don’t see how this can be dealt with short of legislative changes.”

The president’s decision will do little to benefit the U.S.’s relationship with its regional neighbors, particularly Mexico and a number of Central American countries, which has taken a steep dive over the past few months. In March, President Trump threatened to close the U.S.-Mexico border, a move that would have not only left an immense number of asylum seekers hoping to enter the U.S. in limbo, but dealt a deep, immediate blow to the economy on both sides of the border. Additionally, the president pledged to cut off aid to Guatemala, El Salvador, and Honduras for failing to limit the flow of asylum seekers to the U.S. Though public officials, such as President Andrés Manuel López Obrador of Mexico, stressed that such aid is key to promoting development and reducing violence – steps that would likely lead to lower migration rates in the future – President Trump did not budge. While both episodes have, for the most part, faded from the public eye, they nevertheless strained the U.S.’s relationship with these Latin American countries. The president’s move to tighten asylum rules will only strain relations further.

This act by the Trump administration is one of many that have come before, and will likely come again. Though the president has faced numerous legal obstacles in his effort to tighten asylum regulations and limit the immigrant flow through the southern border, such obstacles have never dampened his will. Those that have opposed him, meanwhile, like Democrats and civil society organizations, have also retained their will to challenge the legality of the administration’s moves at every step of the way. For both the president and his legal challengers, this moment is no different. Nevertheless, it is a situation worth observing to understand how far the executive may go to enforce their will on immigration and asylum policy.

INTERPOL’s Power to Act Preemptively in Fighting Government Abuse

May 2, 2019 by Yuriy Nemets Leave a Comment

In May 2018, Spanish authorities detained Bill Browder, a prominent critic of Russian President Vladimir Putin. It has been alleged that Spain acted on an active Russian request disseminated through INTERPOL’s channels.[1] Prior to this arrest, INTERPOL had refused to cooperate with Russia, calling Mr. Browder’s case “predominantly political.”[2] However, after several unsuccessful attempts to persuade the INTERPOL General Secretariat to approve a red notice, Russia reportedly put Mr. Browder on the international wanted list by disseminating an INTERPOL diffusion.[3] Unlike notices, which are subject to the General Secretariat’s approval, governments can exchange diffusions directly, without prior approval from INTERPOL.[4]

After Mr. Browder’s arrest in Spain, I called upon INTERPOL to inform the public whether it was monitoring all incoming red notices and diffusions to ensure that no such request enters its channels if the Commission for the Control of INTERPOL’s Files already found the individual to be a victim of INTERPOL abuse from the same government. I have argued that INTERPOL must conduct such monitoring, rather than deal with abusive red notices and diffusions after they are already published or disseminated through its channels. I have also suggested that INTERPOL should implement a reliable technology that would block incoming red notices and diffusions that match the Commission’s findings. Unfortunately, in its 2017 annual report (its most recent), the Commission confirms that INTERPOL does not have comprehensive monitoring in place, and that indeed some governments have succeeded in disseminating diffusions against the same individuals whom the Commission has already found to be victims of their red notice abuse.[5]

In his recent publication in Forbes, Dr. Theodore Bromund argues that under INTERPOL’s rules (specifically, its Rules on the Processing of Data), INTERPOL does not have the power to screen incoming diffusions and block non-compliant ones before they are disseminated through the organization’s channels.[6] I disagree. In fact, INTERPOL’s rules not only give the organization the power to screen all incoming diffusions, notices and other requests from governments and block them before they enter the organization’s channels, the rules actually require INTERPOL to do so to prevent abuse. The right of governments to send diffusions to each other directly, bypassing the INTERPOL General Secretariat, does not trump the latter’s power and obligation to monitor and block all incoming requests, including diffusions, to prevent governments from violating INTERPOL’s rules.

The General Assembly, the body of supreme authority at INTERPOL,[7] instructs that the Rules on the Processing of Data (RPD) “must be effectively implemented.”[8] RPD, which the General Assembly adopted, give the INTERPOL General Secretariat broad powers to ensure their effective implementation: “If a doubt arises regarding compliance with the conditions for data processing, the General Secretariat shall take all appropriate steps to prevent any direct or indirect prejudice the data may cause to the Organization, its staff, its Members, the National Central bureaus, the national entities, the international entities or the individuals that the data concern” (emphasis added).[9] Therefore, to perform its obligation to ensure that governments and other users comply with the organization’s rules, the General Secretariat (1) does not have to possess strong evidence that a request for police cooperation is not compliant, since mere doubt suffices; (2) must use any means not contrary to INTERPOL’s rules to block a request from being communicated; and (3) must act preventively, that is, block a request before it is disseminated and before INTERPOL member countries learn about its existence.

A more comprehensive discussion will appear in the next issue of the IELR.

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* Yuriy Nemets is the managing member at NEMETS, a law firm based in Washington, DC. Yuriy is an attorney with over fifteen years of experience in domestic and international litigation and arbitration, INTERPOL and international extradition defense, corporate, banking, transportation, international trade and investments, and intellectual property law. He has authored publications about INTERPOL and international extradition, corporate, banking, and intellectual property law.

[1] David Meyer, The U.S. Investor Behind the Magnitsky Act Was Arrested in Spain on a Russian Warrant, Fortune (May 30, 2018), http://fortune.com/2018/05/30/bill-browder-arrested-spain-interpol-russia-magnitsky-act.

[2] INTERPOL, INTERPOL Cannot be Used by the Russian Federation to Seek the Arrest of Mr. William Browder (July 26, 2013), https://www.interpol.int/News-and-Events/News/2013/INTERPOL-cannot-be-used-by-the-Russian-Federation-to-seek-the-arrest-of-Mr-William-Browder.

[3] Fair Trials, Why Does Bill Browder Keep Getting Arrested? (June 29, 2018), https://www.fairtrials.org/news/why-does-bill-browder-keep-getting-arrested.

[4] INTERPOL’s Rules on the Processing of Data art. 1(14), 2016, https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents [hereinafter RPD].

[5] Activity Report of the Commission for the Control of INTERPOL’s Files for 2017 § 57, available at https://www.interpol.int/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/CCF-sessions-and-reports.

[6] Ted Bromund, INTERPOL CCF’s Latest Annual Report Highlights Fundamental Flaw in the System (Mar. 31, 2019), https://www.forbes.com/sites/tedbromund/2019/03/31/interpol-ccfs-latest-annual-report-highlights-fundamental-flaw-in-the-system/#20e6152b3a11.

[7] Constitution of the ICPO-INTERPOL, art. 6, June 13, 1956, https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents [hereinafter Constitution].

[8] RPD, supra note 4, art. 17(1).

[9] Id. art. 129(1).

U.S. Court Authorizes John Doe Summonses about Finnish Residents Using 3 U.S. Bank Payment Cards Linked to Non-Finnish Bank Accounts

May 1, 2019 by Bruce Zagaris Leave a Comment

On May 1, 2019, the U.S. Department of Justice announced that a U.S. Court in North Carolina authorized the Internal Revenue Service to serve John Doe summonses on Bank of America, Charles Schwab, and TD Bank in an order that was unsealed on April 30. The John Doe summonses seek information about persons residing in Finland that have Bank of America, Charles Schwab, or TD Bank payment cards linked to bank accounts located outside of Finland. The summonses are known as “John Doe” summonses because the IRS does not know the identity of the persons under investigation.

The U.S. petitioned the U.S. District Court for the Western District of North Carolina to authorize the summons at the request of the Finnish government under the tax treaty between Finland and the U.S. The treaty permits the two countries to cooperate in exchanging information that is required to carry out each country’s tax laws. The IRS summons requests the identities of Finnish residents who have payment cards linked to bank accounts located outside of Finland so that the so that the Finnish tax authority can determine if those persons have complied with Finnish tax laws. Finland has told the IRS that, in circumstances where the payment cards are used only at ATMs or in other transactions where authorization is by PIN code, and the cardholder need not identify himself or herself to the merchant, the cardholders cannot be identified from sources in Finland.

The filing does not allege that Bank of America, Charles Schwab, or TD Bank violated any U.S. or Finnish laws with respect to these accounts.

Finnish Foreign Payment Project

The request is part of a foreign payment project that Finnish Tax Administration (FTA) . The FTA uses information on the use of payment cards issued by foreign financial institutions to identify non-compliant Finnish taxpayers. Prior FTA investigations of approximately 120 to 150 Finnish taxpayers who used foreign payment cards in a similar way have resulted in high rates of tax non-compliance, as explained in the U.S. government’s memorandum in support of the petition. It indicates that it is likely that the John Does sought by the summons are Finnish residents who are failing to report these foreign accounts and associated income.

Analysis

The court order in this case authorizing the enforcement action is part of ongoing international efforts by the U.S. and its treaty partners to stop persons from using foreign financial accounts to evade taxes. U.S. courts have previously approved John Doe summons allowing the IRS to identify individuals using offshore accounts to evade their U.S. obligations, and have also approved John Doe summons to be used to identify individuals using U.S. financial institutions or accounts to evade foreign tax obligations, such as those in the Netherlands and Norway.

The current matter also shows an increase in efforts by foreign tax authorities to bring request assistance from the IRS and directly bring enforcement actions in the U.S.

The current issue of the IELR will have additional discussion of the case.

North Korean Embassy Raid: As Answers Emerge, Many Questions Remain

May 1, 2019 by Alex Psilakis 1 Comment

In early April, the IELR Blog reported on the break-in at the North Korean Embassy in Madrid. Though Spain sought the extradition of those involved in the raid, the U.S. refused to comment on the situation, let alone offer their open assistance. As a result, it appeared as though the assailants had escaped, leaving behind a complex political incident that entangled the U.S., North Korea, and Spain, all in the shadow of the failed Trump-Kim summit of February 2019.

One month later, the case continues to develop. On April 23, 2019, the U.S. arrested Christopher Philip Ahn, a U.S. citizen and former Marine, for his involvement in the raid. Spain, who put out the arrest warrant against Ahn, has filed a number of charges against him, including robbery, illegal restraint, and associating with criminal organization. U.S. enforcement officials learned of Ahn’s participation in the raid when Adrian Hong Chang, the de facto leader of the group, informed the FBI of Ahn’s involvement. Video surveillance captured images of Ahn as well. Awaiting extradition, Judge Jean Rosenbluth denied Ahn bond, forcing him to remain in custody.

Just days after Ahn’s arrest, U.S. authorities issued an arrest warrant for Hong Chang himself. A Mexican citizen with permanent residency in the U.S., Hong Chang faces charges similar to those of Ahn, including breaking and entering, as well as causing injuries. The arrest warrant – which references information provided by Spanish authorities – labels Hong Chang as the architect and leader of the seven-person raid.

Hong Chang has been on the move from the moment the raid ended. Calling an Uber to escape the scene of the raid, Hong Chang acted under the alias “Oswaldo Trump.” When the Uber parked too close to the police stationed outside the embassy, he cancelled it and called a new one. He travelled to Toldeo, Spain, then onto Lisbon, Portugal, where he flew to the U.S. The day after the attack, he called and set up a meeting with FBI agents in New York. He informed the agents of his role in the raid, and turned over the items that he captured, which included pen drives and hard drives. He claimed that, though they carried dangerous weapons like knives, they did not display them. Hong Chang also voluntarily met with FBI agents in Los Angeles, where he informed them of Ahn’s role in the raid. Yet with the recent release of the arrest warrant, these attempts to garner the favorable treatment of U.S. law enforcement officials appear to have failed. U.S. authorities believe that Hong Chang lies somewhere in the Central District of California, but his exact location remains unknown.

Hong Chang’s lawyer, Lee Wolosky , has sharply criticized U.S. authorities for accepting North Korea’s version of the story. “In due time,” he stated, “We expect to be able to present additional evidence that contradicts the story made up by the North Korean government.” Wolowsky also represents the Free Joseon, an organization that seeks the overthrow of the Kim regime in North Korea. Though Free Joseon originally claimed responsibility for the raid, they have since reneged on that statement, instead arguing that they were invited into the embassy. Free Joseon has, however, committed sharp acts of protest against the Kim regime in the past. They took credit for saving the surviving family members of Kim Jong Nam, the half-brother that Kim Jong Un allegedly assassinated in 2017. They also spray-painted their name and symbol on the North Korean Embassy in Malaysia in March, alongside the phrase, “We shall rise.” They released a video of a man smashing images of Kim Jong Il and Kim Il Sung, the previous two leaders of North Korea, as well. Such an act is viewed as heretical in North Korea, since figures of the regime are meant to be viewed with absolute reverence and respect.

Two months on from the February 22 raid, much remains publically unknown. Though U.S. authorities have arrested one man in connection with the raid and are pursuing another, the whereabouts and status of the five other assailants remains a mystery. Furthermore, it remains to be seen how far the U.S. will be willing to go to assist in the prosecution of U.S. individuals who committed crimes in the North Korean embassy. While the U.S. may be upholding their obligations to Spain under international law, executing warrants and preparing individuals for extradition, each step the U.S. takes in this direction indirectly supports the Kim regime. After the FBI returned the items stolen from the embassy to Spain, Spain promptly returned them to North Korea. Additionally, the U.S. has shown little hesitation in moving forward with extradition proceedings against those allegedly involved in the raid, like Ahn.

Since the U.S. and Spain are bound by an extradition treaty, the U.S. is legally bound to follow through on processing the request. Certain exemptions within the treaty could potentially allow the U.S. to avoid extraditing those involved in the raid. According to Article 5, Section 3 of the treaty, extradition shall not be granted when the offense in question is of a “political character.” The raid on the embassy could be viewed as a political act, since it was carried out as a form of protest against the Kim regime. However, the political exemption likely does not apply to this case because the exemption is so narrow. Courts usually recognize the political offense exception when the act committed is done so directly against the state, and possesses none of the elements of an ordinary crime. Rarely are violent acts considered, but if they are, they are minor and almost never involve innocent civilians. Typical crimes exempted include treason, sedition, and espionage, which normally involve peaceful acts like speaking out against the government or demonstrating peacefully. Since Spain is not seeking the extradition of the assailants on these charges, as they are instead focusing on crimes like breaking and entering and causing injuries, it is unlikely that the political exemption will apply in this case.

The raid has undoubtedly placed the U.S. in a difficult situation. In observing the case as it develops, it is worth analyzing how the U.S. balances its legal obligations to Spain with its adversarial attitude toward North Korea. Additionally, five of the seven assailants remain on the run, one of which includes a South Korean national. How legal proceedings develop against these individuals – if any do – will prove worth considering as well. Seeking answers to the many questions that remain, the IELR Blog will continue to monitor the ramifications of the raid in the U.S. and around the world.