Archives for June 2019

The Dejia Case Shows the Important Roles for NGOs and Data Analytics in Stopping Forest Crime*

June 27, 2019 by Bruce Zagaris Leave a Comment

In the aftermath of the Environmental Investigation Agency’s (EIA) report and video on illegal logging and export of wood covered by the Convention on International Trade in Endangered Species (CITES), Dejia has denied wrongdoing. The EIA has responded.

This blog post also notes the various enforcement actions brought in the U.S. to prevent the importation of wood imported in contravention of CITES and the Lacey Act, some with the help of environmental non-governmental organizations, using data analytics, another action with the help of the bilateral customs enforcement agreement. It also describes a recent call for consultation requested by the United States Trade Representative to raise with Peru the apparent violation of the United States – Peru Trade Promotion Agreement (PTPA) by compromising the independence of the agency charged with policing illegal logging and export of illegally harvested wood. Finally, the blog post mentions the role of environmental protection and enforcement in free trade agreements, such as the Trans-Pacific Partnership (TPP).

In response, EIA has released two “raw intelligence” videos about the Dejia case following the release of the report that corroborating its allegations:

https://eia-global.org/blog-posts/20190514_Raw_Intelligence_Dejia_Group_Blog

https://eia-global.org/blog-posts/20190522-raw-intelligence-wcts-blog

Other cases in which the U.S. Department of Justice (DOJ) has prosecuted violations of the U.S. Lacey Act, which implements CITES, is in February 1, 2016, when Lumber Liquidators Inc. agreed to pay more than $13 million in criminal fines and forfeitures to resolve a DOJ investigation into the import of wood. Much of its illegal importation of hardwood flooring was manufactured in China from timber that had been illegally logged in far eastern Russia, in the habitat of the last remaining Siberian tigers and Amur leopards in the world. Lumber Liquidators also agreed to a five-year term of organizational probation and mandatory implementation of a government-approved environmental compliance plan and independent audits.[1]

The illegal cutting of Mongolian oak in far eastern Russia is of major issue because those forests are home to the last 450 wild Siberian tigers, Panthera tigris altaica. Illegal logging is the primary risk to the tigers’ survival, because they depend on intact forests for hunting and because Mongolian oak acorns are a chief food source for the tigers’ prey species. Mongolian oak forests are also home to the highly endangered Amur leopard, Panthera pardus orientalis, of which fewer than 50 remained in the wild in 2016. In June 2014, in response to illegal logging and the decline in tiger populations, Mongolian oak was added to the CITES Appendix III.

The EIA has shown the use of data analytics in investigating and showing the illicit trade in wood and timber.

For many years EIA’s investigative work focused on reconstructing the routes that timber takes from the Amazon to the warehouses of U.S. importers, through use of official information obtained under Peru’s Transparency and Access to Public Information Law. The links in this chain are willfully obscured to perpetuate confusion about the origins of almost all timber traded in Peru. EIA was able to reconstruct the chain of custody for trade in cedar (Cedrela odorata) and bigleaf mahogany (Swietenia macrophylla) only because both species are protected under the CITES and hence require specific export permit documents. For how EIA penetrated the chain of illegal exports, see the Laundering Machine: How Fraud and Corruption in Peru’s Concession System Are Destroying the Future of its Forests https://content.eia-global.org/assets/2012/04/The_Laundering_Machine_ENG.pdf.

In 2018, EIA released a new report titled “Moment of Truth”: https://eia-global.org/reports/momentoftruth

EIA’s new report describes important advances since 2012 in Peru’s fight against illegal logging, timber laundering, and its associated international trade – as well as the backlash against these new approaches.

The evidence of persistent illegal logging, systemic corruption, laundering, and illegal timber in Peru’s exports remains overwhelming. While the U.S. has begun to crack down on illegal Peruvian timber, major importing countries like China and Mexico are turning a blind eye.

An analysis of hundreds of pages of official documents shows systematic exports of illegal and high-risk timber from Peru’s main port of Callao during 2015, by dozens of companies and to 18 countries. However, due to revelations of wrongdoing, the analysis for 2016 or 2017 cannot occur, since the Peruvian forest authority has stopped making available the necessary data.

On January 18, 2017 the DOJ announced that 24 pallets of timber seized by the U.S. Department of Homeland Security, Homeland Security Investigations (HSI) on December 20, 2015, at the Port of Houston, Texas for violation of the Lacey Act and customs law were destroyed in accordance with a settlement agreement reached by the United States and the importer of the timber, Oregon-based Popp Forest Products Inc. The agreement prevented the timber that was allegedly harvested in violation of Peruvian law would not enter the U.S. stream of commerce.[2] The allegations were based on a report HSI obtained from the Peruvian government under a Customs Mutual Assistance Agreement, providing the results of an inspection carried out in the areas in which the timber was allegedly harvested. The report showed the timber could not be the species authorized for harvest. The U.S. Forest Service’s Forest Products Laboratory tested samples and corroborated the finding that samples taken from the shipment were not the species authorized for harvest.[3]

On January 4, 2019, the Office of the U.S. Trade Representative (USTR) requested consultations with Peru under the Environment Chapter of the United States – Peru Trade Promotion Agreement (PTPA). Through these environment consultations, the U.S. and Peru will discuss and try to resolve concerns regarding a recent Peruvian action to move the Agency for the Supervision of Forest Resources and Wildlife (OSINFOR) from its position as a separate and independent agency to a subordinate position within Peru’s Ministry of Environment (MINAM). This is the first request for consultations made under the PTPA.[4]

According to the PTPA’s Annex on Forest Sector Governance, “OSINFOR shall be an independent and separate agency and its mandate shall include supervision of verification of all timber concessions and permits.” Peru’s Supreme Decree 122-2018-PCM, published on December 14, 2018, seems to conflict with this provision.

Ambassador Robert Lighthizer, head of USTR, said that by requesting consultations, the Trump Administration is showing that “it takes monitoring and enforcement of U.S. trade agreements seriously, including obligations to strengthen forest sector governance.” According to Lighthizer, “(s)ince its creation in 2008, OSINFOR has played a critical role in Peru detecting and combatting illegal logging, and we are gravely concerned that its independence is threatened.”[5]

On April 10, 2019, in a dramatic reversal of its position, the Peruvian government published a decree that restores the independence of OSINFOR.[6]

Chapter 20 of the Trans Pacific Partnership refers to Multilateral Environmental Agreements (MEAs), but only requires Parties to “adopt, maintain, and implement” CITES rather that the seven MEAs listed for FTA inclusion in the May 2007 bipartisan agreement[7] and in accordance with “fast track” procedures.[8] In spite of these obligations, the MEA commitments do not contained in the text of the TPP.[9] The TPP has two potential enforcement mechanisms in its Environment Chapter: a dispute settlement process available for Parties to the agreement and a framework for what may become a citizen suit provision.[10] While environmental groups have properly criticized the environmental provisions of the TPP, these provisions offer the Parties and their citizens, including environmental groups, mechanisms to use in order to raise illegal logging and wood trade. The fact that the Trump Administration decided not to join the TPP means that it has no provisions with many of the parties to the TPP to raise these issues. The Canadian government explains that the enforcement of the Environment Chapter through the TPP’s dispute settlement mechanism is a first for Canada. In addition, the TPP Environment Chapter also establishes a framework for cooperation in areas of mutual interest in support of the Chapter’s commitments. This includes, for example, working together to address illegal trade in wood and climate change.[11]

The work by environmental NGOs working with data analytics, reviewing customs and trade documentation, and using sophisticated undercover techniques can result in persuading law enforcement agencies and prosecutors to investigate and prosecute illegal trade in wood, especially in violation of CITES. As EIA has shown in the Dejia case, usually illegal wood harvesting and international trade involves multiple criminal violations, such as bribery in obtaining the license to log, false customs declaration, tax crimes in falsely declaring to governments the value of the logs, and money laundering arising from the movement of proceeds of crime and efforts to conceal the same. In addition, wire and mail fraud, predicates to money laundering, are often implicated.

EIA’s use of customs and trade data illustrates the successful use of data analytics to stop illegal wood trade. Three types of data analytics are predictive modeling; outlier detection; and network analytics.

Predictive modeling can generate a profile of a bad actor. The computer can use prior audit cases of customs declarants or taxpayers to ascertain which characteristics of the customs declaration or tax return were the most highly correlated with a successful audit (i.e., geographical region, industry, corporate structure, income bracket). The resulting list of characteristics is called a model. The model can then be used to evaluate customs declarations or tax returns for likelihood of customs or tax evasion.[12]

Outlier detection occurs when the computer is used for customs declarants and taxpayers by like characteristics and looks at customs declarations and tax returns that fall outside the normal. It can be helpful to find new segments to audit that were previously ignored. It may show an inordinately low level of valuation of the wood on the customs declaration or very high level of deductions on the tax return from the prior year. In some cases officials may be able to ascertain outlier characteristics by comparing customs and tax data.[13]

Network analytics (connections) are built on the implicit relationships between individual companies (i.e., people who share addresses, phone numbers or bank accounts). An example is the data from the Panama Papers and/or the Paradise Papers.[14] Investigators can easily detect and visualize corporate structure, the complex flow of financial transactions. Investigators can identify structures and transaction flows as “high risk.” Network analytics is especially useful for complex cross border activities or corporate structures such as pass through entities.[15]

In the coming months and years, if the U.S. and the world are going to come to grips with climate control, environmental NGOs, citizen groups, journalists, law enforcement, and prosecutors will need to cooperate in preventing forest crimes. In this effort, data analytics will play a key role.

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*This article is a follow-up to a piece published in the May 2019 edition of the IELR titled: “EIA Releases Report Showing Illegal Logging and Wood Trade by Chinese Company in Congo and Gabon.” You can read the original piece here: https://bit.ly/2LyjVWr.

[1] U.S. Department of Justice, Lumber Liquidators Inc. Sentenced for Illegal Importation of Hardwood and Related Environmental Crimes, Press Rel. 16-116, Feb. 1, 2016 https://www.justice.gov/opa/pr/lumber-liquidators-inc-sentenced-illegal-importation-hardwood-and-related-environmental

[2] DOJ, Justice Department Reaches Agreement to Ensure Destruction of Timber Believed to Have Been Harvested in Violation of Peruvian Law, Press Rel. 17-093,January 18, 2017 https://www.justice.gov/opa/pr/justice-department-reaches-agreement-ensure-destruction-timber-believed-have-been-harvested

[3] Id.

[4] Office of the U.S. Trade Representative, USTR Requests First-Ever Environment Consultations Under the U.S.-Peru Trade Promotion Agreement (PTPA), Jan. 4, 2019 https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/january/ustr-requests-first-ever.

[5] Id.

[6] Global Witness, The Forest Avengers, Jan. 17, 2019 https://www.globalwitness.org/en/campaigns/forests/forest-avengers/ (accessed June 17, 2019).

[7] Office of the United States Trade Representative, Trade Facts: Bipartisan Agreement on Trade Policy 2 (May 2007), https://ustr.gov/sites/default/files/uploads/factsheets/2007/asset_upload_file127_11319.pdf. Additionally, the exclusion of the six MEAs is noteworthy, given that all Parties to the TPP are also party to at least two of these MEAs left out of the agreement. Sierra Club TPP Text Analysis at 3.

[8] 19 U.S.C. § 4201(b) (10) (A).

[9] Center for International Environmental Law, The Trans-Pacific Partnership and the Environment:

An Assessment of Commitments and Trade Agreement Enforcement 2 (Nov. 2015) https://www.ciel.org/wp-content/uploads/2015/11/TPP-Enforcement-Analysis-Nov2015.pdf

[10] Id. at 3, citing 5 See TPP Article 20.9 (describing the “Public Submission” process); see also TPP Articles 20.20-20.23 (describing “Environmental Consultations,” “Senior Representative Consultations,” “Ministerial Consultations,” and “Dispute Resolution,” respectively).

[11] Government of Canada, What does the CPTPP mean for the environment sector? ps://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/sectors-secteurs/environment-environnement.aspx?lang=eng.

[12] Predictive Modeling: The Only Guide You’ll Need, MircroStrategy, (last accessed June 17, 2019), https://bit.ly/2ZsWMrR.

[13] Sergio Santoyo, A Brief Overview of Outlier Detection Techniques, Towards Data Science, (Sept. 11, 2017), https://bit.ly/2H1eCgx.

[14] ICIJ, The Panama Papers: Exposing the Rogue Offshore Financial Industry https://www.icij.org/investigations/panama-papers.

[15] Alienor, Network Analytics: What It Is, How Its Used, and Who Benefits the Most, Plixer, (Oct. 26, 2018), https://bit.ly/2Imiecw.

OECD and IBA Issue Report on Proper Roles of Lawyers and International Commercial Structures

June 26, 2019 by Bruce Zagaris Leave a Comment

On May 31, 2019, the International Bar Association and the Secretariat of the Organization for Economic Co-operation and Development published a Report of the Task Force on the Role of Lawyers and International Commercial Structures.

The Report observes that lawyers’ professional obligations and clients’ rights are regulated by domestic laws and regulations, and/or ethical and deontological codes. The Task Force states that there are certain key principles that should apply in this context in order to balance between the rights of, and duties to, the client on the one hand and a lawyer’s other professional or legal duties on the other. The Report sets forth seven principles without prejudice to the rule of law and related legal conventions, a lawyer’s duty of confidence and laws relating to privilege.

The Task Force recommends the Statement of Principles to national bar associations and law societies with a view to encouraging them to adopt the principles and engage with their governments to explain the role of the principles in ensuring the proper administration of justice and in upholding the rule of law. The sponsors also published an executive summary of the report

The Task Force advocates that, where the Principles are adopted and become part of domestic law and/or professional regulations, their disregard should result in the application of proportionate disciplinary measures, including, where appropriate, disbarment, recognized also in foreign jurisdictions.

Principle 1: Non-facilitation of illegal conduct – Although a lawyer may be unwittingly associated with illegal conduct, including financial crimes, a lawyer should not facilitate illegal conduct, and should undertake the necessary due diligence to avoid doing so inadvertently.

Principle 2: Misuse of the duty of confidence and privilege. Notwithstanding the lawyer’s duty of confidence to a client and the concept of legal professional privilege, a lawyer should not use the confidential nature of the lawyer-client relationship or the principles of legal professional privilege to shield wrongdoers. A lawyer should give due and proper consideration to refraining from acting for a client if the lawyer is aware of, or has reasonable grounds to believe, that the primary purpose of the retainer is to permit the client to be able to rely on the confidential nature of the lawyer-client relationship or privileged communication) so as to permit or encourage the client to engage in illegal conduct.

Principle 3: Client due diligence. A lawyer should undertake and document all reasonable and proportionate inquiries in order to identify and verify a client, as well as identify any ultimate beneficiary of the conduct or transaction, the origin of the funds for the transaction (consistent with applicable anti-money laundering or counterterrorism financing legislation), the substantive nature of the conduct or transaction (including expected revenue and taxation consequence of the transaction) and, subject to Principle 5, be satisfied that the conduct and/or transaction is legal in the lawyer’s jurisdictions.

Principle 4: Action where client conduct is may be or becomes illegal. When the conduct of a client is, may be, or becomes illegal, even if it was originally legal and the lawyer continues to be retained by the client, a lawyer should advise the client of the consequences of the conduct and recommend that the client pursues alternative solutions. If the client persists in the conduct, the lawyer should give due and proper consideration to ceasing to act, and terminate the retainer.

Principle 5: Multijurisdictional risk. Where a transaction involves conduct by a client, agents or representatives of a client in more than jurisdiction and the lawyer has reasonable grounds to believe that the conduct may be or may become illegal in a jurisdiction(s), a lawyer should verify that expert advice is or has been obtained by the client from a lawyer experienced in the conduct or transaction in that jurisdiction. If such advice has not been obtained and the client wants to proceed with the transaction, the lawyer should recommend that such advice be obtained (at the cost of the client). If the client declines to obtain such advice and persists in the conduct, then the lawyer should give due and proper consideration to ceasing to act and terminate the retainer.

Principle 6: Use of illegal obtained information. Lawyers should strongly discourage a client from paying private parties or public officials to obtain illegally obtained evince, which of itself may constitute a criminal offense in many jurisdictions. To facilitate this, legal frameworks should be consistent across jurisdictions as much as possible, since it is often through cross-border conduct that confidential or secret information in country A is accessed (without the consent of the owner of the information) and then disclosed to a person in country B. An independent court should, where necessary, resolve the question as to what use can be made of such information, based on the applicable domestic framework.

Principle 7: Disclosure of beneficial ownership. A lawyer should obtain and maintain up-to-date beneficial ownership information and take reasonable measures to verify its accuracy in relation to the lawyer’s clients. Domestic laws should provide for the disclosure of ultimate beneficial ownership of any corporation, trustor other legal entity formed within that country’s jurisdiction. Beneficial ownership information should be available to state regulators, investigators and enforcement agencies. Governments must address whether it needs to be publicly available.

Principle 8: Advertising by lawyers on international commercial structures. Any advertising by lawyers should be transparent, accurate, and truthful. Domestic regulation, bar associations, and law societies should ensure the lawyer advertising is accurate and truthful.

The Report does not seek to duplicate existing international or other national guides for the legal profession in terms how a lawyer should act or not act in certain circumstance. The Report does not seek to cover the many anti-money laundering and counterterrorism financing laws, obligations and disclosure duties that exist in many countries. Instead, it focuses on high-level issues of principle that should assist governments in policy formulation and in guiding lawyers as to how they should conduct themselves, consistent with a lawyer’s underlying domestic legal and ethical obligations.

The Report also sets form the minimum good practice required when a lawyer proposes to accept instructions in a cross-border commercial matter, especially, but not exclusively, from a new client or a client with whom the lawyer has not worked for at least 12 months.

The Report provides detailed guidance for the eight above-mentioned principles with citations to guide legal professionals.

Annex B contains existing guidance concerning the role of lawyers with regard to international commercial structures.

The July issue of the IELR will have a more comprehensive discussion of the Report.

After Iran Downs a U.S. Drone in the Strait of Hormuz, Larger Questions Loom about U.S. Desires to Legally Justify a Possible War with Iran

June 24, 2019 by Evan Schleicher Leave a Comment

On June 20^th, an Iranian surface-to-air missile shot down a United States RQ-4A Global Hawk drone, a high-altitude robot typically used for surveillance over ocean and coastal areas. Both the Iranian Revolutionary Guard Corps and the United States Central Command have confirmed that it was, in fact, an American surveillance drone that Iran shot down and that the wreckage landed in the Strait of Hormuz. While the U.S. maintains that Iran shot down the drone in international waters, Iranian officials maintain that the drone had breached Iranian airspace. This dispute led to escalating tensions over the weekend, with reports emerging that the President had approved multiple military strikes against Iran only to hesitate at the last minute. The President confirmed this in a series of tweets on June 21. With the possibility of U.S. retaliation still lingering, it is important to ask: What legal basis does the United States have for striking Iran?

According to Stanford legal scholar, Allen Weiner, “a limited use of force against Iran for downing a U.S. drone would be consistent with the exercises of force that Presidents have authorized many times in the past.” In international law, this type of action would be justified as a “necessary and proportionate force in self-defense in response to an attack against a U.S. drone…if the U.S. drone was operating, as it is allowed to do, in international airspace.” If the drone were shot down in Iranian airspace, as Iran claims, then America would not have a self-defense justification for a counterstrike. The initial uncertainty surrounding the exact location of the crash site will make it difficult in the short-term to know whether the Iranian decision to shoot down the U.S. drone was legally justified.

In this context, it is confusing and worrying that the U.S. would look to retaliate so immediately for an attack which resulted in no U.S. casualties. The fact that estimates indicated that as many as 150 people could die in such a strike makes it even more concerning that the U.S. seemed poised to undertake such a strike. In recent months, and despite recent pushback from the President, the U.S. government has seemed primarily concerned with developing legal justifications for a more encompassing kinetic response to Iran.

Central to this effort has been the development of a rigorous legal justification for a US war effort which has focused primarily on the 2001 Authorization for the Use of Military Force (AUMF), which allowed the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” This piece of legislation was mentioned in the previous blog post within the context of indefinite detention.

Multiple officials, including Secretary of State, Mike Pompeo, have explicitly mentioned the AUMF as the legal basis for a war with Iran. Additionally, private conversations between the President and his confidants suggest that, although the President himself opposes a war with Iran, there is extensive institutional support for war at the highest levels of government. Given this support, the question must be asked: Does the AUMF justify a war with Iran?

To begin, the connection between Iran and the 9/11 attackers is dubious at best, but it does merit some attention, given the Administration’s seemingly strong belief that there is a connection. According to the 9/11 Commission Report, in the fall of 1993, Al Qaeda operatives were trained in the Bekaa Valley in Lebanon by Hezbollah operatives. In 2011, the U.S. Department of the Treasury said that it had uncovered a network that “serves as the core pipeline through which Al-Qaeda moves money, facilitators, and operatives from across the Middle East to South Asia” and that Iran is a “critical transit point for funding to support Al-Qaeda’s activities in Afghanistan and Pakistan.” The State Department Country Report on Terrorism has consistently reported evidence of Iranian facilitation of Al Qaeda operations and networks.

Despite what appears to be strong evidence of Iran/Al Qaeda collaboration, internal documents from Al Qaeda indicate that the connection is much weaker than it may appear. A 2018 study by the New America think tank, based on roughly 470,000 declassified files obtained from Osama bin Laden’s compound in 2011, showed no links between Iran and Al-Qaeda regarding the commission of terrorist acts. Rather, it seemed to show that Al Qaeda distrusted Iran and that Iran was deeply uncomfortable about any Al Qaeda presence in Iran. What this suggests is that it is very unlikely that Iran could be connected beyond reasonable doubt to the September 11 attackers, and even less likely that the Iranian government actively or knowingly assisted any of them.

In fact, following the attacks of September 11, 2001, the Iranian government handed over photocopies of three hundred passports associated with suspected Al Qaeda members to the United Nations. Of these three hundred, many would be forcibly deported back to Saudi Arabia and other Arab countries. In an additional gesture of good will, the Iranian regime offered to provide search and rescue support, humanitarian relief, and targeting assistance in the fight against the Taliban and Al Qaeda.

To push forward this justification in the face of significant doubt would have significant political ripple effects. Internationally, using the AUMF to justify a war against Iran would likely be seen as a violation of the dictate that actions taken in self-defense be both “necessary and proportionate.” This would be even more likely if the U.S. were to start a war in response to a specific catalyzing event, like the downing of a drone in international waters. Certainly, a war would not be remotely proportionate to the downing of a single U.S. drone. Further, it is likely that the AUMF would be seen as a convenient excuse for invasion, rather than a legitimate justification, which would likely harm U.S. alliances and create problems for the U.S. similar to those it experienced in Iraq after it became clear that Saddam Hussein had no Weapons of Mass Destruction (WMDs). This would also cause significant domestic political turmoil, as multiple 2020 Democratic candidates have already come out against the move, according to an article in The Intercept. Additionally, five prominent Democratic senators filed a bipartisan amendment on Thursday to the National Defense Authorization Act, or NDAA, for the 2020 fiscal year to prohibit funds from being used for military operations against Iran without congressional approval.

It will be increasingly important in the coming months that legal scholars keep a close eye on U.S. legal arguments surrounding responses to Iranian actions, as these arguments may indicate changing strategies and escalations.

With the Supreme Court Refusing to Hear a Lawsuit Brought by a Yemeni Man Detained at Guantanamo Bay, Questions Resurface Regarding the Legal and Political Ramifications of Indefinite Detention

June 14, 2019 by Evan Schleicher 1 Comment

The Supreme Court on June 10^th refused to hear a lawsuit by Moath al-Alwi, a Yemeni man who has been held in wartime detention for more than 17 years at Guantánamo Bay. In the aftermath of this refusal, Justice Stephen G. Breyer called for a re-examination of the 2004 Supreme Court decision – Hamdi v. Rumsfeld – which has been used to justify the indefinite detention of suspected terrorists, including Mr. al-Alwi, and other actors without trial.

Prior to that 2004 decision, Congress passed the Authorization of the Use of Military Force (AUMF), which states that the President may “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in the September 11^th attacks. The case itself was concluded when a majority of this Court understood the AUMF to permit the President to detain certain enemy combatants for the duration of the relevant conflict. Breyer’s recent statement is particularly noteworthy because, he, along with Justices O’Connor, Rehnquist, and Kennedy, initially supported the decision in Hamdi v. Rumsfeld. However, this support was not without hesitation. In the plurality decision, Justice O’Connor cautioned that this understanding “may unravel” if the “practical circumstances” were to become “entirely unlike those of the conflicts that informed … the law of war.” She further concluded that the “unconventional nature” of the war on terror presented a “substantial prospect” that detention for the “duration of the relevant conflict” could amount to “perpetual detention.”

Because the “War on Terror” is so amorphous and enduring, it is difficult to establish when the “relevant” hostilities will end, if ever. Certainly, while the non-state and state actors present in the “war” in Afghanistan today are the same as those in the conflict in which al-Alwi supposedly participated, the tactics, alliances, and even leaders of those groups have changed significantly over time. It is important to ask: is this the same “relevant conflict” in which al-Alwi fought? In the context of the AUMF, it seems so. The general authorization to use appropriate force against organizations the President determines to have been a part of the September 11^th attacks continues to operate because the Taliban continue to exist as an organization. Because Mr. al-Alwi supposedly confessed to fighting for the Taliban on the front lines as a member of Osama bin Laden’s 55^th Arab Brigade, he is considered under US law as a member of an organization which was involved in the September 11^th attacks.

The Supreme Court’s refusal to hear Mr. al-Alwi’s case means that, at least in the short-term, indefinite detention will continue to be an active part of U.S. policy unless Congress repeals the AUMF, an action which several legal experts have advocated in the past weeks.

Stepping back, it seems that the rolling back of the AUMF and the end of indefinite detention might be a wise political move as well. Despite the current domestic legality of indefinite detention, it may not be worth the political costs that it is incurring. As written previously in the IELR, the Council of Europe and European states have held hearings and litigated the illegality of the detention programs operated by the U.S. in support of the war on terror.[1] Since 2015, the European Parliament has begun to move strongly against the war on terror-based US detention program, arguing that the fight against terrorism should respect the rule of law, human dignity, human rights, and fundamental freedoms.[2] In one specific case, the U.S. could not find any country that would allow the U.S. to bring a detainee into their territories.[3] While between 2002 and 2006, nearly a quarter of the world’s countries assisted the US government in the conduction of its covert rendition and detention program, the recent inability to find countries that will participate in the program is proof that the political landscape has significantly shifted. This political shift has had an impact on the viability of the detention program and might make it difficult to convince previously strong allies in the war on terror to participate in future campaigns. Consequently, if there is to be any hope to re-building global alliances in the war on terror, some thought must be given to repealing the AUMF or to ending the system of indefinite detention through other means. The current program, both for legal and for political reasons, is quickly becoming untenable.

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[1] Zagaris, Bruce, “U.S. Court Upholds Interrogation of Libyan on Ship with Respect to Killing of US Ambassador in Benghazi,” International Enforcement Law Reporter, Vol. 33, Issue 9, Sep 2017.

[2] Plachta, Michael, “European Parliament’s Follow-up to the CIA Detention Sites and Torture in Europe,” International Enforcement Law Reporter, Vol. 32, Issue 6, June 2016.

[3] Zagaris, 2017.

Airport Seizures Emphasize the Role of the Illicit Wildlife Trade in India

June 10, 2019 by Alex Psilakis Leave a Comment

One day they found an African horn pit viper, two rhinoceros iguanas, and three rock iguanas. Less than two weeks before that, they discovered 18kg of peacock feathers. A month before that, they uncovered a leopard cub. The list goes on.

This isn’t a zoo, but the Chennai International Airport – a location that has rapidly become a hotspot in the fight against the illegal wildlife trade. The customs department at the airport has grown used to seizing creatures and goods that smugglers seek to illegally sneak out the country, such as star tortoises and sea cucumbers. Yet the airport is facing a new challenge in curbing the smuggling of wildlife into the country.

A number of reasons help to explain this development. Due to its geographic location, Chennai is an easy access point for those departing to or arriving from neighboring Southeast Asian states, especially as a vast amount of affordable flights pass through the airport each day. Due to this position, the city of Chennai has grown to develop a fairly deep smuggling network, where everything from sea horses to pangolin scales passes through. Additionally, wildlife smuggling rings in the region have no shortage of manpower. They routinely turn to young people, such as college students, to act as conduits, offering them attractive amenities in return like free international airplane tickets, a hotel room, and some spending money. Oftentimes, the couriers have no understanding of the handler or the customer they are serving, meaning that, even when they are caught, little more can be done with them other than assigning them a fine and sending them on their way.

India as a whole is a key battleground in the illegal wildlife trade. Between 2009-2017, Indian authorities captured nearly 6,000 pangolins that passed through the country. Pangolins, which can be found throughout India, are one of the most sought after animals in the wildlife trade, as their scales are viewed as key ingredients in traditional Chinese medicine. The Indian star tortoise is another animal that has come under threat due to the trade. Though a stable population currently resides in India, poachers are rapidly pursuing it because of its popularity as a pet. While 10,000 to 20,000 were poached in 2004 throughout their entire habitable region – which includes India, Pakistan, and Sri Lanka – approximately 55,000 were taken from just one Indian village in 2014. Newborn and young Indian star tortoises are routinely poached because their small size makes them easy to conceal at key poaching transit locations, such as airports. Furthermore, wildlife traffickers target as many as 200 types of birds from throughout India, be it for medicinal purposes, consumption, or individuals’ desire to domesticate them.

It comes as no surprise that the wildlife trade permeates India with such prevalence. Studies estimate the trade to be valued at $5 billion globally, making it the fourth largest international smuggling market. The price tag associated with a number of wildlife-related goods has risen rapidly and dramatically, contributing to the staggering international value. The rhinoceros, which can be found in India, provides a stark example of this trend. Rhinos are targeted not only for their meat and bones, but their ivory horns. The value of one kilogram of ivory nearly tripled in just four years, climbing from $750/kg in 2010 to $2,100 in 2014. The typical rhino horn was sold for $29,000/kg in 2017.

Indian authorities, both within airports and around the country, have recently taken a number of steps to combat wildlife smuggling. The airport has strengthened its security presence, and because its security personnel have become accustomed to detecting cases of smuggling, they have become more effective in spotting potential perpetrators. However, much of the work to combat the illegal wildlife trade is not taking place on the ground, but online. In March 2019, for example, a number of NGOs, including TRAFFIC and WWF-India, held a two-day event to promote cyber security awareness for the forest officials of Kali Tiger Reserve, Karnataka. The event touched on several areas relevant to detecting potential crimes online, including communications device investigation, social media investigation, and digital forensics. These methods are all a part of the NGO community’s “Cyber CLAW” training program, in which they strive to improve the cyber capabilities of Forest Department officials across India. Similar programs have trained officials from the state of Assam, as well as Uttar Pradesh and Uttarakhand.

Even though wildlife smuggling remains painfully present in states like India, these actions taken by authorities, as well as international NGOs, emphasize how seriously such groups take the threat of the trade. Only through further cooperation, both with the NGO community and international partners, may India – and others states combatting the illicit wildlife trade – strengthen their enforcement capabilities and weaken smuggling operations. While the recent efforts are great first steps, they are only that – first steps.

Assange’s Extradition Challenged on Both Fronts

June 5, 2019 by Alex Psilakis Leave a Comment

A pair of recent developments has shown how multifaceted and complex the case against Julian Assange is.

On May 31, 2019, Nils Melzer, the UN Special Rapporteur on Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, declared that Assange’s extradition to the U.S. would prove a serious threat to his human rights. According to Melzer, Assange is currently experiencing symptoms of “prolonged exposure to psychological torture,” which include extreme stress, severe anxiety, and fierce psychological trauma. In line with this, Assange’s lawyer suggested that Assange missed a set court appearance because of his health. Additional sources have also stated that Assange has lost a serious amount of weight, and that it is nearly impossible to hold a simple conversation with him.

“In 20 years of work with victims of war, violence and political persecution,” Melzer noted in a statement, “I have never seen a group of democratic states ganging up to deliberately isolate, demonise and abuse a single individual for such a long time and with so little regard for human dignity and the rule of law.” Melzer has cited a specific instance in which Assange may receive, if extradited to the U.S. and faced with additional charges, a life sentence without the possibility of parole, or even the death penalty.

Melzer is not the only official to protest Assange’s treatment. On May 3, 2019, the UN Working Group on Arbitrary Detention – a wing of the Human Rights Council – condemned the British government for their excessive methods of incarcerating Assange. The body criticized the UK government for imposing a disproportionate sentence on Assange, noting that he was still detained for violating bail even though the bond related to the bail is no longer favored by the government. It also rebuked the government for incarcerating Assange in Belmarsh prison, a top-level security prison meant to host the most serious of criminal offenders.

According to the Washington Post, Assange is undergoing detention in Belmarsh not only because of its security status, but its close proximity to Westminster Magistrates’ Court, where the government is processing his extradition case. Additionally, Assange is not being held in the “Category A” wing of Belmarsh – which some have referred to as the “Guantanamo Bay” of the UK – but the “Category B” wing, which provides him an individual unit within a cell block of 70 inmates.

Though Assange’s treatment in Belmarsh is not Melzer’s greatest concern regarding the prisoner.

“There’s no chance he’ll get a fair trial in the U.S. That’s where I draw the line.”

Days after this development, a Swedish court announced that Assange should not be extradited to Sweden for the reopened rape investigation against him. The Uppsala District Court, which ruled on the case, declared that the case need not be abandoned. Instead, it noted that Swedish prosecutors, at this point, may only question Assange in the UK. Eva-Marie Persson, Sweden’s Deputy Director of Public Prosecutions, has instead pledged to issue a European Investigation Order, which would allow her to interview Assange in the UK. She may appeal the court’s decision as well.

These events at the UN and Sweden have added even more layers to a case that is already immensely complex. Since an extradition request by Sweden is off the table for now, the U.S. may have an easier time arguing their case in front of the UK, as they would be the only state pursuing his extradition at that time. However, statements made by officials like Melzer reveal the serious pressure on the UK around potentially extraditing Assange to the U.S. The U.S.’s decision to charge Assange with violating the Espionage Act has received sharp condemnation from media and the human rights community around the world, with many viewing such a move as an attack on free speech and free press. If the UK needed any less of a reason to extradite Assange to the U.S., Melzer’s findings may meet that criteria.

The U.S. must submit their official extradition request to the UK by June 11. Once that happens, who knows where the case will go, and what it will bring out.

U.S. Treasury and Commerce Increase Cuba Sanctions Rules

June 4, 2019 by Bruce Zagaris Leave a Comment

Today, the Department of the Treasury’s Office of Foreign Assets Control (OFAC)issued amendments to the Cuban Assets Control Regulations (CACR) to further implement the President’s foreign policy on Cuba. These amendments complement changes to the Department of Commerce’s Bureau of Industry and Security (BIS) Export Administration Regulations (EAR), which Commerce is also unveiling today. These regulatory changes were announced on April 17, 2019 and include restrictions on non-family travel to Cuba.

These actions continue to strengthen sanctions against Cuba in the implementation of the National Security Presidential Memorandum (NSPM) signed by the President on June 16, 2017 titled “Strengthening the Policy of the United States Toward Cuba.” These policies continue to work to channel economic activities away from the Cuban military, intelligence, and security services. The Treasury changes will take effect on June 5, 2019 when the regulations are published in the Federal Register.

The Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, are here.

The State Department also issued a press release on the new sanctions.

The Commerce regulations, which can be found at 15 CFR parts 730-774, are here.

Major elements of the changes in the revised regulations include:

ENDING GROUP PEOPLE-TO-PEOPLE TRAVEL

OFAC is amending the regulations to remove the authorization for group people-to-people educational travel hat was conducted under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people.

There is a “grandfathering” provision, which provides that certain group people-to-people educational travel that previously was authorized will continue to be authorized where the traveler had already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to June 5, 2019.

Travel-related transactions continue to be permitted by general licenses for certain categories of travel and certain authorized export transactions. For more on authorized travel to Cuba, please click here.

A general license permits travel-related transactions for certain travel related to the following activities, subject to the criteria and conditions in each general license: family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or information materials; and certain authorized export transactions.

In accordance with the NSPM, OFAC is adding a new prohibition to restrict certain direct financial transactions with entities and subentities identified on the State Department’s Cuba regulations.

ENDING EXPORTS OF PASSENGER VESSELS, RECREATIONAL VESSELS, AND PRIVATE AIRCRAFT

BIS, in coordination with OFAC, is amending the EAR to make passenger and recreational vessels and private and corporate aircraft ineligible for a license exception and to establish a general policy of denial for license applications involving those vessels and aircraft.

ANALYSIS

The new sanctions will eliminate most of the travel authorized by the Obama Administration. Since the Obama administration had authorized 12 general categories of travel, a new travel industry has arisen in the U.S. for persons wanting to travel to Cuba, including direct flights from various U.S. cities by various airlines, passenger ferries, and a number of boutique travel groups mainly offering trips about Cuban culture. Although it purports to target the Cuban government, it will hurt the middle-class Cubans who sponsored many of the people-to-people exchanges through hosting U.S. travelers in bed- and -breakfasts from converted homes and participated in U.S. tourism.

The sanctions will further isolate the U.S. government in the Western Hemisphere, since opposition to U.S. unilateral sanctions against Cuba have been the most important policy matter in the region.

It will increase opposition in much of the world, especially Western Europe to U.S. unilateral sanctions.

Coming only a few days after the threatened tariffs on Mexico for immigration reasons, the raised sanctions further undermine trade and investment in the Western Hemisphere. Since the sanctions take effect June 5, essentially immediately although with a grandfather for people who have already put into place certain travel by air, the new regulations will disrupt and cause losses for airlines, cruise lines, and travel industry persons who have invested substantially in Cuba travel. The lack of a transition for the sanctions is a blow to this part of the U.S. economy. Yesterday Goldman Sachs downgraded their Q2 2019 economic growth forecasts for the U.S. due to risks stemming from trade conflicts with China and Mexico. JP Morgan said the probability of a U.S. recession in the second half of this year had risen to 40% from 25% a month ago.

The next issue of the IELR will discuss the developments further.