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In Latest Escalation in U.S.-Turkey Row, Erdogan Orders Sanctions on “America’s Justice and Interior Ministers”

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On Saturday, President Recep Tayipp Erdogan of Turkey announced sanctions against two American officials in retaliation to sanctions imposed by U.S. against two Turkish government ministers, the AP reports.

The U.S. Department of the Treasury’s Office of Foreign Assets Control originally froze the assets of Turkey’s Minister of Justice Abdulhamit Gul and Minister of Interior Suleyman Soylu because both officials were determined to have played “leading roles” on the arrest and detention of Andrew Brunson, an evangelical pastor working in the city of Izmir, Turkey. Brunson, 50, leads the Resurrection Church in Izmir, a small congregation of less than 30 people. Erdogan’s authorities arrested him in October 2016, in the aftermath of the 2016 failed coup attempt.

The Turkish government has charged Brunson with espionage, as well as providing assistance to organizations such as the Gulen movement and Kurdistan Worker’s Party, both of which Turkey designates as terrorist groups.  United States government officials have denounced the charges.

On July 25, after nearly two years in detention, Brunson was moved to house arrest because of health concerns, the New York Times reported.

“Pastor Brunson’s unjust detention and continued prosecution by Turkish officials is simply unacceptable,” Treasury Secretary Steven Mnuchin said in a statement.  “President Trump has made it abundantly clear that the United States expects Turkey to release him immediately.”

Similarly, Vice President Mike Pence invoked Brunson’s case during his remarks at the Ministerial to Advance Religious Freedom in Washington, D.C. on July 26. “Pastor Andrew Brunson is an innocent man,” Vice President Pence stated. “There is no credible evidence against him.  Our entire administration has worked tirelessly to secure Pastor Brunson’s release. Yesterday, Turkey released Pastor Brunson from prison, only to place him under house arrest.  This is a welcome first step, but it is not good enough.”

Amid the friction, the Turkish lira has hit record lows. The Wall Street Journal reported that the lira was down 3.8% against the U.S. dollar as of August 6, and that the lira has fallen almost 30% this year.

Meanwhile, Erdogan’s proposed sanctions are vague and primarily symbolic. In a statement delivered in Ankara, he stopped short of targeting any particular U.S. officials by name. He instead ordered Turkish authorities to “freeze the assets of America’s justice and interior ministers in Turkey, if there are any.” As AP points out, the United States government has no such titles, so it is unclear who Erdogan is aiming to target.

State Department’s 2018 Trafficking in Persons Report Stresses Role of Local Communities in Combating Human Trafficking

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Last week, the U.S. State Department released its annual Trafficking in Persons report for 2018.  This year’s report stresses the importance of understanding human trafficking from a local perspective, and outlines community-based initiatives to combat the practice.

The report puts forward a cross-cutting framework for cooperation among multiple stakeholders. In particular, cooperation must take place vertically between, national, regional, and local governments, and horizontally between law enforcement officials, service providers, and other key stakeholders, such as NGOs. According to the report, the most comprehensive model for community-based action would also involve the following steps:

  1. Conducting assessments of the nature and scope of the problem (How many potential victims are there? What demographic is most affected? What are the underlying socioeconomic factors fueling the human trafficking problem in the community?)
  2. Raising awareness on victim identification among stakeholders;
  3. Engaging professionals likely to come into contact with the affected population, such as health care professionals and educators;
  4. Raising community awareness and fighting social stigma towards victims; and
  5. Developing institutional processes and protocols to provide housing, legal assistance, etc. to victims.

In a post on the Department of State’s official blog, Kari Johnstone, the Acting Director of the agency’s Office to Monitor and Combat Trafficking in Persons, also highlighted that human trafficking is at its root a community issue, albeit a multifaceted and far-reaching one. “It is important to remember, however, that despite its pernicious global sweep, human trafficking happens in local communities — in a favorite nail salon or restaurant, in a neighbor’s home, on a farm, or in a city’s streets,” she writes. “Traffickers reap profits from the exploitation of others, leaving individual victims and their local communities to face the consequences.”

Broader attention is being paid to human trafficking, both in the international community and in the United States, in light of the United States controversial sex trafficking law, FOSTA.  The Global Initiative, Babson College’s Initiative on Human Trafficking and Modern Slavery, and the United Nations Migration Agency recently founded the RESPECT initiative: the Responsible and Ethical Private Sector Coalition against Trafficking. The initiative aims to foster public and private sector cooperation to combat human trafficking.

Critics of FOSTA have denounced the legislation for infringing on free speech and sex workers’ rights. The digital rights organization Electronic Frontier Foundation (EFF) recently filed a motion for a preliminary injunction against the government, arguing that the law violates the First and Fifth Amendments.

The full 2018 Trafficking in Persons Report can be accessed here. The EFF complaint can be accessed here.

Senate Subcommittee on Crime and Terrorism Tackles Foreign Interference in U.S. Elections

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On Tuesday, June 26, 2018, the Senate Subcommittee on Crime and Terrorism held a hearing titled, Protecting Our Elections: Examining Shell Companies and Virtual Currencies as Avenues for Foreign Interference. The hearing emphasized the need for more transparent campaign finance disclosure laws in the United States. Foreign actors utilize the same tactics used by domestic special interests to funnel money into our elections. In particular, shell corporations and virtual currencies can be used in tandem to bypass accountability and conceal hidden influence.

David Murray, Vice President of the Financial Integrity Network, delivered the first testimony.  Murray noted that foreign interference in U.S. elections is not novel.  Throughout the Cold War, the Soviet Union repeatedly employed covert influence in an attempt to inflame domestic passions and disrupt American political life. Russia’s interference in our 2016 elections, however, represents the “boldest yet” of these efforts. A January 2017 Intelligence Community Assessment (ICA) called the latest campaign of Russian interference a “significant escalation in directness, level of activity, and scope of effort compared to previous operations aimed at US elections.”

Murray ultimately provided three recommendations to shield against foreign interference in U.S elections. He suggested that the government take the following steps:

  1. Ban anonymous companies;
  2. Enforce the Customer Due Diligence (CDD) rule;
  3. Require reporting of cross-border funds transfers.

These three steps, if implemented together, would work to mutually reinforce one another, and help banks and other financial intermediaries identify and intercept foreign influence campaigns.

Scott Dueweke, President of the Identity and Payments Association (IDPAY) and director of DarkTerror, focused in his testimony on how virtual currencies function as a vehicle for anonymous political contributions. Every U.S. state except for Kansas currently permits campaign contributions in Bitcoin. The FEC requires that campaigns and PACs treat Bitcoin contributions as “in-kind donations” capped at $100, and that they verify donor identity. The disclosure laws with regards to super PACs are considerably less transparent, however – donors can essentially use virtual currencies to make unlimited, anonymous contributions to super PACS.

Much of the concern with regards to virtual currencies and foreign election interference has concentrated on decentralized cryptocurrencies, such as Bitcoin. Dueweke noted, however, that the Russians don’t need to rely on cryptocurrencies to maintain their influence campaign. Russian operatives linked to the Moscow-based Internet Research Agency purchased politically-themed Facebook ads during the election cycle using Qiwi, a centralized Russian-language virtual currency with which the credit card giant Visa partnered with in 2011 to offer a virtual wallet. Other similar currencies favored by Russian operatives include WebMoney, Yandex.Money, and PerfectMoney.

In some ways, these centralized virtual currencies pose a greater threat than do decentralized cryptocurrencies. Like cryptocurrencies, centralized virtual currencies often lie outside of the purview of the Western financial system – but they lack the accountability of a Bitcoin’s public, permanent blockchain ledger.

In the final testimony, Sheila Krumholz from the Center for Responsive Politics stressed that, in the wake of the Citizens United decision, our political system has grown dramatically more vulnerable to foreign interference. “Regulatory inaction has led to much less transparency in terms of the original sources of these funds,” Krumholz, stated. “[I]t would be foolish to think that the same types of outside forces that sought to undermine the integrity and independence of our electoral system two decades ago would not be interested and perhaps even more confident in their abilities to manipulate electoral outcomes to favor their own interests.”

You may access the full hearing, including video and the written testimonies, here.

With Carpenter v. United States, Supreme Court Edges Fourth Amendment Doctrine into the 21st Century

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Late last week, the Supreme Court ruled that the government obtaining cell site location information (CSLI) from a telephone company constitutes a Fourth Amendment “search,” and requires a warrant. The 5-4 ruling in favor of petitioner Timothy Carpenter is the latest in a string of seminal data privacy cases working their way through the U.S. court system.

Factual and Procedural Background

In 2011, law enforcement officials arrested four men accused of robbing a series of Radio Shack and T-Mobile stores in Detroit. Based on information and call records provided by a cooperating suspect, prosecutors applied for warrants to obtain the cell phone records of Timothy Carpenter and several other suspects under the Stored Communications Act (SCA).

The court subsequently issued two orders compelling MetroPCS and Sprint, Carpenter’s cell phone providers, to disclose cell site location information for Carpenter’s cell phone. By triangulating thousands of disclosed data points, the government confirmed that Carpenter was present at the site of the robbery at the precise moment when the robbery occurred. He was later convicted in all but one of the firearm counts and sentenced to over 100 years in prison.

The case proceeded to the Court of Appeals for the Sixth Circuit. The appeals court affirmed the lower’s court’s ruling, reasoning that Carpenter forfeited his “reasonable expectation of privacy” when he shared his location data with his wireless carriers.

Implications for Foreign Surveillance and Intelligence-Gathering

On June 22, the Supreme Court reversed and remanded the Sixth Circuit’s decision in a 5-4 ruling. Writing for the majority, Chief Justice John Roberts cautioned against drawing conclusions on the broader implications of the Carpenter decision, including with regards to foreign surveillance. He wrote:

This decision is narrow. It does not express a view on matters not before the Court; does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security.

Nonetheless, commentators have begun to cautiously foretell what Carpenter may mean for data collection and surveillance in national security and international criminal enforcement contexts. In a blog post for Lawfare, David Kris considers the implications for single-user collection of CSLI under the Foreign Intelligence Surveillance Act as well of bulk collection of non-location call data and metadata under FISA and the USA Freedom Act of 2015. Under the third-party doctrine, courts have generally held that a person loses the reasonable expectation of privacy when he or she voluntarily discloses information to a third-party, such as an ISP. Kris sees Carpenter, however, as drawing a distinction between records obtained via 21st century technology, such as CSLI, from those obtained via 20th-century means.  “The gravamen of the decision in Carpenter,” he writes, “is that retrospective, comprehensive, long-term CSLI is materially distinguishable from old-school business records traditionally obtained without a warrant from third parties.”

Kris argues that Carpenter carves out an exception from the third party doctrine for records that rely on 21st century technology, such as CSLI.   He distinguishes 21st century records from the more traditional 20th century records, such as telephone toll records and financial documents, on the grounds that the former are more invasive, and are not explicitly disclosed to a third party by the data subject. With regards to both single-user and bulk foreign intelligence collection, Kris predicts that the presence of modern 21st century technologies in the collection process will determine whether a particular act of foreign intelligence collection constitutes a Fourth Amendment search post-Carpenter.

Still, speculating on what Carpenter may mean in a national security or international enforcement context is difficult, if not impossible. The details of national security-related cases implicating data privacy are particularly sensitive; crucial case-specific details thus remain classified. Without those details, it becomes challenging to accurately predict how the courts will rule across cases that differ in the type of data obtained by the government, the purpose of the data collection, the sheer scope of collection, and other key characteristics.

In the upcoming terms, the Court is likely to agree to hear more cases that implicate law enforcement’s access to e-evidence, both stored domestically and abroad, and the individual’s right to privacy. Thus far, the Roberts Court seems intent on preserving the balance between those two competing interests, even as technology progresses. This Court has steered clear, however, of updating relevant statutes, such as FISA and the SCA, to better take into account the capabilities of 21st century technologies – that is a job it considers better suited for Congress.

Family Separation at the Border: Running Afoul of International Law?

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In April, the New York Times reported that U.S. immigration officials had separated more than 700 migrant children from adults claiming to be their parents at the U.S.-Mexico border. The policy was met with widespread criticism once revealed, with critics denouncing it as immoral, inhumane, and even unconstitutional. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” Sen. Dianne Feinstein (D-Calif.) said in a statement. “This is not what the United States of America should be.” In yet another rebuke of the policy, a district judge in San Diego denied a motion last week to dismiss a class action lawsuit filed by the American Civil Liberties Union against U.S. Immigration and Customs Enforcement over the child separations.

While criticism has mostly centered on whether the policy is morally inhumane or in violation of U.S. law, some organizations and experts have also suggested that the family separation policy violates international law. In particular, on June 5, a spokesperson for the U.N.’s Office of the United Nations High Commissioner for Human Rights (OHCHR), Ravina Shamdasani, denounced the Trump administration’s family separation policy at the border as “arbitrary” an “unlawful interference in family life, and a “serious violation of the rights of the child.” Shamdasani noted that, while the U.S. is the only country not to have ratified the UN Convention on the Rights of the Child, it nonetheless has an obligation to adhere to generally accepted human rights principles. “The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles,” Shamdasani stated. “The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US, migration control appears to have been prioritized ahead of the effective care and protection of children.”

Respect for family unity is a core tenet of many international human rights treaties and agreements. Article 9(1) of the Convention on the Rights of the Child states that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” Similarly, Article 17(1) of the 1969 American Convention on Human Rights recognizes the family as “the natural and fundamental group unit of society” that “is entitled to protection by society and state.” Lastly, Article 17(1) 1966 International Covenant on Civil and Political Rights (ICCPR) declares that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”

Of these international agreements, the United States has only signed and ratified the ICCPR. However, the extent to which the principle of family unity features in international human rights documents suggests that the principle may be considered part of the canon of customary international law. While states have a legitimate authority to control the flow of immigrants and asylum-seekers over their borders, they also have a duty to honor their international human rights commitments.

For more on the principle of family unity in international law, see the following:

“Governing Rule 8: Respect for Family Unity,” in Sohn, L. B., & Buergenthal, T. (Eds.). (1992, October). The movement of persons across borders. American Society of International Law.

Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.

Starr, S., & Brilmayer, L. (2003). Family separation as a violation of international law. Berkeley J. Int’l L., 21, 213.

Van Bueren, Geraldine. The international law on the rights of the child. Vol. 35. Martinus Nijhoff Publishers, 1998.

Venezuelan Regime Frees Dozens of Political Activists in Apparent Gesture of Good Will

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The government of Venezuelan president Nicholas Maduro claims to have released 40 political activists on Saturday in a gesture of apparent political good will, the New York Times reports. The Saturday releases follow the alleged release of 39 activists on Friday. The regime originally jailed the activists for participating in political protests in 2014 and 2017 against the government, which had turned violent, resulting in 170 deaths.

Human rights groups allege that the number of activists the government claims to have released are inflated, and put the true number closer to a total of 40 over the two days. Among those released are Daniel Ceballos, the former mayor of San Cristobal, and Angel Vivas, a retired general. Both men are vocal critics of the Maduro regime. Maduro’s most prominent critic, Leopoldo Lopez, however, was not among the released.

 

Venezuela’s Descent

Oil-rich Venezuela had once been one of the most prosperous countries in South America. Up until the early 1980s, Venezuela was designated by the World Bank as an upper-middle income country – one of only four countries in Latin America to achieve that designation. It also boasted a stable, center-left democracy. Venezuela’s prosperity at the time was largely buoyed by high oil prices – the country has the largest known petroleum reserves in the world.

The Venezuelan economy contracted dramatically in the early 1980s, when global oil prices dipped. As a result, the country experienced massive inflation and shortages. Oil prices soared again in 2000, months after Hugo Chavez took office. Chavez’s far-left socialist economic policies consolidated and extended the government’s control over oil wealth. The Chavez government weakened private businesses and institutions on one hand, while simultaneously managing the distribution of the country’s oil wealth among the Venezuelan people. This strategy further increased the Venezuelan people’s dependence on the government, and made the economy even more vulnerable to external shock from fluctuating global oil prices.

Now, petroleum revenue accounts for roughly 95% of the country’s exports and 50% of its GDP.  The effects of the country’s heavy reliance on and mismanagement of oil revenue have proven devastating.  Between 2015 and 2016, a startling two thirds of Venezuelans now report involuntary weight loss due to hunger.

The current crisis began in 2014 with a series of protests against the government of Nicolas Maduro, Chavez’s successor and former vice president.  Maduro has continued many of the economic policies of his predecessor, but lacks Chavez’s political charisma and savvy. The rupture in this political cult of personality, coupled with some economic bad fortune — oil prices tanked just as Maduro took office – have rendered the current Venezuelan president a widely unpopular leader. Maduro has responded to his critics by employing increasingly authoritarian tactics, including arbitrarily arresting and killing political dissenters.

 

Response of the International Community

The international community has taken some steps to pressure the Maduro regime to step down, but has stopped short of a unified response. The Trump administration has wisely avoided widespread economic sanctions that would punish the poor, instead opting for more narrow sanctions targeting Maduro administration officials and elites. The United States also recommended today that Venezuela be removed from the Organization of American States (OAS).

In February of this year, International Criminal Court prosecutor Fatou Bensouda announced that her office would be opening a preliminary examination into widespread human rights violations committed by the Maduro regime. The ICC’s preliminary examination period tends to be arduous, however, and may take several years.

Perhaps the most effective strategy would be for the U.S. to partner with regional allies, such as Brazil, Chile, and Mexico, to politically isolate Maduro and force his hand. The Trump administration’s bellicose posture toward many of the Central and South American governments, however, makes significant regional diplomatic cooperation less likely.

DC Circuit Appeals Court Rules that U.S. Government Cannot Forcibly Transfer U.S. ISIS Suspect

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On May 7, 2018, the United States Court of Appeals for the District of Columbia Circuit ruled that the United States cannot forcibly transfer an American ISIS suspect being held in Iraq to another country without first proving that he is an enemy combatant. The decision has significant implications for wartime presidential power, as well as for individual citizenship rights. The case is Doe v. Mattis.

The suspect, a “John Doe,” is a U.S. and Saudi Arabian dual citizen currently in the custody of the U.S. military in Iraq. The U.S. government argues that it has the authority to forcibly transfer Doe to another country and relies on two lines of reasoning to support that claim. In the first line of reasoning, the government marshals Supreme Court precedent from Munaf v. Green and Wilson v. Girard to suggest that, once a citizen leaves U.S. territory, the Executive can forcibly transfer him to any country that possesses a “legitimate sovereign interest” in him. In the second line of reasoning, the government notes that executive power generally expands during time of war, and thus the executive is afforded greater discretion in the war-time prosecution of enemy combatants.

While the D.C. Circuit acknowledges that the Executive is afforded broader deference in war-time prosecution, it notes that Doe’s status as an American citizen complicates matters. The D.C. Circuit’s opinion relies primarily on the Supreme Court ruling in Hamdi v. Rumsfeld (2004). In Hamdi, the Supreme Court ruled that, before the Executive can forcibly transfer a U.S. citizen as an enemy combatant, it must give him the opportunity to contest the government’s assertion that he is an enemy combatant before a neutral arbiter. “The Hamdi Court believed it ‘unlikely’ that its decision would have a “dire impact on the central functions of warmaking.” 542 U.S. at 534. At the same time, the Court thought it ‘vital’ that it ‘not give short shrift to the values that this country holds dear or to the privilege that is American citizenship,’” the D.C. circuit’s opinion reads. “We follow the Court’s guidance today.”

See the opinion below.

Unsealed_opinion_barring_transfer_5.9.18

UK Parliament Votes to Crack down On Anonymous Offshore Companies

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On Tuesday, the British parliament voted to add an amendment to the UK Sanctions and Anti-Money Laundering Bill to require 14 overseas territories, among them the Cayman Islands and the British Virgin Islands, to implement public ownership registers by 2020.

The bipartisan amendment was introduced by the Labour Party’s Margaret Hodge and the Conservative Party’s Andrew Mitchell. The Hodge-Mitchell Amendment is an effort to fight corruption and money laundering in the U.K.’s offshore territories.

The amendment is part of a renewed push at both the E.U. and national levels to increase transparency of beneficial ownership information. On the E.U. level, the recently-adopted 5th Anti-Money Laundering Directive requires that member states establish registers of beneficial ownership information and make that information accessible shortly after the entry into force of the directive.

Experts have speculated about how member states will transpose the 5th AMLD into domestic law. With Brexit looming, the U.K. has been particularly subject to such scrutiny. The passage of the Hodge-Mitchell amendment suggests that the U.K. is committed to ensuring cross-border cooperation and harmonization of AML laws with its E.U. counterparts.

 21st Annual IBA Transnational Crime Conference

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16-18 May 2018, Sheraton Grand, Krakow, Poland

A conference presented by the IBA Criminal Law Committee and the IBA Business Crime Committee

This event will cover some of the hottest criminal and anti-corruption topics facing lawyers in a digital age, including exploration of current legal disputes and new issues for the future.

The conference offered you unparalleled networking opportunities with criminal defence and regulatory practitioners, prosecutors, in-house counsel, international business crime lawyers, compliance officers and law enforcement officials from around the world.

TOPICS INCLUDE:
  • Deferred Prosecution Agreements and other negotiated settlements: Protecting the rights of corporations and individuals
  • Anti-corruption developments around the globe
  • Double jeopardy in transnational crime
  • A new era for attorney-client privilege
  • How to react to cybercrime
  • Managing compliance monitors
  • Sanctions
  • Asset seizure
  • Developments in Criminal Tax

Find more information and register online here.

U.S. Supreme Court Rules 5-4 that the Alien Tort Statute Cannot Be Used To Sue Foreign Corporations

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In a 5-4 ruling, the U.S. Supreme Court ruled today that the Alien Tort Statute cannot be used to sue foreign corporations. With Justice Kennedy writing for the majority, the Court affirmed the Second Circuit’s decision to dismiss a lawsuit against Arab Bank PLC, a Jordanian financial institution with a New York branch. The litigants claimed that the bank had facilitated transactions that had benefited terrorists that had committed attacks in Israel and the Palestinian territories. Kennedy was joined in his opinion by the four other conservative justices on the Court.

Ensconced in the Judiciary Act of 1789, the ATS reads: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Kennedy notes that the ATS was relatively obscure and only enacted sparingly over its first 190 years; after the horrors of World War II and the ensuing Nuremberg trials, however, the courts “began to give some redress for violations of international human-rights protections that are clear and unambiguous.” (9)

The petitioners in the Arab Bank case are plaintiffs in five lawsuits suits filed against Arab Bank in the U.S. District Court for the Eastern District of New York. The majority of plaintiffs are foreign nationals, and the majority of accusations they levy against the bank involved actions that occurred entirely overseas. In particular, the plaintiffs allege that the bank maintained accounts for terrorist and militant groups, notably Hamas, and their front groups, as well as that the bank allowed the funds to be used to compensate the families of suicide bombers.  The only allegation that involves actions committed on U.S. soil relates to the claim that the bank used its New York branch to clear dollar transactions that ultimately benefited terrorists.

Up until now, there had been a circuit split on whether the ATS applies to foreign corporations. While the Fourth, Seven, Ninth, and D.C. Circuits have all ruled that the ATS does apply to foreign corporations, the Second had ruled that the Supreme Court should decide the question. The Supreme Court, in ruling in favor of Arab Bank, ultimately concluded that the ATS does not extend liability, whether it be criminal or civil, for international human rights violations to foreign corporations.

The case is Jesner v. Arab Bank. For the full opinion of the Court, see here. There will be more analysis of the full opinion in the April issue of the International Enforcement Law Reporter.

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