IELR Blog

Official Blog of the International Enforcement Law Reporter

British Court Denies U.S. Extradition Request for Assange Based on Mental Health Concerns Arising Out of Potential U.S. Incarceration

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On January 4, 2020, Judge Vanessa Baraitser of Westminster Magistrates’ Court denied the extradition request of the United States for WikiLeaks founder Julian Assange, 49, because of Assange’s mental condition.   Her 132-page ruling  (“extradition decision”) is a victory for Assange, but the U.S. Government will undoubtedly appeal.[1]

Background

The decision covers the following issues: a. the UK-US Extradition Treaty prohibits extradition for a political offense and hence the court lacks jurisdiction to hear this case; b. the allegations do not meet the statutory “dual criminality” requirements; c. extradition would be unjust and oppressive by reason of the lapse of time; d.  extradition is barred by reason of extraneous considerations; e.  extradition is in breach of the European Convention on Human Rights (“the ECHR”); f. extradition should be refused because it would be unjust and oppressive by reason of Mr. Assange’s mental condition and the high risk of suicide; and g. extradition would be an abuse of process.

There have been four indictments, including the superseding indictments.  Essentially, the U.S. charges Assange with computer intrusion and conspiracy to commit computer intrusion, espionage (e.g., obtaining, receiving and disclosure of “National Defense Information”).

In particular, the superseding indictment charges Assange conspired with former U.S. military and intelligence officer Bradley Manning (now known as Chelsea Manning) to obtain, inter alia:                                                                                                                                                                                                                                                                                                                                                                                          briefs, the diplomatic cables and the Iraq rules of engagement files to the extent that they contained the names of individuals in Afghanistan, Iraq and elsewhere in the world who risked their safety and freedom by providing information to the US and its allies, from those with lawful possession to those not entitled to receive them.

The extradition decision provides the history, starting on December 2, 2010, when the Swedish Government issued a European Arrest Warrant for Assange on rape charges.  On June 19, 2012, after the court granted extradition, from which Assange appealed, Assange took refuge in the Ecuadorian Embassy.  On May 19, 2017, the Swedish prosecutor announced she was discontinuing the case                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              On December 21, 2017, the Ecuadorean Government granted Assange diplomatic status. On December 22, 2017, the U.S. requested extradition.

The court held evidentiary hearings in February 2020 and September-October 2020.

The Decision with Respect to Mr. Assange’s Medical Condition and the Risk of Suicide

With respect to whether extradition should be refused because it would be unjust and oppressive by reason of Mr. Assange’s mental condition and the high risk of suicide, Assange’s counsel submitted a report of the Centre for Constitutional Rights in conjunction with the Allard K. Lowenstein International Human Rights Clinic (“the Darkest Corner”) 2017 concerning likely conditions of pre- and post-trial confinement if Assange was extradited, tried and convicted.  In particular, persons convicted of espionage and terrorism crimes are often subject to special administrative measures (SAM).

After reviewing the psychiatric experts for Assange and the U.S. Government, Judge Baraitser found  “that the risk that Mr. Assange will commit suicide is a substantial one.”[2]

Judge Baraister continued that “Mr. Assange faces the bleak prospect of severely restrictive detention conditions designed to remove physical contact and reduce social interaction and contact with the outside world to a bare minimum. He faces these prospects as someone with a diagnosis of clinical depression and persistent thoughts of suicide.”[3]  According to her decision, the judge deems “Mr. Assange’s risk of committing suicide, if an extradition order were to be made, to be substantial.”[4]  Judge Baraister explained “I am satisfied that, if he is subjected to the extreme conditions of SAMs, Mr. Assange’s mental health will deteriorate to the point where he will commit suicide.”[5]

The judge explained “I accept that oppression as a bar to extradition requires a high threshold. I also accept that there is a strong public interest in giving effect to treaty obligations and that this is an important factor to have in mind. However, I am satisfied that, in these harsh conditions,  Mr. Assange’s mental health would deteriorate causing him to commit suicide with the “single minded determination” of his autism spectrum disorder.”[6]  She cited as precedent the cases of Wolkowicz and Lauri Love.

Marc Raimondi, acting director of Public Affairs for the U.S. Department of Justice, said the DOJ was extremely disappointed but noted that “the court rejected all of Mr. Assange’s arguments regarding political motivation, political offense, fair trial, and freedom of speech.”  The U.S. promised to appeal the decision and asked for Assange to be remanded in custody pending the appeal.[7]

Analysis

The decision is a blow to efforts of the U.S. Government to extradite persons accused of espionage and terrorism crimes, because it essentially opines that persons who are suicidal and subject to SAM may suffer from unduly oppressive conditions, tantamount to cruel and unusual punishment.    The importance of the case bears monitoring as it goes through the appeal process.

The current issue of the IELR will have a more comprehensive discussion of the decision and its implications.

[1]    Government of the United States of America v. Julian Paul Assange, District Judge (Magistrates’ Court) Vanessa Baraitser In the Westminster Magistrates’ Court, Decision, Jan. 4, 2020 https://www.judiciary.uk/wp-content/uploads/2021/01/USA-v-Assange-judgment-040121.pdf.

 

[2]    Extradition decision, paragr. 337  at p. 109.

[3]    Id., paragr. 344 at p. 111.

[4]    Id., paragr. 346, at p. 112.

[5]    Id., paragr. 355, at p. 116.

[6]    Id., paragr. 362, at p. 118.

[7]    Claudia Rebaza, Kara Fox and Vasco Cotovio, UK judge denies US request to extradite Julian Assange, CNN, Jan. 4, 2021.

Congress Passes Anti-Money Laundering Act over President’s Veto

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On January 1, 2020, the Senate voted to override President Trump’s veto of the annual military policy bill (the National Defense Authorization Act – NDAA).  Division E of the Act is the Anti-Money Laundering Act of 2020 (the AMLA or Act), which contains a number of international enforcement elements.  This post discusses selected international enforcement aspects, except for the beneficial owner/entity transparency provisions that were discussed in the December 2020 issue of the International Enforcement Law Reporter.

Increased Authority to Issue and Enforce Correspondent Account Subpoenas

The Act increases the ability of the Department of Justice (DOJ) and Treasury’s authority to issue and enforce correspondent account subpoenas under 31 U.S.C. § 5318(k).  Before, the DOJ and Treasury could issue such subpoenas to any foreign bank with a correspondent account in the United States and could “request records related to such correspondent account.”[1]  The Act widens this authority to permit DOJ to request “any records relating to the correspondent account or any account at the foreign bank, including records maintained outside of the United States,” if the records are the subject of an investigation concerned a violation of U.S. criminal laws, a violation of the Bank Secrecy Act (BSA), a civil forfeiture action, or a Section 5318A investigation.[2]

If a foreign financial institution does not comply, the Act authorizes the Attorney General to seek contempt sanctions from a court, and the Attorney General or Secretary of the Treasury may direct covered U.S. financial institutions to end their correspondent relationships with the non-compliant foreign financial and impose penalties on those institutions that fail to do so.[3]

Pilot Project to Share SAR Information Internationally

FinCEN has promulgated guidance allowing sharing of Suspicious Activity Reports (SARs) information internationally with foreign parent organizations or U.S. affiliates in other countries.[4]   The Act requires the Treasury within one year after the enactment of legislation to issue rules that establish a pilot program for financial institutions to share information related to SARS “with the institution’s foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks.”[5]

The Act allows the Secretary of the Treasury to prohibit sharing with certain jurisdictions, such as state sponsors of terrorism, states subject to sanctions imposed by the U.S. government, or those the Secretary has determined cannot reasonably protect the security and confidentiality of such  information.[6]

Provisions on Cryptocurrency and Antiquities Dealers, Advisors, and Consultants

The Act adds to the definition of financial institution and money transmitting businesses under the BSA, which are subject to anti-money laundering due diligence, businesses engaged in the exchange of transmission of “value that substitutes for currency.” [7]   The Act also expands the definition of financial institution to include antiquities dealers, advisors, and consultants.

The Act requires Treasury to prepare a study within one year that evaluates money laundering and terrorist financing through the art trade, including the markets that should be subject to regulation, the extent to which the regulations, if any, should target high-value trade in works of art, and “the need, if any, to identify persons who are dealers, advisors, consultants, or any other persons who engage as a business in the trade in works of art.”[8]

Foreign Financial Intelligence Unit Liaisons (FFIUL)

  • 6108 of the Act requires the appointment of not more than six FFIULs, co-located in a U.S. embassy, U.S., or a foreign government facility, among other things, to facilitate capacity building and outreach on AML/CFT regulatory and analytical frameworks; and coordinate with representatives of the DOJ at US Embassies.[9]

International Coordination

  • 6112 of the Act requires the Secretary of the Treasury to work with foreign counterparts, including bilateral contacts, the Financial Action Task Force, the IMF, the World Bank, the Egmont Group of FIUs, the OECD, the Basel Committee on Banking Supervision, and the UN, to promote stronger AML frameworks.

Financial Services De-Risking

  • 6213 of the Act states Congress supports effective measures to stop the flow of illicit funds and promote AML/CFT and sanctions goals, and AML/CFT and sanctions policies that do not unduly hinder or delay the efforts of legitimate humanitarian organizations to fulfill the needs of humanitarian crisis, prevent or alleviate human suffering. § 6213(c) requires the GAO to conduct a de-risking analysis and evaluate the effect of AML/CFT on individuals and entities, including charities, embassy accounts, money-service businesses, and correspondent banks that have been subject to categorical de-risking by financial institutions operating in the U.S. and or otherwise have difficulty accessing or maintaining certain financial services in the U.S. and evaluate the consequences of financial institutions de-risking entire categories of relations with individuals and entities mentioned above in this section. The GAO should propose changes to those requirements resulting in de-risking.

GAO Study on Fighting Illicit Networks and Detecting Human Trafficking and Drug Trafficking

  • 6504(c) of the Act requires the GAO to study how a range of payment systems and methods, including virtual currencies in online marketplaces, are employed to facilitate human trafficking and drug trafficking.

Treasury Study and Report on Trade-Based Money Laundering

  • 6505 of the Act requires Treasury to conduct a conduct a study, in consultation with appropriate private sector stakeholders, academic and other international trade experts, and Federal agencies, on trade-based money laundering and proposed strategies to combat trade-based money laundering.

Treasury Study and Strategy on Money Laundering by the PRC

  • 6506 of the Act requires the Treasury to conduct a study, relying substantially on information obtained through the trade-based money laundering analyses of the GAO, on, inter alia, the extent and effect of illicit finance risk relating to the PRC Government and Chinese firms, and a strategy to counter Chinese money laundering.

Treasury Study on Efforts of Authoritarian Regimes to Exploit the Financial System of the U.S.

  • 6507 of the Act requires the Treasury Secretary and Attorney General, in consultation with the heads of other relevant national security, intelligence, and law enforcement agencies, to conduct a study for Congress on how authoritarian regimes in foreign countries and their proxies use the financial system of the U.S., inter alia, to: “(1) conduct political influence operations; (2) sustain kleptocratic methods of maintaining power; (3) export corruption; (4) fund nongovernmental organizations, media organizations, or academic initiatives in the United States to advance the interests of these regimes; and (5) otherwise undermine democratic governance in the United States and the partners and allies of the United States.” The study should make recommendations for legislative or regulatory action, or regulatory action, or steps to be taken by U.S. financial institutions that would address exploitation of the financial system of the U.S. by foreign authoritarian regimes.

Kleptocracy Assets Recovery Reward Act

  • § 9701-03 of Division H of the NDAA establishes the Kleptocracy Asset Recovery Rewards Program in the Department of the Treasury, and authorizes appropriations for the purpose of paying rewards under the program.

Combating Russian Money Laundering

  • § 9711-9714 of Division H of the NDAA requires a report if the Secretary of the Treasury determines that certain institutions, transactions, or money laundering activities require domestic financial institutions or domestic financial agencies to take special measures described in 31 U.S.C. § 5318A(b), and permit implementation of such special measures.  These provisions would enable Treasury to impose special measures on transactions emanating from Russia, certain Russian financial institutions, and/or certain categories of transactions.

The current issue of the IELR will have a more comprehensive discussion of the AMLA and related provisions.

[1]    31 U.S.C. § 5318(k)(3)(A).

[2]    AMLA, § 6308 (31 U.S.C. § 5318(k)(3)(A)(i) as revised).

[3]    AMLA, § 6308 (31 U.S.C. §5318(k)(D), as revised).

[4]    FinCEN, FIN-2010-G006, Sharing Suspicious Activity Reports by Depository Institutions with Certain U.S. Affiliates (Nov. 23, 2010), https://www.fincen.gov/sites/default/files/shared/fin-2010-g006.pdf.  FinCEN, Interagency Guidance on Sharing Suspicious Activity Reports with Head Offices and Controlling Companies, January 20, 2006 https://www.fincen.gov/resources/statutes-regulations/guidance/interagency-guidance-sharing-suspicious-activity-reports.

[5]    AMLA, § 6212 (adding 31 U.S.C. § 5318(g)(8)(B)(i).

[6]    AMLA, §6212 (adding 31 U.S.C. § 5318(g)(8)(C).

[7]    AMLA, § 6102(d).

[8]    AMLA, § 6111(e).

[9]    AMLA, § 6108, adding  31 U.S.C. § 310(h).

U.S. Secretary of State Makes Historic Visit to Suriname and Guyana and Promises More Law Enforcement Assistance

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On September 17-18, 2020, U.S. Secretary of State Michael Pompeo made the first visit to Suriname and Guyana.  It coincided with promises that the U.S. would increase its technical assistance with respect to law enforcement and national security issues in both countries.

   Suriname

With respect to Suriname Secretary Pompeo traveled there on September 17 and met with President Chandrikapersad “Chan”  Santokhi , and key members of his cabinet. Santokhi was elected in July.

As part of his travel, the State Department issued a statement underscoring existing U.S. assistance to combat narcotics trafficking.  The statement noted that Suriname participates in various programs funded by the State Department’s Bureau of International Narcotics and Law Enforcement (INL) in an effort to stop the use of Suriname as an intermediary jurisdiction for drugs and other contraband.

The State Department has engaged in training for Suriname’s Port Control Unit, which seized more than 3000 kg. of cocaine in 2019, including a 2,300 kg seizure, one of the largest in Suriname’s history.

In addition, the U.S. government has committed more than $600,000 towards an anti-money laundering risk assessment, which identifies vulnerabilities in Suriname’s anti-money laundering (AML) regime.  The Financial Action Task Force requires a national risk assessment by each country because at both country and financial institution levels  AML must be conducted on a risk-based assessment (RBA).  The RBAs by financial institutions must depend on the national risk assessment.  Although Suriname is comparatively small in population and economy, it has a large territory and multiple sources of risks of laundering, such as informal gold mining, narcotics and gold smuggling from Venezuela and other neighboring countries, human trafficking, and the use as casinos in Suriname as a vehicle to launder.

The State Department has congratulated the fact that Suriname voted in free and fair elections and has apparently shown it wants to take a new direction based on transparency, rule of law, and democracy.  To support the new direction, the U.S., in addition to increasing trade and investment, is deepening its security relationship and supporting Suriname’s economic growth.  The State Department says it is prepared to help Suriname and its engagement with the international Monetary Fund and other international financial institutions.  In early February, it was revealed that $100 million in private citizens’ savings had disappeared from the Central Bank of Suriname (CBvS).[1]

The new Surinamese President is a former justice minister and police commissioner.  The loser of the election, president Desiré “Desi” Bouterse took power through a coup.  He has been convicted of narcotics trafficking in the Netherlands and is convicted in Suriname for ordering the execution of political opponents in 1982.[2]

The U.S. State Department has recognized that Suriname’s leaders and civil society must establish sustainable models to extract natural resources transparently and safely and use the resources to benefit the Surinamese people.  According to the State Department’s press release, U.S. investment in Suriname’s gold sector offers a model.  The State Department aims to work with Suriname to combat corruption.

In a brief press conference the two leaders fielded questions mainly concerning potential U.S. political and military pressure on Venezuela and the role of China in the region.

Guyana

On September 17, 2020, Secretary Pompeo also visited Guyana. After much controversy over the election of March 2 between incumbent David Granger, and Irfaan Ali, Granger challenged the results for months.  Granger eventually relinquished his challenged after the U.S. imposed sanctions on members of Granger’s administration for undermining democracy.[3]

The State Department issued a statement for the Guyana visit.  Pursuant to the Caribbean Basic Security Initiative, the U.S. provides technical assistance to Guyana on law enforcement professionalization, strengthening the rule of law, and combating transnational crime.  In particular, the assistance has focused on increased training for crime scene investigators, forensic video analysis, trial advocacy, and the development of a curriculum for continuing education programs for magistrates.  The program also focuses on training prosecutors and magistrates on implementing maritime security law.  The training has resulted in more criminal prosecutions and convictions and faster adjudications.

The State Department has assisted in training Guyana’s Port Control Unit to combat the trafficking of cocaine and other illicit goods through Guyana.  The U.S. Coast Guard provides training and mentoring to the Maritime Administration Department (MARAD) in order to improve port security.  The U.S. military trains the Guyana Defense Forces personnel annually.  The training includes a current student at the U.S. Coast Guard Academy.

After Secretary Pompeo’’s visit, a bilateral Shiprider Agreement will come into force, enabling joint maritime and airspace patrols to interdict narcotics.  The U.S. government has recently given $200,000 in equipment and interceptor boat parts to strengthen Guyana’s ability to patrol its territorial waters.

The U.S. has helped the development of Guyana’s energy sector through technical partnership on best practices for energy sector policy, regulation, and revenue management.  The U.S. Department of the Treasury’s Office of Technical Assistance supports training and development within the Guyana Revenue Authority’s Large Taxpayer Division. These recommendations will help Guyana.

Early in Ali’s administration racial tensions have arisen.  On September 6, badly mutilated bodies of two cousins, Isiah and Joel Henry, both black teenagers, were discovered in a field. Thereafter, in an apparent reprisal killing a 17-year-old Indo-Guyanese boy was found chopped and beaten to death.[4]

Meanwhile, overhanging the visit are mounting tensions between Venezuela, the neighbor of Guyana and Suriname.  Guyana and Venezuela have had a 120-year dispute over their boundary and now the matter is in the International Court of Justice (ICJ).  Two years ago Venezuela seized Guyanese ships and disputes jurisdiction of the ICJ.[5]  The disputed Essequibo area represents about two-thirds of Guyana’s 83,000 square miles.[6]

In the recent past U.S. initiatives towards the Caribbean have been in response to U.S. national security: in the 1980s the civil wars in Central America, the leftist administration of Maurice Bishop in Grenada, narcotics trafficking; more recently, counter-terrorism, money laundering, and human trafficking.  The next issue of the IELR will discuss these developments in more detail.

[1]    Dr. Scott MacDonald, Suriname and the Need for Good Governance March 10, 2020, CSIS, https://www.csis.org/analysis/suriname-and-need-good-governance.

[2]    Jacqueline Charles, Pompeo makes history as first U.S. secretary of state to visit Suriname and Guyana, Miami Herald, Sept. 16, 2020.  With Pompeo trip, oil boom raises focus on Guyana, Suriname, France24, Sept. 17, 2020.

[3]    With Pompeo trip, oil boom raises focus on Guyana, Suriname, supra.

[4]    Charles, supra.

[5]    Molly Quell, Border Dispute Between Guyana, Venezuela Hits UN Court, Courthouse News Service, June 30, 2020.

[6]    Charles, supra.

U.S. Brings Criminal Complaint and Imposes Sanctions against Russians for Election Interference

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On September 10, 2020, the U.S. Attorney for the Eastern District Virginia brought a criminal complaint against a Russian national for his alleged role in a conspiracy to use the stolen identities of real U.S. persons to open fraudulent accounts at banking and cryptocurrency exchanges.  Also on September 10, 2020, the U.S. Treasury Department imposed sanctions against Andriy Derkach.  He is a member of the Ukrainian Parliament.  Treasury says he has been “an active Russian agent for over a decade.”  Treasury accuses him of disseminating “edited audiotapes” and “substantiated allegations against U.S. and international political figures.”  The Treasury Department also imposed sanctions against three employees of the Internet Research Agency (IRA).   IRA is a troll farm in Russia that disseminates disinformation on social media as part of the Russian election interference campaign in 2016.

Complaint against Russian Project Lakhta Member

The 111-page criminal complaint and affidavit allege Artem Mikhaylovich Lifshits, 27, of St. Petersburg, Russia, operates as a manager in “Project Lakhta.”   The latter is based in Russia and engages in political and electoral interference activities.  Since  at least May 2014, Project Lakhta has tried to hide its conduct by acting through a number of entities, including IRA.  Lifshits served as manager since approximately 2017 for the Translator Department, which is allegedly responsible for much of the Project’s ongoing influence operations.

Lifshits allegedly conspired with Project Lakhta members to secure means of identification of real U.S. persons.  The conspirators then used these identities to open fraudulent accounts at banking and cryptocurrency exchanges in the victims’ names.  Lifshits and the conspirators allegedly employed these fraudulently opened accounts to promote Project Lakhta’s influence operations and personal enrichment.

Treasury Sanctions

Treasury designated Andrii Derkach (Derkach) pursuant to Executive Order (E.O.) 13848 for his efforts to influence the 2020 U.S. presidential election.  According to Treasury, “Derkach has directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in an attempt to undermine the upcoming 2020 U.S. presidential election.”

From at least late 2019 through mid-2020, Derkach conducted a covert influence campaign focused  on creating false and unsubstantiated narratives concerning U.S. officials in the upcoming 2020 Presidential Election, spurring corruption investigations in both Ukraine and the U.S. designed to influence the U.S. Presidential election day. The Western media covered Derkach’s unsubstantiated narratives through coverage of press conferences and other news events, including interviews and statements.

Between May and July 2020, Derkach disseminated  edited audio tapes and other unsupported information with the intent to discredit U.S. officials.  He made unsubstantiated allegations against U.S. and international political figures. Derkach almost certainly targeted the U.S. voters, prominent U.S. persons, and members of the U.S. government, based on his reliance on U.S. platforms, English-language documents and videos, and pro-Russian lobbyists in the United States used to propagate his claims.

The Treasury sanction does not mention that Rudolph W. Giulani, President Trump’s personal attorney, met twice with Derkach since late last year and publicized Derkach’s claims on his podcast and elsewhere.  Since late last year, Derkach has operated a campaign against Democratic Presidential candidate Joe Biden and former Ukrainian president Petro Poroshenko from Kyiv.  The campaign has included an English-language website and YouTube channel, and a conspiratorial flowchart showing Biden and financier George Soros at the center. fn1

Treasury also designated three IRA actors pursuant to E.O. 13694, as amended by E.O. 13757, and E.O. 13848 for having acted or purported to act for or on behalf of, directly or indirectly, the IRA, an entity designated pursuant to E.O. 13694, as amended, and E.O. 13848. Russian nationals Artem Lifshits, Anton Andreyev, and Darya Aslanova, as employees of the IRA, supported the IRA’s cryptocurrency accounts.

Department of Homeland Security Whistleblower Complaint about Intelligence re Russian Election Interference

On September 9, 2020, Rep. Adam Schiff (D-CA), the Chairman of the House Permanent Select Committee on Intelligence, announced that, as part of its ongoing investigation into the Department of Homeland Security (DHS) and the Office of Intelligence and Analysis (I&A), the Committee received a whistleblower reprisal complaint alleging serious wrongdoing by officials at the Department and reprisal against former I&A Acting Under Secretary Brian Murphy for making protected disclosures. Mr. Murphy filed the whistleblower reprisal complaint on September 8, 2020 with the DHS Office of Inspector General.

Rep. Schiff released a statement that “Murphy’s allegations are serious — from senior officials suppressing intelligence reports on Russia’s election interference and making false statements to Congress about terrorism threats at our southern border, to modifying intelligence assessments to match the President’s rhetoric on Antifa and minimizing the threat posed by white supremacists. We have requested Mr. Murphy’s testimony before the Committee, pursuant to subpoena if necessary, alongside other already scheduled interviews with other DHS officials.”

Analysis

The criminal complaint, sanctions, and whistleblower complaint show that Russian interference in U.S. elections is continuing.  The extent of the interference and the cooperation, if any, by members of the Republic National Committee and the Trump Administration are controverted.  Depending on the results of the U.S. election, the U.S. sanctions against Russia are likely to deepen.  The alleged interference is likely to  generate additional sanctions by Europe and other countries.  For European sanctions the case of Aleksei A. Navalny, the Russian opposition leader who is recovering from being poisoned, is important.  He has spoken to a German prosecutor about the attempt on his life and says he plans to return to Russia as soon as he has recovered.  The alleged poisoning of Navalny also potentially trigger sanctions under the the U.S. Global Magnitsky Act, which a number of countries have emulated. The current issue of the IELR will have more discussion on these matters in this blogpost.

FN 1     Paul Sonne, Josh Dawsey and Karoun Demirjian, Treasury penalizes Ukrainian it calls a ‘Russian agent’, Wash. Post, Sept. 11, 2020, at A10, col. 1.

 

U.S. Treasury Implements Sanctions against ICC Chief Prosecutor and Head of Cooperation Unit

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On September 2, 2020, the United States Department of the Treasury added to the list of Specially Designated Nationals Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC), and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division.

The Treasury notice implements the executive order issued on June 11, 2020, by United States President Donald J. Trump imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order states the U.S. will impose tangible and significant consequences on those responsible for the ICC’s misconduct. They may include the suspension of entry into the U.S. of ICC officials, employees, and agents, as well as their immediate family members.

Even before the issuance of the Executive Order, the U.S. government had already revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda. The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The initial implementation selects the chief prosecutor and the individual in charge of enforcement cooperation.  A major weakness of the ICC is its lack of its own police force, so that it cannot actually arrest an individual.

It remains to be determined how broadly the executive branch will apply the sanctions.  This will be a major focus of persons interested in the court and in accountability for war crimes and crimes against humanity.  The imposition of sanctions is a setback to the effort to hold perpetrators of crimes meriting universal jurisdiction accountable.  The sanctions constitute an attack on international and national judicial independence.  It sets a bad example for the rest of the world at the very time when democracy is in jeopardy and the world community is struggling to bring accountability for war crimes and crimes against humanity in longstanding conflicts, such as those in Afghanistan, Syria, Libya, and Yemen.

The sanctions undermine longstanding U.S. foreign policy to emphasize the rule of law and bring peace and stability by holding alleged perpetrators of crimes of universal jurisdiction accountable as well as prioritize international human rights.  Especially when the sanctions are considered in the context of the U.S. still holding persons for twenty years in Guantanamo without trial, the sanctions will also hamper the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

During its annual meeting last month, the American Bar Association adopted Resolution 114, urging all national governments to “observe, respect, and protect the independence of the International Criminal Court.”  It also “condemns threats by governments to the International Criminal Court and its officers and personnel in the performance of their duties.”  Prior ABA policies and statements on the ICC  and a timeline of the US-ICC relationship show that the ABA has from the start supported the operation of the ICC and U.S. proactive participation in it.   The ABA ICC project’s board members, including former U.S. War Crime Ambassadors and a former Nuremberg prosecutor, have also written opinion pieces the Project’s board members wrote about the sanctions.

The implementation of the Executive Order against the ICC will further alienate U.S. relations with its closest allies, who are making contingency plans for the potential that Donald J. Trump may be re-elected.  On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on United States sanctions.  He referred specifically to the U.S. unilateral sanctions against the ICC.  Borrell said sanctions against those involved in the work of the ICC, its staff, and their families, as well as persons associated with the ICC, are unacceptable and unprecedented in scope and content.

 

EU Expresses Deep Concern Over Growing U.S. Unilateral Sanctions against EU Interests

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On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on US sanctions.

Borrell Statement

He said  he was “deeply concerned at the growing use of sanctions, or the threat of sanctions, by the United States against European companies and interests.”

He said the EU has observed this developing trend in the cases of Iran, Cuba, the International Criminal Court and most recently the Nordstream 2 and Turkstream projects.

According to Mr. Borrell, “(a)s a matter of principle the European Union opposes the use of sanctions by third countries on European companies carrying out legitimate business. Moreover, it considers the extraterritorial application of sanctions to be contrary to international law.”

Borrell continued that Europe and not third countries should determine European policies.

Appropriately Borrell continued that, where countries share common foreign and security policy goals,  great value is realized in the coordination of targeted sanctions with partners.  The EU has experienced many positive examples of this.  The EU will continue to coordinate where it  can.

Perhaps, most importantly, Borrell underscored that “where policy differences exist, the European Union is always open to dialogue. But this cannot take place against the threat of sanctions.”

Analysis

The Borrell statement occurs against the background of friction over EU efforts to trade with Iran.  On August 28, 2019, the EU  announced that its INSTEX mechanism to facilitate trade with Iran was operational.  The EU informed participants that INSTEX was available to all EU member states.  The first transactions were being processed, said an EU statement.  The establishment of INSTEX  shows the EU is serious about alleviating the pain of sanctions on Iran in order to persuade Iran to remain in the 2015 Joint Comprehensive Plan of Action (JCPOA).  However, until now, it has facilitated very few transactions.

The Borrell announcement also comes on the heels of an 18-page proposed economic and security partnership between China and Iran that would clearly violate U.S. unilateral sanctions against Iran.

The current issue of the International Enforcement Law Reporter will discuss these and other implications of the statement in more detail.

U.S. President Trump Issues Executive Order Imposing Sanctions against International Criminal Court

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On June 11, 2020, United States President Donald J. Trump issued an executive order imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order

The Executive Order cited as authority for the action the Constitution and the laws of the United States, including the International Emergency Economic Powers Act (IEEPA),[1] the National Emergencies Act (NEA),[2] section 212(f) of the Immigration and Nationality Act of 1952,[3]  and section 301 of title 3, United States Code.

President Trump in the E.O. finds that the efforts of the ICC threaten U.S. national security and foreign policy:

“The ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest.  These actions on the part of the ICC, in turn, threaten to infringe upon the sovereignty of the United States and imped the critical national security and foreign policy work of the United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States.”

The Executive Order also refers to the enactment in 2002 of the American Service-Members’ Protection Act,[4] which “rejected the ICC’s overbroad, non-consensual assertions of jurisdiction.”[5]

According to the Executive Order, the U.S. will impose tangible and significant consequents on those responsible for the ICC’s misconduct.  They may include the suspension of entry into the U.S> of ICC officials, employees, and agents, as well as their immediate family members.

Justifications of the Executive Order and Imposition of Sanctions

National Security Advisor Robert O’Brien made a statement before press alongside Secretary of State Mike Pompeo, Secretary of Defense Mark Esper, and Attorney General Bill Barr. O’Brien said “The ICC’s effort to target American servicemen and women and other public servants are unfounded, illegitimate, and make a mockery of justice”.[6]

Barr stated “(w)e are concerned that foreign powers, like Russia, are also manipulating the ICC in pursuit of their own agenda.”  The Justice Department received “substantial, credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor.”[7]

The ICC investigation that triggered the Executive order will focus on possible crimes committed by the Taliban and other groups between 2003 and 2014, including alleged mass killings of civilians, as well as the alleged torture of prisoners by Afghan authorities and, to a lesser extent, by U.S. forces and the CIA.[8]

The ICC only investigates when national governments have not already investigated atrocities and crimes against humanity.

Human rights groups criticized the order as overly broad and vague and could subject human rights researchers at risk in countries allied with the U.S., such as the Philippines.[9]

Analysis

Although the Executive Order states that the ICC investigation into Afghanistan atrocities threatens to subject U.S. government and allied officials to potential arrest, U.S. allied officials are members of and support the ICC.

While the press conference talked of a “politically motivated court,” President Trump has intervened in several cases involving war-crimes accusations even though military justice experts and senior defense officials have opposed his intervention.[10]

The Trump Administration’s charge of political interference and corruption in the ICC will ring hollow. Three emoluments suits have been brought against the President.  The President has dismissed five inspector generals, including ones investigating improprieties at the defense and state departments.[11] Mr. Barr has been embroiled in a series of political interference allegations, including his whitewash of the Robert Mueller report,  his overriding the sentencing memorandum of DOJ attorneys for former Trump campaign adviser Roger Stone,[12] his effort to dismiss the plea of former Trump national security advisor Michael Flynn,[13]  the impeachment of Trump for his effort to have the Ukrainian head of state investigate the presumptive Democratic presidential candidate Joe Biden and his son, and his criticism and firing of his first Attorney General Jeff Sessions for recusing himself in the special counsel’s investigation.[14]

Already the U.S. has revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda.[15]  The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The imposition of sanctions is a setback to the effort to hold perpetrators of war crimes accountable and to the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

The current issue of the IELR will have a more comprehensive discussion of the sanctions.

 

[1]    50 U.S.C. § 1701 et seq.

[2]    50 U.S.C. § 1601 et seq.

[3]    8 U.S.C. §1182(f).

[4]    22 U.S.C. §7241 et seq.

[5]    For a discussion of the decision by the ICC Appeals Chamber authorizing the Afghanistan investigation, see Michael Plachta, ICC Appeals Chamber Authorizes the Prosecutor’s Request to Investigate War Crimes in Afghanistan, 36 Int’l Enforcement L. Rep. 104 (Mar. 2020).

[6]    Robbie Gramer and Jack Detsch, Trump Order Treats International Prosecutors Like War Criminals, Foreign Policy, June 11, 2020.

[7]    Id.

[8]    Karen DeYoung and Carol Morello, Trump authorizes sanctions against ‘corrupt’ International Criminal Court, Wash. Post, June 12, 2020.

[9]   Id.

[10]   Id.  See also Mikhaila Fogel, When Presidents Intervene on Behalf of War Criminals, Lawfareblog, May 27, 2019 https://www.lawfareblog.com/when-presidents-intervene-behalf-war-criminals (discussing President Trump’s preparation of pardons  for, among others, Special Operations Chief Edward Gallagher, a Navy SEAL accused of shooting unarmed civilians and stabbing an enemy prisoner to death; Maj. Mathew Golsteyn, who was accused of killing an unarmed Afghan man who had been connected to the Taliban; and a group of Marine Corps snipers charged in connection with urinating on the bodies of dead Taliban fighters).

 

[11]  Melissa Quinn, The internal watchdogs Trump has fired or replaced, May 19, 2020 https://www.cbsnews.com/news/trump-inspectors-general-internal-watchdogs-fired-list.

[12]    Andrew Prokop,   The fiasco at Bill Barr’s Justice Department, explained, Vox, Feb 13, 2020.

[13]     Roger Parloff ,The Shoddy History Behind a Key Precedent in the Flynn Case, Lawfareblog,  June 11, 2020 https://www.lawfareblog.com/shoddy-history-behind-key-precedent-flynn-case; Josh Gerstein and Kyle Cheney, Everything about this is irregular’: Ex-judge tapped to review Flynn case blasts Trump DOJ, Politico, June 10, 2020 https://www.politico.com/news/2020/06/10/gleeson-flynn-sullivan-barr-justice-department-311018.

[14]    Trump fires Attorney General Jeff Sessions, BBC, Nov. 18, 2018.

[15]    Naha Toosi and Natasha Bertrand, Trump authorizes sanctions against the International Criminal Court, Politico, June 11, 2020 https://www.politico.com/news/2020/06/11/white-house-international-criminal-court-sanctions-313070

 

Canadian Court Finds Huawei CFO Extraditable to the U.S. on Fraud Charges

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On May 28, 2020, in the case of United States v. Meng, 2020 BCSC 785, Associate Chief Justice Heather Holmes of the Supreme Court of British Columbia denied Wanzhou Meng’s request for an order discharging her from the extradition process on the basis that, as a matter of law, the “double criminality” requirement for extradition cannot be met.

Factual Background

The U.S. has requested her extradition for prosecution in the U.S.  District Court in the Eastern District of New York for conduct that the Minister of Justice for Canada says corresponds to fraud in violation of section 380(1) of the Criminal Code of Canada.

The allegations concern the banking relationship between Huawei, a China-based telecommunications company, and HSBC, an international bank.  Ms. Meng was and still is Huawei’s Chief Financial Officer, and the daughter of its founder, Ren Zhengfei.  She alleged made false statements to HSBC in 2013, significantly understating Huawei’s relationship with Skycom Tech co. Ltd., a company based in Iran.

In August 2013, HSBC coordinated a syndicated loan to Huawei in an amount equivalent to US $1.5 billion, and was one of the main lenders.  In April 2014, HSBC sent Huawei a signed letter describing negotiated provisions for a US $900 million credit facility.  HSBC was one of the banks that loaned Huawei $1.5 billion in July 2015.

During this time U.S. Iran sanctions regulations required banks to obtain authorization from the U.S. Department of the Treasury’s Office of Foreign Assets control before providing financial or credit services through the U.S. to entities in Iran.

Before the incidents with Ms. Meng, HSBC had violated the sanctions and in December 2012 entered into a deferred prosecution agreement (DPA) with the U.S.  Department of Justice, in which it agreed not to commit further sanctions violations, to undertake various remedial measures, and to undertake various remedial measures to pay forfeitures and penalties amount to well over a billion dollars.

In December 2012 and January 2013, Reuters published two articles associating Huawei with Skycom’s U.S.-related business dealings in Iran.  The articles reported various connections between Huawei and Skycom, including that Ms. Meng served on Skycom’s board from February 2008 to April 2009, and that in 2007 she was company secretary for a Huawei holding subsidiary that, in turn, owned 100% of Skycom’s stock.

When HSBC inquired of Huawei about the reports in the Reuters articles, Ms. Meng gave an in-person meeting with a senior HSBC executive and showed a PowerPoint presentation.  The U.S. indictment alleges that Meng made fraudulent statements to HSBC and that Huawei relied on the assurances provided by Ms. Meng at the August 2013 meeting in deciding to extend a proposed $900 million credit facility  and subsequently participated with other international banks in a $1.5 billion syndicated loan to Huawei.

Legal Issues

Justice Holmes disagreed with Ms. Meng that the conduct cannot amount to fraud because essentially the proposed prosecution is to enforce U.S. sanctions laws against Iran, measures that are not part of Canadian law and which Canada has expressly rejected.  Meng argues that it is an artificiality to characterize the case as one of fraud against a bank, because the U.S. can have no real interest in policing private dealings between a foreign bank and a private citizen.

Meng contends that for Canada to extradite for conduct that does not violate its own laws and standards would not meet the rule of law and principles of fundamental justice. This includes those that prevent punishment for conduct not clearly prohibited by law.

Justice Holmes disagreed with Ms. Meng that to refer to U.S. sanctions in order to understand the risk to HSBC is to allow the essence of the conduct to be defined by foreign law.  Canada’s laws determine whether the alleged conduct, in its essence, amounts to fraud.

According to Justice Holmes, Ms. Meng’s approach to the double criminality analysis would serious impair Canada’s ability to meet its international obligations in the extradition context for fraud and other economic crimes.  The offense of fraud has a large potential scope.  It may include a very wide scope of conduct, a large expanse of time, and acts, people, and consequences in multiple places of jurisdictions.  Justice Holmes explains that Ms. Meng’s approach to the double criminality principle would give fraud an artificially narrow scope in the extradition context.  It would entirely eliminate, in many cases, consideration of the reason for the alleged false statements and how such statements caused the victim(s) loss or risk of loss.

With respect to Ms. Meng’s concern that extraditing her would indirectly help to enforce laws based on policy offensive to Canadian values.  The opinion explains that economic sanctions laws as were in place in the U.S. at the time of the alleged offense are not part of Canadian law, but they are also not fundamentally contrary to Canadian values.  The opinion also notes that in the final phase of the extradition process the Minister of Justice must refuse a surrender order for extradition if such an order would be “unjust or oppressive” under  all the relevant circumstances.  The Minister’s decision will necessarily take account of whether prosecution according to the foreign laws could lead to an unjust or oppressive result according to Canadian values.

Justice Holmes concluded that, as a matter of law, the double criminality requirement for extradition is capable of being met in this case.  The effects of the U.S. sanctions may properly play a role in the double criminality analysis as part of the background or context against which the alleged conduct is examined.

Future Proceedings and Implications

It is not known if Meng’s lawyers plan to immediate appeal the extraditability decision or wait until a later stage of the extradition process.[1]

Meng and her lawyers are to appear in B.C. Supreme Court on June 3 for a case management conference, to schedule the next set of hearings.

Meng’s legal team plans to argue that her Charter rights were violated when she was arrested at YVR back in December 2018.[2]

After the ruling the Chinese Embassy in Ottawa characterized “the whole case” a “grave political incident.”[3]

Huawei expressed disappointment.  It said it expects that “Canada’s judicial system will ultimately prove Ms. Meng’s innocence.”[4]

After the ruling Meng will have to continue living under house arrest in Vancouver, where she owns two homes. While under a curfew and required to wear a GPS tracking device, she can still travel freely around the city.

The decision undoubtedly will further strain relations between Canada and China, which have deteriorated significantly since Meng’s arrest in December 2018.  Meng’s verdict occurs during increasing frustration in Canada over the continued detention of Michael Kovrig and Michael Spavor, two Canadians who were seized in China shortly after Meng’s arrest.[5]

A Chinese embassy spokesperson in Canada told the Canadian Broadcasting Company news: “The purpose of the United States is to bring down Huawei and other Chinese high-tech companies, and Canada has been acting in the process as an accomplice of the United States. The whole case is entirely a grave political incident.”[6]

The current issue of the IELR will discuss the decision and implications in more detail.

[1]    David Molko and Kendra Mangione, B.C. judge rules against Huawei’s Meng Wanzhou, extradition process continues, May 27, 2020 https://bc.ctvnews.ca/b-c-judge-rules-against-huawei-s-meng-wanzhou-extradition-process-continues-1.4956755.

[2]    Id.

[3]   Amanda Coletta, Canadian court says extradition case can proceed, Wash. Post, May 28, 2020, at A18, col. 3.

[4]   Id.

[5]    Leyland Cecco, Canada court ruling allows US extradition case of Huawei executive to proceed, The Guardian, May 27, 2020.

[6]    Id.

For the First Time, Trump Designates White Supremacist Group as “Terrorists”

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On Monday, April 6, the Trump administration designated the Russian Imperial Movement (RIM), an ultranationalist white supremacist group, as a terrorist organization on the Office of Foreign Assets Control’s (OFAC) “Specially Designated Global Terrorist” list and imposed sanctions upon its members.

The step was announced by Secretary of State Mike Pompeo and his counterterrorism coordinator Nathan Sales. The designation makes it illegal for Americans to engage in any transactions with the group and freezes any assets it may have in U.S. jurisdictions.

The members who were sanctioned are all leaders within the group: Stanislav Anatolyevich Vorobyev, Denis Valliullovich Gariev, and Nikolay Nikolayevich Trushchalov. The leaders were individually added to the OFAC list and face the same sanctions as the group, in addition to a travel ban.

This action marks the first time a white supremacist group has been named a “Specially Designated Global Terrorist.” Sales emphasized the significance of this action in a statement: “This is the first time the United States has ever designated white supremacist terrorists, illustrating how seriously this administration takes the threat. We are taking actions no previous administration has taken to counter this threat.”

Indeed, this move is significant as it will make it easier for national security prosecutors at the Department of Justice (DOJ) to bring terrorism-related charges against anyone engaging in financial transactions to people associated with RIM.

It also allows the U.S. to use a powerful counterterrorism tool – international intelligence sharing – to effectively go after the group and its supporters. Now, to gain information, the U.S can, “reach out to foreign partners and trace financial flows, find incriminating statements, and otherwise disrupt plots and move toward prosecution. It can also prevent white supremacist groups from working in coordination across national borders, making them far less effective as a result.”

Furthermore, recognizing a white supremacist group as a terrorist group shows the white supremacist community that it can be targeted by law enforcement if it does not reject violence.

While RIM is relatively small and does not have large global influence, it is a good candidate for designation. The group not only conducts its own violent activities, but it has also attempted to build an international movement as part of a broader Russian effort to breed white supremacists. RIM is alleged to provide paramilitary training to neo-Nazis and white supremacists and has recruited volunteers to fight on the Russian side of the Ukraine war. Notably, in 2016, the group allegedly trained two Swedish nationals who later conducted a series of terrorist attacks in a café and refugee campsite in Gothenburg.

Interestingly, the designation comes “amid doubts the [Trump] administration believes extremist organizations of that type merit such sanctions.” In this quote, The New York Times is referring to the “organizations of that type” as white supremacist groups. Previously, Trump has solely focused on targeting Islamist terrorism, sending a potential message that Islamic terrorist organizations are more dangerous than white supremacists. In fact, the administration has been criticized for not even appearing to take the threat of white supremacism seriously. A specific instance that drew this criticism was when Trump did not respond strongly to violence caused by neo-Nazi groups in Charlottesville, Virginia in August 2017 that left one person dead.

Now, the designation potentially underlines the idea that white nationalist groups can be just as dangerous as groups like the Islamic State (ISIS) and that Muslims themselves are at risk from white supremacist violence.

Hopefully listing non-Islamist groups indicates the U.S. will start taking all forms of violence against citizens seriously and that any threat to the U.S. necessitates a reaction, regardless of the ideological motivation.

U.S. Attorney General Issues Notice that UK-US CLOUD Act Takes Effect July 8, 2020

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On March 3, 2020, U.S. Attorney General William Barr, in accordance with the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”), relating to an executive agreement governing access by a foreign government to electronic data, gave notice that he has determined, and has submitted a written certification of such determination to Congress, that the U.S.-U.K. CLOUD Agreement satisfies the requirements of the CLOUD Act.

On November 27, 2019, the Attorney General certified that he had determined that the U.S.-U.K. CLOUD Agreement satisfies the requirements of the CLOUD Act. On January 10, 2020, the Attorney General completed the process of providing his certification to Congress. The U.S.-U.K. CLOUD Agreement will enter into force not earlier than July 8, 2020, unless Congress enacts a joint resolution of disapproval, in accordance with the CLOUD Act.

On March 23, 2018, the CLOUD Act was signed into law. Public Law 115-141, Div. V, 132 Stat. 1213-25. The CLOUD Act removes certain restrictions under U.S. law on companies disclosing electronic data, in response to qualifying, lawful orders in investigations of serious crime, directly to a qualifying foreign government with which the United States has entered into an executive agreement governing access by the foreign government to covered data. Id. at 132 Stat. at 1213-17.

Before an agreement can go into effect, the Attorney General, with the concurrence of the Secretary of State, must determine that the considerations outlined in 18 U.S.C. 2523(b) have been met. The Attorney General must then submit a written certification of his determination to Congress, including an explanation of each consideration required by 18 U.S.C. 2523(b), not later than 7 days after the date on which the Attorney General certifies the executive agreement. 18 U.S.C. 2523(d) (1).

The executive agreement will enter into force not earlier than 180 days after the date the Attorney General notifies Congress, unless Congress enacts a joint resolution of disapproval, in accordance with the CLOUD Act. 18  U.S.C. 2523(d)(2). Under 18 U.S.C. 2523(g), the Attorney General’s determination or certification under 18 U.S.C. 2523(b) must be published in the Federal Register..

Determination and Certification Pursuant to Section 2523(b)

On October 3, 2019, the Home Secretary of the United Kingdom and  the Attorney General of the United States signed the U.S.-U.K. CLOUD  Agreement. A copy of the U.S.-U.K. CLOUD Agreement is available at:  https://www.justice.gov/dag/cloudact. On November 27, 2019, the Attorney General certified his determination that the U.S.-U.K. CLOUD  Agreement satisfies the requirements of 18 U.S.C. 2523(b). The Attorney  General’s determination was based on the considerations in paragraphs  (1), (2), (3), and (4) of 18 U.S.C. 2523(b), as explained in the “Explanation of Each Consideration in Determining that the Agreement Satisfies the Requirements of 18 U.S.C. 2523(b),available at: https://www.justice.gov/dag/cloudact. Secretary of State. Pompeo concurred with the Attorney General’s determination.

The Department of Justice (“Department”) transmitted the U.S.-U.K. CLOUD Agreement certification to the Committee on the Judiciary and the Committee on Foreign Relations of the Senate on December 4, 2019.  Due to a clerical error the Committee on the Judiciary and the Committee on Foreign Affairs of the House of Representatives did not receive notice until January 10, 2020.

Non-Reviewable Determination and Certification

In accordance with 18 U.S.C. 2523(c), the determination and certification by the Attorney General described in this notice are not subject to judicial or administrative review.

The Way Forward

The U.S. has also signed a CLOUD Act Agreement with Australia.  The U.S. and the Ministers of Justice of the European Union have held discussions over a CLOUD Act Agreement.  The U.S. hopes to sign many CLOUD Act Agreements.

Many privacy groups, such as Electronic Privacy Information Center, and human rights groups have opposed the CLOUD Act agreements. They oppose it, among other reasons, because it gives foreign authorities access to information without any judicial authorization, no notice is given to the data subject and no remedies, and unequal minimization and targeting protections exist for U.K. and U.S. citizens

 

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