IELR Blog

Demand Letter from Greece to Halt Sotheby’s Auction of Antiquity

October 10, 2019 by Bruce Zagaris Leave a Comment

The Greek Ministry of Culture and Sports sent a demand letter to Sotheby’s shortly before they were going to auction off a Greek antiquity. Greece claimed in the demand letter that the item (a bronze horse) was Greece’s pursuant to Greek patrimony laws and that there was no record of the item having been lawfully exported. Greece sought repatriation of the item.

Sotheby’s and the executors of the trust that had consigned the item to Sotheby’s then sued in federal court seeking declaratory judgment that the Greek antiquity was properly owned by them and could be consigned and sold by Sotheby’s at auction. The Greek Ministry moved to dismiss for lack of subject matter jurisdiction under the FSIA. The district court found that Greece’s demand letter constituted commercial activity under the FSIA because private parties routinely send demand letters seeking return of their property.

Greece made various arguments on appeal regarding its sovereign immunity under the FSIA.

The amicus that my colleague Laina Lopez and my firm filed – on behalf of Italy, Mexico, Cyprus, the Antiquities Coalition, and the Hellenic College Holy Cross Greek Orthodox School of Theology — argued one point not made in Greece’s opening brief. Amici argued that the demand letter does not constitute commercial activity because a demand letter seeking return of cultural heritage property pursuant to a nation’s patrimony laws is something only a sovereign can send; enforcement of patrimony laws is an exercise of the state’s police power. Amici also raised concerns about the practical effects of the case if the court were to uphold the district court’s decision.

The case is Barnet Recovable Trust, and Sotheby’s Inc., Plaintiff-Appellees v. Ministry of Culture and Sports of the Hellenic Republic, Defendant-Appellant, U.S. Court of Appeals for the 2d Circuit, Civ. 19-2171-cv. If you are interested in a copy, please contact Lex Haris (aharis@bcr-dc.com).

U.S. Citizen Arrested for Spying on Behalf of China’s Ministry of State Security

October 10, 2019 by Miranda Bannister Leave a Comment

On Friday September 27, 2019, U.S. citizen Xuehua “Edward” Peng was arrested in Hayward, California for providing classified U.S. security information to the Chinese government. Peng allegedly conferred at least four secure digital cards (SD) to China’s Ministry of State Security (MSS) in Beijing.

The Department of Justice filed the complaint against Peng on September 24, following a lengthy FBI investigation of Peng’s activities. A statement by the Department of Justice (DOJ) claimed Peng made at least six “dead drops” between June 2015 and June 2018.

While Peng received an empty package in the first dead drop, he retrieved a package with an SD card from the front desk of a hotel in Newark, California in the second. In the following four dead drops, Peng retrieved SD cards from hotel rooms he had booked in advance. In each of these drops, he left envelopes of cash in the hotel room, in exchange for an SD card left by his source. Two of the six dead drops took place in Newark, California, one in Oakland, California, and three in Columbus, Georgia. Four of the six dead drops resulted in Peng transporting the SD cards to the MSS in Beijing.

“The conduct charged in this case alleges a combination of age-old spy craft and modern technology,” said U.S. Attorney David L. Anderson for the Northern District of California.

The FBI employed a “double agent operation” in their investigation of Peng. An informant for the FBI exchanged an SD card for payment in at least one of the dead drops conducted by Peng.

Assistant Director John Brown of the FBI’s Counterintelligence Division said, “This case should serve as a warning to the government of China as well as any other foreign adversary looking to replicate this activity. The FBI, and our intelligence and law enforcement partners, will not waiver. We will bring all of our resources to bear to defeat hostile foreign intelligence services and protect our nation’s security.”

What’s Next for Peng

Peng, 56, is a resident of Hayward, California. Peng entered the U.S. on a temporary business visitor visa in 2001 and become a lawful permanent resident in 2006 upon marrying his then-wife. Peng was fully naturalized in 2012.

During Peng’s first court appearance on September 27, U.S. Magistrate Judge Joseph C. Spero declined to release Peng on bail, stating Peng was a flight risk. On October 2, Peng appeared before U.S. Magistrate Judge Jacqueline Corley for a detention hearing and identification of counsel. Judge Corley ordered Peng to hire a personal attorney, saying Peng’s significant financial assets disqualified him from being assigned a public defender.

The Special Prosecutions Section of the United States Attorney’s Office for the Northern District of California, as well as the Counterintelligence and Export Control Section of the DOJ, National Security Division, are prosecutors for the case.

Peng is accused of violating 18 U.S. Code § 951. This code states, “Whoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.” The maximum punishment Peng faces is 10 years imprisonment with a $250,000 fine.

The Larger Threat of Espionage

There have been at least six incidences in the past three years in which the Department of Justice has prosecuted a U.S. citizen for Chinese espionage. Three former U.S. intelligence officers, and one other, have been convicted on these charges.

Assistant Attorney General of National Security John C. Demers said of Peng’s arrest, “Coming on top of our many recent Chinese espionage cases—involving both national defense and intellectual property information—this case illustrates the seriousness of Chinese espionage efforts and the determination of the United States to thwart them.”

The charges against Peng confirm the concerns of many U.S. officials that China poses a growing threat to the West. U.S. Attorney Anderson said, “The charges announced today provide a rare glimpse into the secret efforts of the People’s Republic of China to obtain classified national security information from the United States and the battle being waged by our intelligence and law-enforcement communities to protect our people, our ideas, and our national defense.”

U.S. and Australia Start Negotiations over CLOUD Act Agreement and Host Roundtable on Trusted Technology Ecosystems

October 8, 2019 by Bruce Zagaris Leave a Comment

On October 7, 2019, the United States and Australia announced they have entered into formal negotiations for a bilateral agreement under the U.S. Clarifying Lawful Overseas Use of Data Act (the CLOUD Act). The two governments also hosted a roundtable on trusted technology ecosystems.

Negotiations of a CLOUD Act Agreement

United States Attorney General William Barr and Australian Minister for Home Affairs, Peter Dutton, announced the negotiations during a meeting.

Supported by Australian legislation yet to be introduced, a bilateral CLOUD Act agreement would enable Australian law enforcement to serve domestic orders for communications data needed to combat serious crime directly on U.S.-based companies, and vice versa.

The announcement of U.S.-Australian negotiations of a CLOUD Act Agreement provides additional momentum to the U.S. government efforts of having an expedited process for directly obtaining access to electronic evidence from the platform providers.

Roundtable on Trusted Technology Ecosystems

Also on October 7, Attorney General William P. Barr and Australian Minister for Home Affairs Peter Dutton hosted a government-industry roundtable discussion titled, “Shaping a Trusted Technology Ecosystem,” with more than a dozen representatives from the tech-industry landscape.

A Department of Justice press release characterized the dialogue as a critical step in jointly addressing complex supply chain challenges faced by both nations. The collaborative discussion presented an opportunity for industry, Australia and the United States to work together on solutions to ensure an open marketplace, achieve a diverse range of secure technology options, and enhance global technology markets characterized by trust, transparency, and fair competition. One issue is whether to try to prevent Huawei from developing for the Western countries and the world in general the 5G network. The U.S. does not trust Huawei from a national security perspective because it believes that the Chinese government will control Huawei’s practices and enable the Chinese government to obtain surveillance periodically. Until now, Australia has cooperated with the U.S. on the initiative to block Huawei even though Australia is increasingly subject to Chinese economic and foreign policy pressure due to China’s growing role in Australia and the region. The issue of trusted technology ecosystems also concerns the Internet and data privacy.

U.S. and U.K. Sign Cross-Border Data Access Agreement for Cross-Border Enforcement and Warn Facebook on Proposed Encryption

October 4, 2019 by Bruce Zagaris Leave a Comment

On October 3, 2019, the United States and United Kingdom concluded the first ever CLOUD Act Agreement. It will permit U.S. and British law enforcement agencies, with appropriate authorization, to demand electronic data concerning serious crime, including terrorism, child sexual abuse, and cybercrime, directly from tech companies based in the other country, without legal barriers. Simultaneously, both governments and Australia’s Minister for Home Affairs published an open letter to Facebook, asking it to stop plans to implement end-to-end encryption across its messaging services

The CLOUD Act Agreement

The agreement will broadly remove restrictions for a wide category of investigations, not targeting residents of the other country, and assure providers that disclosures through the Agreement are compatible with data protection laws. Each signatory commits to obtain permission from the other before using data gained through the agreement in prosecutions concerning a Party’s essential interest – specifically, death penalty prosecutions by the U.S. and U.K. cases implicating freedom of speech.

The agreement will accelerate investigations by removing legal barriers to timely and effective collection of electronic evidence. The Agreement allows law enforcement, when armed with appropriate court authorization, to directly compel tech companies based in the other country to give access to their electronic data, rather than going through governments, which can take many months and even years.

The agreement will accelerate dozens of complete investigations into suspected terrorists and pedophiles.

The U.S. will have reciprocal access, under a U.S. court order, to data from U.K. communication service providers. All requests for access to data will be subject to independent judicial authorization or oversight.

In March 2018, Congress passed the CLOUD Act, authorizing the U.S. to conclude bilateral executive agreements with rights-respecting partners that remove each party’s legal barriers to the other party’s access to electronic data for certain criminal investigations. The enactment in the U.K. of the Crime (Overseas Production Orders) Act 2019, which received Royal Assent in February of this year, authorized the U.K. to conclude the agreement

U.K. and U.S. Ask Facebook to Stop Plans to Encrypt Messaging Services

The U.K. Home Secretary Priti Patel, U.S. Attorney General William P. Barr, Acting U.S. Homeland Security Secretary Kevin McAleenan, and Australia’s Minister for Home Affairs Peter Dutton sent an open letter to Facebook, expressing serious concerns with Facebook’s plans to implement end-to-end encryption across its messaging services.

The letter asks Facebook to stop the proposals, unless the company can give assurances that no reduction will occur in Facebook’s ability to keep its users safe and enable law enforcement access to content in exceptional circumstances in order to protect the public.

Analysis

The U.K.-U.S. CLOUD Act Agreement opens the door for the U.S. and the European Union to conclude a CLOUD Act Agreement. The two parties are currently negotiating such an agreement.

The current issue of the IELR will have more information on the U.S.-UK Agreement and the open letter to Facebook.

INTERPOL Announces Large-Scale Operation to Arrest nearly 250 Fugitives across Asia

October 2, 2019 by Alexandra Haris Leave a Comment

On September 23, INTERPOL announced the recent success of its coordinated operation, Operation Tighten the Net, arresting 241 fugitives across Asia between June and August 2019. These fugitives were wanted for serious crimes including human trafficking, terrorism, and murder, and some of the fugitives had been on the run for decades.

The operation involved the 10 countries of the Association of Southeast Asian Nations (ASEAN) and China, Japan, and Korea (ASEAN+3). Operation Tighten the Net targeted fugitives that these countries wanted for years, but only with a coordinated effort were they able to find success. The countries took a multilateral approach to share information about the fugitives’ cases, which serves as an example of the power and success that can arise with international cooperation.

In order to achieve the goals of the operation, the countries identified high-profile fugitives and shared intelligence with participating members. Equipped with new and crucial information, these countries could then target the fugitives to bring them to justice. Of the individuals arrested, 80 were subjects of INTERPOL Red Notices for crimes ranging from fraud, drug trafficking, money laundering, and crimes against children.

One particular case that stands out involves a Korean national who was wanted on fraud charges and had been on the run for 25 years. Through this operation, the national was finally discovered living in Thailand, their home for the last 20 years.

The results encompassed not only hundreds of arrests, but they also included the issuance of 248 Red Notices and 20 Blue Notices. A Blue Notice differs from a Red Notice in that it is used by member countries to collect additional information about an individual’s identity, location or activities in relation to a crime.

INTERPOL’s goal is to continue this cooperative crackdown and arrest more fugitives suspected of these serious crimes. INTERPOL’s Head of the Liaison Office in Thailand, Kitaek Kang, reaffirmed the organization’s intent to continue working with all ASEAN+3 partners to build on the momentum of the operation.

INTERPOL credits some of the operation’s success to a training it held in May for participating member states. The training workshop focused on INTERPOL’s fugitive investigation capabilities and criminal databases, as well as the organization’s support to mutual legal assistance matters. This educated participants on the organization’s resources and illustrated how they could then use these resources to capture the alleged criminals.

INTERPOL also claimed the operation’s success derived from the efforts of the participating National Central Bureaus (NCBs) as well as partner law enforcement organizations.

This operation is distinctive as it marks the first regional fugitive investigative action coordinated by the INTERPOL Liaison Office in Bangkok, Thailand, with support from the INTERPOL NCB in Korea.

As a result, the Commissioner General of the Korean National Police Agency, Min Gab Ryong, commented on the operation with the confirmation of Korea’s commitment to collaborate with INTERPOL against crime while securing the rule of law in the region by “synchronizing efforts with regional partners as a member of ASEAN+3.”

This positive reception was encouraging for INTERPOL since, in the past, the organization has experienced scrutiny over its true effectiveness due to its absence of police power and ability to make arrests. However, this action helps to demonstrate the impact that the organization can have on global policing. In this case, the organization facilitated international cooperation and policing while providing resources in order to complete these 241 arrests. It will be interesting to see if INTERPOL attempts to make similar efforts in other global regions.

The U.S. Responds to Iranian Attack on Saudi Oil Facilities with Heightened Sanctions

September 30, 2019 by Miranda Bannister Leave a Comment

The United States responded to Iran’s recent attacks on Saudi oil facilities with sanctions against the Central Bank of Iran (CBI), the National Development Fund of Iran (NDF), and the private Iranian corporation Etemad Tejarate Pars Co. The Trump administration called these the “strongest sanctions ever put on a country” and Treasury Secretary Stephen Mnuchin claimed, “We’ve now cut off all source of funds to Iran.”

The Road to the September Sanctions

The latest sanctions represent the culmination of a long economic campaign against Iran, which began when the U.S. withdrew from the Iran nuclear deal in May 2018. The campaign, described by President Trump as “maximum pressure,” started with the reinstatement of sanctions that had been lifted under the Obama administration. In the same week that President Trump withdrew from the nuclear deal, his administration designated the head of the CBI, Valiollah Seif, as a global terrorist in an unprecedented step.

The most recent U.S. sanctions on Iran have heightened pressure on other states to isolate Iran. Sigal Mandelker, Under Secretary for Terrorism and Financial Intelligence, stated, “We are putting governments on notice that they are risking the integrity of their financial systems by continuing to work with the Iranian regime’s arm of terror finance, its Central Bank.”

France, Germany, and the UK have led efforts to salvage the nuclear deal with Iran, despite the U.S.’s withdrawal in May 2018. However, these states have changed their rhetoric since Iran’s attack on the Saudi oil facilities. The three countries released a joint announcement on September 26, 2019 that any further action in violation of the nuclear deal on the part of Iran would trigger the deal’s “dispute resolution mechanism.” Under this mechanism, the EU, China, and Russia would have the option to reimpose economic sanctions on Iran that were formerly lifted. If taken, this move might spell an end to the nuclear deal.

The Targets of the Latest Sanctions

In recent years, the CBI and NDF have coordinated to provide funds to the Islamic Revolutionary Guards Corps (IRGC)—a terrorist organization—as well as its Qods Force (IRGC-QF) and terrorist proxy, Hizballah. Meanwhile, Etemad Tejarate Pars Co. has funded Iran’s Ministry of Defense and Armed Forces Logistics (MODAFL) in close coordination with CBI.

The CBI is responsible for providing the large majority of the IRGC-QF’s foreign funding, and CBI officials have collaborated with the officially designated terrorist organization’s leadership. It was responsible for sending billions in both USD and euros to the IRGS-QD, as well as for coordinating the transfer of funds from other Iranian institutions, including the NDF, to officially designated terrorist organizations. The NDF’s contributions to the IRGC-QF via the CBI totaled half a billion dollars in 2017 and hundreds of millions of dollars in 2018.

The NDF depends upon the CBI to transfer its funds and works closely with the CBI and Iranian government officials. The board of trustees for the NDF include the governor of the CBI, Abdolnaser Hemmati, as well as Iranian President Hassan Rouhani. It is the Board of Trustees that collectively determines the Executive Board at the helm of the organization.

The intended purpose of the NDF under Article 84 of the Fifth Development Plan of the Islamic Republic of Iran, enacted in 2011, is to redistribute national oil and energy revenue towards economic development in the states. The Treasury Department claims it has erred from this goal in its support of terrorist organizations.

The CBI transferred funds to MODAFL for military purchases via the private Iranian organization Etemad Tejarate Pars Co. The latter was also designated for sanctions last week.

The Effect and Efficacy of the Sanctions

The sanctions require U.S. persons to block and report to the Treasury Department’s Office of Foreign Assets Control (OFAC) any property these organizations hold within the U.S. Furthermore, the Treasury Department warns,

In addition, persons that engage in certain transactions with the entities designated today may themselves be exposed to designation. Furthermore, any foreign financial institution that knowingly facilitates a significant financial transaction or provides significant financial services for entities designated in connection with Iran’s support for international terrorism or any Iranian person on OFAC’s List of Specially Designated Nationals and Blocked Persons could be subject to U.S. correspondent account or payable-through account sanctions.

This means the new sanctions will be effective only if two conditions are met. First, the designated groups must have significant holdings tied up in the U.S. for there to be an effect. Second, enforcement of these sanctions, meaning the flagging and sanctioning of individuals and even foreign entities cooperating with the designated groups, must be strict.

Since May, the European diplomats from France, Germany, and the UK have objected to the U.S.’s high pressure campaign on the basis that it leaves no bargaining chips aside from further sanctions and further escalates aggression between Iran and the West. Several leading Member States of the EU remain unconvinced that further heightened sanctions will effect meaningful negotiation or peace in the coming months.

Matthew D. Lee Updates Foreign Account Tax Compliance Act Answer Book for 2019

September 30, 2019 by Bruce Zagaris Leave a Comment

This new edition of the Foreign Tax Account Compliance Act Answer Book, which was first published in 2015 by Practising Law Institute, addresses recent changes to FATCA regulations relating to compliance and verification procedures for a variety of entities, including sponsoring entities of foreign financial institutions; non-financial foreign entities; trustees of trustee-documented trusts; registered deemed-compliant FFIs; and financial institutions that implement consolidated compliance programs.

The update examines revisions to the responsible officer compliance certification process and the FATCA registration and renewal process. It also describes recent offshore tax evasion criminal and civil enforcement efforts undertaken by the Internal Revenue Service and the Justice Department and how those efforts impact FATCA compliance by foreign financial institutions as well as U.S. taxpayers.

We are pleased to offer a 20 percent discount on the 2019 edition.

For more information, please contact Matt at mlee@foxrothschild.com or visit the PLI website.

8 Senators Introduce ILLICIT CASH Act to Improve Corporate Transparency and International Aspects of AML and CFT

September 27, 2019 by Bruce Zagaris Leave a Comment

On September 26, 2019, Senate Banking Committee members, U.S. Sens. Mark R. Warner (D-VA), Tom Cotton (R-AR), Doug Jones (D-AL), Mike Rounds (R-SD), Bob Menendez (D-NJ), and John Kennedy (R-LA), Catherine Cortez Masto (D-NV), and Jerry Moran (R-KS) today introduced bipartisan legislation to improve corporate transparency, strengthen national security, and help law enforcement combat illicit financial activity being carried out by terrorists, drug and human traffickers, and other criminals.

This post highlights the major provisions in the bill and then the international provisions.

The Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings (ILLICIT CASH) Act (S.2563) would, for the first time, require shell companies to disclose their true owners to the U.S. Department of Treasury. It would also update decades-old anti-money laundering (AML) and combating the financing of terrorism (CFT) policies. The bill provides Treasury and law enforcement new tools they need to fight criminal networks. This includes improving overall communication between law enforcement, financial institutions, and regulators, and facilitating the adoption of critical 21st century technologies.

Salient Provisions

Specifically, this legislation would:

Establish federal reporting requirements mandating that all beneficial ownership information be maintained in a comprehensive federal database, with strict privacy protections, accessible by federal and local law enforcement. (Sec. 401) and expand FinCEN geographic targeting order authority to commercial real estate (Sec. 402).

Help recruit and retain top talent at the Financial Crimes Enforcement Network (FinCEN) by putting employees on a pay scale comparable to that of federal financial regulators. (Sec. 102)

Create a hub of financial expert investigators at FinCEN to investigate potential AML-CFT activity in collaboration with federal government agencies. (Sec. 103).

Facilitate communications between the Treasury and financial institutions by establishing a Treasury financial institution liaison to seek and receive comments regarding AML-CFT rules, regulations, and examinations. (Sec. 104)

Require the Department of Justice (DOJ) to provide the Treasury Department with metrics on the usefulness of AML-CFT data from financial institutions for law enforcement purposes, as well as data on the past and current trends identified by DOJ in the AML-CFT landscape. (Sec. 201)

Require law enforcement to coordinate with financial regulators to provide periodic feedback to financial institutions on their suspicious activity reports. (Sec. 202)

Prioritize the protection of personally identifying information while establishing a clear path for financial institutions to share AML-CFT information for the purposes of identifying suspicious activity. (Sec. 303)

Ensure the inclusion of current and future payment systems in the AML-CFT regime by updating the definition of “coins and currency” to include digital currency. (Sec. 308)

International Provisions

Some of the provisions are designed to strengthen the international aspects of AML/CFT laws:

Prevent foreign banks from obstructing money laundering or terrorist financing investigations by requiring these banks to produce records in a manner that establishes their authenticity and reliability for evidentiary purposes, and compelling them to comply with subpoenas. This legislation would also authorize contempt sanctions for banks that fail to comply and increase penalties on repeat BSA violators. (Sec. 306);

Start a pilot program for information sharing between a financial institution and its foreign branches and affiliates that are located in OECD jurisdictions (Sec. 305).

Require the Treasury to work with foreign counterparts, including through the Financial Action Task Force, the International Monetary Fund, the World Bank, and the United Nations, to promote stronger AML frameworks and enforcement of AML laws.

Require the Treasury Department to carry out a study on the extent and effect of illicit finance risk relating to the Government of the People’s Republic of China and to develop a strategy to combat money laundering through Chinese firms.

Require the Treasury Department to conduct a study and submit to Congress a report that considers how authoritarian regimes in foreign countries and their proxies use the financial system of the U.S. and to conduct political influence operations, sustain kleptocratic regimes, export corruption, and otherwise undermine democratic governance in the U.S.

A section-by-section analysis of this bill is available here. A one-pager is available here.

A press release from Senator Warner’s office is available.

Federal Judge Overturns Rafiekian’s Conviction and DOJ Ends Investigations of Podesta and Van Weber, Causing a Blow to FARA Enforcement Efforts

September 25, 2019 by Bruce Zagaris Leave a Comment

On September 24, 2019, Judge Anthony J. Trenga of the U.S. District Court Eastern District of Virginia issued a 39-page opinion, overturning the conviction of Bijan Rafiekian, the former business partner of Michael Flynn, the first national security adviser of United States President Donald J. Trump. On September 23, the United States Department of Justice notified Tony Podesta, a Democratic power broker, and Vin Weber, a Republican former congressman, of the closing of its investigation for violations of the Foreign Agents Registration Act.

Rafiekian Opinion

On July 23, 2019, after a six-day jury trial, Rafiekian was convicted for conspiracy under 18 U.S.C. § 371 and acting in the United States as an unregistered agent of a foreign government, namely the government of Turkey, in violation of 18 U.S.C. § 951.

On September 12, 2019, the Court held a hearing on Rafiekian’s Motion for Judgment of Acquittal Under Federal Rule of Criminal Procedure 29 and Motion for a New Trial.

Judge Trenga granted the Motions for Acquittal and conditionally granted the Motion for New Trial.

With respect to the conviction for acting as an unregistered agent of Turkey, Judge Trenga found there is no substantial evidence that Rafiekian agreed to operate subject to the direction or control of the Turkish government. Additionally, Judge Trenga found no evidence of any actual or implied agreement between Rafiekian and the government of Turkey or any official of the government of Turkey.

A contract existed between the Flynn Intel Group (“FIG”) and Alptekin, a Turkish businessman who is the owner of Inovo, BV, a Dutch company located in the Netherlands. Alptekin was previously the Chairman of the Turkish-American Business Council.

On September 8, 2016, Flynn, on behalf of FIG, and Alptekin, on behalf of Invovo, entered into a written agreement, titled “the Independent Advisory Services Agreement.”

The work was to focus on Fethullah Gulen, including his ideology, influence, and relationships with American political leaders. The government of Turkey had tried unsuccessfully to persuade the U.S. government to extradite Gulen.

On September 19, 2016, Alptekin arranged a meeting in which Rafiekian, Flynn and others participated. Also participating was then-Turkish Minister of Energy and Natural Resources Berat Albayrak, President Erdogan’s son-in-law. The meeting mostly consisted of the Turkish officials expressing their negative opinions concerning Gulen.

On November 2, 2016, Rafiekian prepared an op-ed to be published under Flynn’s name. On November 6, 2017, Flynn returned the op-ed to Rafiekian “with substantive changes.” The op-ed was published under Flynn’s name in The Hill newspaper. It was entitled Our Ally Turkey Is In Crisis and Needs Our Support.

Following the publication of the op-ed, the FARA Registration Unit of DOJ sent Flynn a letter, asking about the op-ed and FIG’s relationship with Alptekin and Inovo, so it could determine whether FIG, Flynn, or anyone else should file a registration statement under FARA. After Covington, the lawyers for FIG, conducted an investigation, Covington ultimately decided to file a complete FARA registration statement . The statements listed Inovo, and not the government of Turkey, as the foreign principal.

On December 1, 2017, Flynn pled guilty in a separate case to unrelated charges. He agreed to cooperate with the government.

Section 951 Conviction

Judge Trenga’s opinion observed that mothering about the structure of GIG’s contracts with Inovo and Alptekin or the payments made pursuant to those contracts gives rise to a reasonable or rational inference that Rafiekian had acted or agreed to act as an agent of the Turkish government. The evidence at trial was insufficient to conclude that Rafiekian had agreed or act subject to Turkey’s director or control. The opinion reasons that no evidence exists that the Turkish government required the op-ed, either directly or through Alptekin.

Conspiracy Conviction

The opinion finds insufficient evidence to convict Rafiekian of conspiracy to (1) act as an unregistered agent of a foreign government in violation of Sec. 951; and (2) make willful and material false statements and omissions in a FARA filing in violation of 22 U.S.C. § 618(a)(2). The opinion underscored Rafiekian’s efforts to comply with any registration or notification requirements, including his consultations with two law firms concerning FIG’s registration obligations, FIG’s filing under the Lobbying Disclosure Act on the advice of a lawyer, and his voluntary disclosure to U.S. authorities on September 28, 2016 concerning the FIG engagement arranged through Alptekin “as a business contact” who had “senior level contracts in the Turkish government.”

Notice of Closing the Investigation of Podesta and Weber

The decision to end the investigation of Podesta and Weber followed weeks after a federal jury found former White House counsel Gregory B. Craig not guilty of lying to the DOJ about his media contacts concerning his Ukrainian work. The investigation of Podesta and Weber grew out of the investigation of Manafort and Craig. The Podesta Group and Mercury, for whom Vin Weber worked, reported on their FARA filing that they had represented the European Center for Modern Ukraine, a Brussels-based nonprofit group. Prosecutors alleged the real client was the government of Ukraine.

The current issue of the IELR will discuss in more detail the implications of the Rafiekian acquittal and the close of the investigations against Podesta and Weber.

U.S.-El Salvador Sign Agreement to Force Asylum Seekers to El Salvador

September 23, 2019 by Bruce Zagaris Leave a Comment

On September 20, 2019, the United States and El Salvador governments signed a Protection Cooperative Agreement. The Acting Secretary of the U.S. Department of Homeland Security, Kevin K. McAleenan signed on behalf of the United States. The Minister of Foreign Affairs, Alexandra Hill Tinoco signed on behalf of El Salvador.

According to a joint statement, the Agreement recognizes El Salvador’s recent decision to join the Comprehensive Refugee Response Framework. It states it will use U.S. and international best practices to “enhance collaboration on building protection capacity and increase protection options closer to home for vulnerable populations.”

The two governments commit to responding to “the issue of irregular migration in a joint and humane way that will contribute to greater prosperity and security of the region.” The Agreement shows the partnership between both governments “to discourage dangerous irregular migration across Central America toward the U.S. and to combat transnational criminal organizations, strengthen border security, and reduce human trafficking and smuggling.”

Once the Agreement becomes effective, it will further expand the capacity of protection systems in the region. The joint statement does not state when the agreement will take effect and what will be required. The U.S. and Guatemala signed a similar agreement in July in the waning days of the Jimmy Morales Administration. However, the Guatemala Constitutional Court ruled that the Parliament must approved the policy before it takes effect.

The Cooperative Agreement follows the Letter of Intent signed by Acting Secretary McAleenan with the Government of El Salvador last month in San Salvador to intensify bilateral cooperation in key areas.

A leading journal in El Salvador observes that the country with the most asylum applicants in 2018 has now agreed to accept asylum applicants that Trump rejects.

The joint statement expresses that “(i)n recent months, Acting Secretary McAleenan has also forged partnerships with Mexico, Guatemala, El Salvador, Honduras and Panama to disrupt human and drug smuggling operations and address the crisis at the U.S.-Mexico border.”

While the agreement aligns with the administration’s “third country” asylum rule, that term was not used in the press conference between the two signatories announcing the agreement.

The obligation for asylees to look for refuge in the countries from which they flee contradicts what travel warnings of the U.S. Department of State. As of January 28, 2019, the State Department issued a travel advisory with respect to El Salvador, advising:

“Reconsider travel to El Salvador due to crime…Violent crime, such as murder, assault, rape, and armed robbery, is common. Gang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread. Local police may lack the resources to respond effectively to serious criminal incidents.”

Various international human rights organizations observe that a country with the sixth highest number of persons seeking asylum in 2018 does not meet the conditions to protect asylees in its territory.

Charanya Krishnaswami, the advocacy director for the Americas at Amnesty International USA, criticized the agreement, stating: “This agreement makes a mockery of the right to asylum. People should not be forced to seek safety in countries where they will not be safe. She continued that “El Salvador has one of the highest rates of violence in the world, including gender-based violence so rampant that Amnesty International declared it one of the most dangerous countries in the world to be a woman. It is not safe for its own citizens, much less for asylum-seekers.”

The October issue of the IELR will have additional information on the agreement and the El Salvador initiative to strengthen patrolling of its borders, which the United States government is partially financing.