Ian Lynch
Sep 12 2019

Bipartisan U.S. legislation designed to address Interpol abuse

At the U.S. Helsinki Commission’s hearing on transnational repression on Thursday, Co-Chairman Senator Roger Wicker announced that he and Committee Chairman Alcee Hastings were planning to introduce bipartisan legislation in the House and Senate to tackle the abuse of Interpol by autocrats.

In recent years, Turkey has been one of the chief abusers of Interpol red notice and diffusion communications.

Wicker said the forthcoming Transnational Repression Accountability and Prevention (TRAP) Act “codifies strict limits on how Interpol communications can be used by U.S. authorities against individuals in our country.”

The act is likely to pass given its bipartisan support. This would be a significant step towards curbing what Wicker called politically motivated abuse of Interpol by autocrats to “harass and detain their opponents overseas.”

Testifying before the Commission, Sandra Grossman, immigration litigator and partner at Grossman Young & Hammond, said that while the Department of Justice did not consider a red notice sufficient basis for arrest, U.S. law enforcement agencies, in particular Immigration and Customs Enforcement, were “treating many red notices as conclusive evidence of criminality.”

When a member state submits a request for the publication of a red notice in the Interpol database it is subject to a compliance screening.

However, autocrats can easily hide the political character of unjust red notices and diffusions behind often fabricated charges like money laundering that fit the legitimate law enforcement purpose of Interpol communications.

According to Theodore Bromund, senior research fellow at the Heritage Foundation, screening red notices is complicated by the reality that “Interpol is not investigative, so it can only rely on public information.”

The organisation’s “equal treatment of red notice requests leads to less protection for more obscure individuals,” he said.

To improve the protections from unjust Interpol communications, Grossman told Ahval, the TRAP Act will require additional screening of Interpol red notices and diffusions by the U.S. National Central Bureau, an agency established by Interpol member states that considers whether to act on notices issued by other states.

Interpol diffusions are less formal alerts that have received less attention than red notices, but they are also ripe for abuse because any member state can use the organisation’s communications channels to disseminate a diffusion without Interpol oversight.

“Interpol has recently admitted that some governments have been able to use its resources to request the arrest of individuals after the organisation refused to process their red notice requests against the same individuals,” according to Yuriy Nemets, managing member of NEMETS law firm.

Prominent among those governments, and of chief concern to U.S. lawmakers, is Russia.

The detention of Alexey Kharis, the former head of a Russian construction company, exemplifies Russian abuse of Interpol communications that fits the general pattern of autocratic transnational repression described by the experts at the Commission hearing on Thursday.

In 2017, the U.S. Department of Homeland Security revoked Kharis’s B-2 tourist visa because of a Red notice submitted by Russia charging him with fraud. When Kharis went to the DHS asylum office in hopes of resolving the status of his request for asylum, ICE detained him because the cancelation of his visa then meant he had officially overstayed his visa.

For cases like Kharis’s, “The red notice is what put you in violation of the law in the first place,” Bromund said.

In another case, emblematic of the inconsistent treatment of Interpol communications by U.S. immigration authorities “the judge wrote, the red notice contributed to suspicion that the asylum seeker committed a non-political offense,” said Nemets.

All that a red notice or diffusion proves, he said, “is that a country is seeking the individual’s location for the purposes of her or his extradition or similar legal action. Neither a red notice nor a diffusion means that the prosecution behind it is lawful or even that the arrest warrant on which it is based is valid.”

The U.S. District Judge Jon S. Tigar, who granted Kharis’s habeas corpus petition in November 2018, wrote in his ruling that, “the constitutional problems of relying on criminal charges are compounded when a foreign nation can initiate those charges without satisfying a probable cause standard.”

Although the U.S. court system eventually ruled in Kharis’s favor, Russia still succeeded in harassing its target, leaving him in arbitrary detention for more than a year.

Autocrats know that democratic states like the U.S. are unlikely to extradite dissidents solely because of a red notice, but they have learned they can use Interpol communications to manipulate government bodies in democratic states for their own purposes.

The Turkish government has taken advantage of the simple, automated process of generating requests to Interpol to upload batches of tens of thousands of red notice requests, said Freedom House director Nate Schenkkan at the panel.

At the Commission hearing, Grossman called attention to the fact that “blind acceptance of Interpol communications without scrutiny can, and often does, turn ICE officials and our own immigration judges into unwitting agents of repressive regimes.”

The TRAP Act is designed to end this pattern of U.S. government complicity.

The harassment and arbitrary detention of dissidents targeted by red notices requested specifically by Turkey is primarily a problem in European countries.

Edward Lemon, the DMGS-Kennan Institute fellow at the Daniel Morgan Graduate School, said “there is a rapporteur on Interpol abuse at the Parliamentary Assembly of the Council of Europe. Through this body, parliamentarians have already discussed Interpol abuse and could move to recommend domestic legislation in line with the U.S.”

The TRAP Act could therefore have knock on effects that curtail Turkey’s abuse of Interpol, if it inspires a consensus of democratic countries to pass similar national legislation to compensate for the loopholes in Interpol’s system.