The U.S. Congress has expressed increasing concern in recent years about the rise in transnational repression—that is, cross-border actions ranging from assassinations and abductions to intimidation and financial blacklisting that seek to deter and punish opposition or dissent. One form of transnational repression that has attracted considerable attention is the abuse by certain member countries of Interpol, the international organization tasked with facilitating worldwide police cooperation. As the single-largest funder of Interpol, the United States has an opportunity to take significant steps to curtail transnational repression by opposing Interpol abuse. This would both help to ensure that Interpol serves its intended purpose, and aid in setting the agenda for wider liberal democratic opposition to transnational repression in all its forms.

The myriad iterations of transnational repression are best summed up in Freedom House’s 2021 report “Out of Sight, Not Out of Reach,” which found that 31 governments used physical forms of transnational repression against people in 79 other countries during the period of January 2014 to November 2020. The leading oppressor states include China, Turkey, Rwanda, Saudi Arabia, Russia, and Iran, all of which are the subject of Freedom House case studies. Though Freedom House makes it clear that transnational repression involves much more than Interpol abuse, it also emphasizes that “Interpol abuse is, in fact, disturbingly common. In the last two decades, numerous governments have learned that ‘red notices’ and other notifications provide a cheap and easy means of reaching exiles … At least 12 states abused Interpol notices specifically to detain exiles during the time period examined in this report.”

This abuse has not escaped the attention of the executive branch, or of Congress. Beginning with its report on 2019 (issued in 2020), the U.S. State Department’s Country Reports on Human Rights Practices have included Interpol abuse. Though these reports are far from complete, they are a valuable starting point that acknowledge and begin to address the problem.

Potentially more significant is the Transnational Repression Accountability and Prevention Act (TRAP Act), which was first introduced on a bipartisan basis in both the House and Senate in September 2019, following a hearing by the U.S. Helsinki Commission on transnational repression that focused on Interpol abuse. Although Interpol’s network for disseminating requests for international assistance is supposed to be strictly limited to the pursuit of apolitical ordinary law offenses, several of its member nations notoriously use red notices—Interpol’s system of published alerts to seek the location and arrest of a wanted individual—to harass political opponents or business owners.

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As one of us explained in an analysis of that bill’s provisions in the Federalist Society Review, the 2019 TRAP Act had the potential to make a major contribution to preventing transnational repression through Interpol. Unfortunately, Congress failed to advance the 2019 proposal. Undaunted, its bipartisan Senate sponsors introduced it again in May 2021, and the House followed suit, again on a bipartisan basis, in July 2021.

The 2021 TRAP Act made more progress than its predecessor, and in late May was cleared—in a revised form—as an amendment to the Endless Frontier Act (EFA) by the Senate Foreign Relations Committee (SFRC), the Judiciary Committee, the Commerce Committee, and Senate Majority Leader Chuck Schumer (D-NY), who sponsored the EFA. Unfortunately, the amendment package fell afoul of several blanket holds, and in the end, the TRAP Act was not passed as part of EFA. Nevertheless, the effort put in—especially by Senator Roger Wicker (R-MS), who sponsored the TRAP Act—to get the Act cleared by the SFRC majority and minority, and to overcome resistance from the Department of Justice, was a significant step forward towards eventual passage of the TRAP Act’s provisions.

Pros and Cons of the Latest Version

That effort paid off with the inclusion of the TRAP Act—in heavily modified form—in the FY2022 National Defense Authorization Act, as passed by the House on Sept. 23. The TRAP provisions in the NDAA are generally weaker than those of either the 2019 or the 2021 TRAP Acts, and largely mirror those in the TRAP provisions of the EFA. In one significant area, the NDAA TRAP differs from its predecessors for the better. It breaks new ground in creating the opportunity to push back against an increasingly pervasive form of transnational repression: the manipulation of the international banking system, particularly the rules intended to prevent money-laundering and restrict terrorist finance, to prevent the targets of repression from maintaining bank accounts, credit cards, or any form of normal financial life. We discuss the merits (and shortcomings) of this welcome addition later. First, some of the significant downsides of the NDAA TRAP.

The NDAA TRAP falls short of its predecessors in several ways. It eliminates the provision (Sec. 7 in 2019, Sec. 6 in 2021) that required the State Department to include Interpol abuse, and similar forms of transnational repression, in its annual country reports. The fact that the State Department decided in 2019 to begin including these kinds of transnational repression on its own is good, but it would have been better to mandate it via legislation.

The NDAA TRAP also follows the 2021 TRAP Act in removing a specific condemnation of Russia’s Interpol abuse, and makes its condemnation of Interpol abuse more general by eliminating any mention of Interpol’s Stolen and Lost Travel Document (STLD) database (which nations such as Turkey abuse to render their victims stateless by cancelling their passports). Russia is not the sole abuser of Interpol and so—to an extent—it makes sense to broaden condemnation beyond any specific country. But instead of simply removing the condemnation of Russia, it would have been far better to keep the mention of Russia while also calling out Turkey, China, the United Arab Emirates, and other known abusers, and to explicitly reference the STLD, which is one of the emerging frontiers of Interpol abuse.

The NDAA TRAP makes another small, but unfortunate, change by referring in (Section (b)) only to the harassment or persecution of “political opponents, human rights defenders, or journalists.” That list is fine as far as it goes, but it is far less comprehensive than the wording of the 2019 TRAP Act, which referred to the intimidation of “political opponents, journalists, members of civil society, and non-pliant members of the business community.”

Since a good deal of Interpol abuse—especially by states such as Russia—is directed at private business owners by corrupt regime officials who want to justify their unlawful confiscation of business assets (abuse which is coupled with tacit or overt political motivation), this change is restrictive and reflects an unhelpful disregard of the sophistication of serial Interpol abusers. The NDAA TRAP also fails to sufficiently promote desperately needed transparency reforms in both the Interpol General Secretariat and its appellate body, the Commission for the Control of Interpol’s Files (CCF), by weakening disclosure provisions in its Section (c) that were central to TRAP (2019) and, to a lesser extent, TRAP (2021).

The NDAA TRAP is also far less robust when it comes to promoting inter-agency cooperation against Interpol abuse. The 2019 TRAP Act contained a lengthy Section 4(2) that required a wide range of cooperative actions by U.S. departments and agencies—a necessity, given that the U.S. National Central Bureau, which controls U.S. interactions with Interpol, is co-managed by the Departments of Justice and Homeland Security, and that Interpol abuse often affects departments and agencies as far-flung as DHS’s Immigration and Customs Enforcement and the Treasury Department. This section was cut down considerably in the 2021 TRAP Act, and in the NDAA TRAP it has disappeared entirely, replaced by a limited requirement to inform the Interpol General Secretariat when the United States detects Interpol abuse.

That said, as noted above, not all the changes in the NDAA TRAP are negative. The NDAA TRAP now calls (in Section (c)(1)(c)) for an increase in dedicated funding to improve Interpol’s own scrutiny of potentially illegitimate red notices, funding that is certainly badly needed. It retains the requirement for the U.S. government to produce a report on Interpol (no longer a report on Interpol abuse), but the report must now (Section (d)(2)(A, C, D)) contain a list of specific countries that have abused Interpol systems, assess the Interpol CCF’s most recent operating rules, describe how Interpol’s General Secretariat reviews requests for violations of its rules, and address specific cases of Interpol abuse. All of these changes add welcome specificity to the mandated reporting.

The NDAA TRAP also retains (in Section (c)(1)(D)) a requirement found in previous iterations of the TRAP Act that the United States support candidates for elected Interpol positions who are dedicated to the rule of law. This requirement is of increasing significance given Russia’s attempt to seize the Interpol presidency in 2018, and UAE’s ongoing bid to win it in 2021.

Finally, the NDAA TRAP requires the United States to “request to censure member countries that repeatedly abuse and misuse Interpol’s red notice and red diffusion mechanisms, including restricting the access of those countries to Interpol’s data and information systems.” This is a measure that one of us called for three years ago in these pages, on the grounds that “unless nations face consequences for abusing the privileges of belonging to Interpol, it will ultimately be impossible to establish any deterrent power that will protect Interpol from abuse.” That remains true today.

Russia and China Using Interpol as Their Cat’s Paw

But the most significant changes that the NDAA TRAP makes to previous versions of TRAP come at the end of its provisions. The most innovative part of TRAP (2019) was arguably its Section 6, containing the “Prohibition of Denial of Services.” In its first section, this forbade the United States from arresting an individual solely on the basis of an Interpol communication without a U.S. arrest warrant and without verifying that the individual to be arrested could legally be extradited from the United States.

This was, and remains, Department of Justice policy, but in practice, this policy was (and is) often evaded: ICE instead arrests the individual for an immigration violation and then seeks their  removal from the United States, thereby obviating the need for a separate arrest warrant and extradition. That is why Sec. 6(b) in TRAP (2019) was so important: it forbade the use of Interpol communications from nations with which the United States does not have an extradition treaty to deny any immigration benefits unless the department or agency seeking to make use of the Interpol communication verified that the communication complied with Interpol’s rules. In plain English, this meant that Russia and China would no longer be able to use Interpol as their cat’s paw in the United States without any formal U.S. oversight and review.

This practice has been behind many notorious cases of Interpol abuse. In 2017, for example, Russian business owner Alexey Kharis, who had fled Russia after he was victimized in a notorious episode of Kremlin-inspired corporate raiding, had his visa revoked and was arrested at his asylum hearing in the United States after he was named in an Interpol red notice, issued at Russia’s request. DHS then used the red notice naming Kharis as evidence that he was an “international fugitive” – in spite of the fact that red notices have no independent evidentiary value and that Interpol cannot conduct any investigations to ensure the validity of the charges underlying them. These cases, as we can testify from our own legal work, have not ended since the Biden administration came into office. ICE justifies this practice on the grounds that it only pursues individuals against whom it believes a credible case exists. But in practice—and in its legal filings—ICE takes the position that red notices themselves constitute proof at the level of probable cause that an individual has committed a criminal offense.

Regrettably, therefore, TRAP (2019) provision addressing the denial of services has been almost completely gutted in the NDAA TRAP. It has been replaced by a simple “Prohibition Regarding Basis for Extradition,” which states simply that “No United States Government department or agency may extradite an individual based solely on an Interpol Red Notice or Diffusion issued by another INTERPOL member country for such individual.” While this may appear on its face to achieve the same result as the TRAP (2019) provision, it is, in effect, little more than window dressing. The United States almost never extradites anyone based solely on a red notice, but rather pursuant to a request for extradition from a foreign state. When the United States acts unilaterally, it generally seeks removal (which is not the same thing as an extradition) of the individual based on the claim that they are not lawfully resident in the United States.

The NDAA TRAP’s prohibition on extradition leaves this problem unaddressed and will therefore achieve almost nothing in practice. The NDAA TRAP sorely needs to reinstate the denial on the prohibition of services from one of the earlier TRAP Acts—preferably Sec. 6(a) from TRAP (2019), combined with Sec. 5(b) from TRAP (2021), which set an even higher bar for the use of Interpol communications in U.S. immigration proceedings than TRAP (2019).

The NDAA TRAP also should establish via legislation that a red notice does not meet the American “probable cause” standard and therefore cannot serve as the sole or primary basis for denying an asylum claim or justifying removal from the United States. This is all the more important because of a questionable decision by the Board of Immigration Appeals in 2020, Matter of W-E-R-B–, which held that a red notice could serve as reliable evidence of ineligibility for asylum or withholding of removal. This decision was later contradicted by a ruling in the 8th Circuit Court of Appeals.

Financial Systems Abuse as a Tool of Repression

The removal of any meaningful “denial of services” provision significantly weakens the NDAA TRAP. But even without those provisions, the NDAA TRAP—thanks to its finding that Interpol abuse is a reality and its reporting requirements—would still be a valuable contribution to fighting Interpol abuse, and set a new standard for the democratic supervision of Interpol. The NDAA TRAP also takes an important step forward with its final, and wholly new, section (g), which amends U.S. law to forbid financial institutions from terminating services, or excluding an individual from services, on the sole basis of a red notice.

The way in which red notices can affect an individual’s ability to maintain normal access to the financial system—which is essential both on its own, and especially when necessary to engage and compensate lawyers to fight back against Interpol abuse—has been appreciated for years. In 2015, one of us explained in the Weekly Standard how Interpol serves as “Putin’s Long Arm.” In a nutshell, financial institutions are obliged to carry out due diligence checks on their customers, both at the inception of the client relationship and on an ongoing basis. They outsource the data collection for these checks to a variety of independent firms, which in turn vacuum up data from every source at their disposal, including the public version of Interpol’s red notice database, with little regard for the veracity of the information or credibility of the source.

The magnitude of the fines for non-compliance levied by the U.S. Treasury, as well as the reputational risk for the banks of being perceived as lax on money-laundering regulations, means that banks are understandably reticent to take any risks onboarding or maintaining their customers: any hint that a client, or a potential client, has attracted the attention of Interpol—particularly for alleged financial improprieties—is likely to result in the prompt termination of the client’s accounts by the bank, as well as potential reporting to financial regulators that can trigger criminal investigations and additional enforcement measures.

Authoritarian states have noticed this vulnerability—which, it is important to note, is a result of the banks seeking to obey the law as it is currently imposed—and have developed a number of tactics to “poison the waters.” Russia has been an innovator in this form of transnational repression, finding that it does not even need to obtain a red notice to destroy the financial reputation of its victims: all it needs to do is issue a few online news reports (typically through Kremlin-friendly propaganda websites), translate them into English, and engage the troll farms and bots to optimize the search engines results.

Within a few months, the data-collection firms will be reporting to the compliance departments of their banking customers that, based solely on these planted articles, the target poses serious regulatory risks—and the banks will act accordingly. The abusive state can augment its reach through its financial regulators (such as Russia’s Rosfinmonitoring and the notoriously corrupt Depositary Insurance Agency), which can issue press releases containing derogatory statements about its targets. The only way for the target to fight back against this kind of repression is to hire lawyers to challenge the data-reporting companies directly—an arduous and expensive process, especially because the data collectors take the position that they simply aggregate and report on evidence available in the public domain, and cannot be held responsible for the contents of the reports they issue to the banks.

On its own, it is therefore unlikely that the banking provisions in the NDAA TRAP will afford much relief to the victims of this financial blacklisting, for the simple reasons that banks rarely act on a red notice alone—the poisoning-of-the-waters strategy ensures that there are always other supposedly incriminating reports—and that authoritarian states do not even need to obtain a red notice for this strategy to be effective. A mere claim that a red notice has been requested can often be sufficient to raise red flags within the compliance departments of the banks, especially since many red notices are issued confidentially to law enforcement agencies, making their existence difficult to verify or disprove.

But the banking provisions in the NDAA TRAP are nonetheless a valuable shot across the bow of Interpol, which makes it clear that, due to the abuses of the Interpol system, the credibility of Red Notices has been diminished. It will not stop the data-reporting firms from raising red flags based on fabricated information or the banks from closing accounts, but it will create an additional path for victims to fight back, both in the U.S. legal system and through Interpol’s appeal process.

Weaker Than Its Predecessors

Still, the NDAA TRAP is weaker than its predecessors overall. The removal of the “denial of services” provisions is a particularly serious loss. Almost as damagingly, the NDAA TRAP fails to mandate a framework for inter-agency cooperation against Interpol abuse, perpetuating the oft fragmented and piecemeal approach of U.S. agencies to Interpol red notices. The NDAA TRAP does—in its banking provisions, in particular—include some welcome advances compared to its predecessors, but most of the positive changes are in the realm of reporting, while most of the negative changes are in the realm of policy and enforcement. Unless Congress continues to pay attention to this issue, and to demand action based on the reports that will be submitted to it, the NDAA TRAP’s reports are unlikely to lead to any significant action.

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Even the NDAA TRAP’s requirement that the United States “request to censure member countries that repeatedly abuse and misuse” Interpol, though admirable as a goal, is likely to achieve little in practice, because it leaves the meaning of “repeatedly” up to the executive branch. We believe that, since the Department of Justice has a vested interest in maintaining broad international cooperation with foreign law enforcement to support its own initiatives, in particular through its Office of International Affairs, the bar of “repeatedly” will be set high and rarely, if ever, met. The fact that the DOJ will, together with the State Department, have co-lead responsibility for the reports mandated by the NDAA further decreases the likelihood that those reports will be written in such a way as to compel the United States to propose any censures.

The failure of the NDAA TRAP to connect its finding that “some INTERPOL member countries have repeatedly” abused Interpol with its requirement that the United States request a censure of these countries is also a major flaw: if Congress is sincere in its assessment that abuse has occurred repeatedly, or if reporting reveals repeated abuse in the future, a U.S. censure request should follow automatically. Much the same is true of the State Department’s Country Reports on Human Rights Practices: the NDAA TRAP’s failure to require that these address Interpol abuse means that the Country Reports cannot be used as a mandated basis for a censure request—which may well be why the Country Reports are not mentioned in the NDAA TRAP. Above all, though, the NDAA TRAP badly needs to recognize as a matter of law a simple and uncontroversial truth: red notices do not meet the probable cause standard under U.S. law. This is already the position of the Department of Justice; Congress should codify it as law.

The issues raised by Interpol abuse are complex and serious. But in dealing with them, the United States—and other democracies—have every conceivable advantage over those members who seek to abuse the system. The democracies pay the lion’s share of Interpol’s bills, and Interpol’s Constitution and subsidiary rules are entirely on the side of the rule of law. Recent years have borne witness to myriad attempts by authoritarian states to exploit multilateral institutions, which were not built with robust internal safeguards to protect against bad faith members. If the United States—and Interpol’s other democratic members—cannot ensure that Interpol abides by the letter and spirit of its governing rules, then there is little hope that other international organizations, where the position of the democracies is often less prominent, will be capable of withstanding authoritarian efforts to leverage their powers in furtherance of transnational repression.

The NDAA TRAP is not as strong as either of its predecessors, and it shows that successful efforts have been made—likely by the Department of Justice—to whittle down the provisions of those prior iterations. Its treatment of the censure mechanism, of inter-agency coordination to address Interpol abuse, and of the legal significance of red notices in the United States can and should be improved in the Senate (though regrettably, the current Senate NDAA does not include any content from the TRAP Act). But even in its current form, the NDAA TRAP sets a new standard for reporting on and limiting the influence of Interpol abuse, and clearly demonstrates the U.S. opposition to this abuse as a central pillar of the fight against transnational repression.