ICE Wrongly Continues To Use Interpol Red Notices For Targeting

COMMENTARY Global Politics

ICE Wrongly Continues To Use Interpol Red Notices For Targeting

Dec 21, 2018 8 min read
Ted R. Bromund, Ph.D.

Senior Research Fellow, Margaret Thatcher Center for Freedom

Ted Bromund studies Anglo-American relations, U.S. relations with Europe and the EU, and the U.S.’s leadership role in the world.

Earlier this month, U.S. Immigration and Customs Enforcement (ICE) announced it had arrested 105 people in an operation “targeting criminal aliens and public safety threats.” The agency described four of those arrested as having “Interpol warrants.”

These arrests are part of a larger, disturbing pattern of ICE reliance on Interpol Red Notices to target individuals for arrest. It’s a practice which runs a serious risk of allowing Vladimir Putin to pick his victims in the United States.

First, there is no such thing as an “Interpol warrant,” and it is disturbing that ICE appears to believe that such an entity exists . If you doubt me, readInterpol’s own statement on Red Notices:

A Red Notice is a request to locate and provisionally arrest an individual pending extradition. It is issued by the General Secretariat at the request of a member country or an international tribunal based on a valid national arrest warrant. It is not an international arrest warrant.

Perhaps ICE means the phrase “Interpol warrant” in a colloquial way. Perhaps – but I doubt it. ICE gives every evidence of believing that Red Notices are warrants, and, as such, are a reliable way to focus the agency’s resources. Since at least June 2015, ICE has run what it calls Project Red. The project description states that “those targeted by ICE are wanted fugitives, and many are the subject of warrants and active Interpol Red notices.” This implies that ICE views Red Notices as akin to actual warrants.

Project Red did not mark the start of ICE’s reliance on Red Notices. The agency has been conducting joint operations with U.S. National Central Bureau (sometimes known as “Interpol Washington,” this is the arm of the U.S. government responsible for liaison with Interpol), since 2010. These latest arrests bear all the hallmarks of that initiative.

For example, the ICE press release emphasizes that the arrests focused on “four individuals in the country illegally who have Interpol warrants based on crimes they committed in their home countries.” It also lists these four individuals first and separately, as though they are worthy of particular attention (and their arrest of particular praise). They include two Korean nationals, an Ecuadorian arrested on a charge of fraud, and a Russian “who has an Interpol warrant for the crime of large scale fraud.”

For his part, the Field Office Director of ICE Enforcement and Removal Operations in Newark, NJ, stated that the focus of the operation was on “arrests of illegal aliens who have been convicted of serious crimes or those who pose a threat to public safety.”

All this may sound innocuous. It’s not.

First, two of the four individuals arrested in New Jersey (the Ecuadorian and the Russian) have not been convicted of any crime, serious or not. And no matter how serious an offense fraud might be, it is not a threat to the physical safety of the community. Even on ICE’s own terms, these arrests are not easy to justify – except, it would seem, on the grounds that these individuals were named in Red Notices, which ICE apparently believes is justification enough for the public.

Second, under the terms of the U.S. Justice Department’s Manual, and the position of the U.S. National Central Bureau, a Red Notice alone is not a sufficient basis for arresting anyone in the U.S. That is because Red Notices do not meet the “probable cause” standard of the U.S. Constitution. ICE evades this fact by focusing on “individuals in the country illegally.” In other words, the Red Notice serves as a way for ICE to decide which individual to arrest – but the actual basis for the arrest is that the individual is in the U.S. illegally.

I have no problem with arresting and deporting illegal aliens. But I know of cases in which an individual entered the U.S. legally on a valid visa, and was named in a Red Notice. The Red Notice led to the cancellation of the visa. So the individual was suddenly in the U.S. without a valid visa and was arrested on that basis. The Red Notice was then used as supporting evidence that they were a dangerous and wanted foreign criminal. So even though the U.S. does not arrest individuals on the basis of a Red Notice alone, a Red Notice can manufacture an immigration offense that can then be used to make an arrest.

If Red Notices were reliable indicators of guilt, or even credible suspicion of guilt, that might be acceptable, or at least understandable. But they are not reliable. And that leads to the third problem. Even Interpol acknowledges that Red Notices are not evidence of guilt. Unfortunately, some are also illegitimate and abusive, because they are sought by nations to harass dissidents, exiles, or inconvenient businessmen.

And of all the Red Notices out there, Russian Red Notices alleging “large scale fraud” might just be the worst. Acres of evidence from international organizationsnational governmentsNGOs, and journalists demonstrate Russian abuse of the Interpol system for political purposes.

Among the most egregious of these cases is the Russian harassment of William Browder, the champion of the Magnitsky Legislation, but I have been involved as an expert witness in several less well-known but equally awful cases, in which individuals have been held in U.S. jails for over a year on the strength of nothing more than a Russian Red Notice.

The fact is that the Russians love to use a charge of “large scale fraud” when they abuse Interpol. That is the term they use — and, remarkably, ICE has reproduced it exactly in their press release. The Russians use this charge partly because accusations of financial crime are easy to make and hard to disprove – a murder requires a body, whereas financial crime can consist of nothing more than a bunch of ones and zeros in the wrong bank account. But it is also partly because the criminals in the Kremlin use charges of fraud to justify stealing businesses, which they then justify as seizing the assets of a criminal. In cases like this, the Red Notice is icing on the cake, published in order to make the seizure seem like an act of law.

I am not saying that anyone arrested in the recent operation in New Jersey is innocent. Or guilty. But in a world of limited resources, ICE should not, in my view, be using Red Notices to target individuals — regardless of their immigration status — absent an arrest warrant obtained from the U.S. Attorney’s Office. That, after all, is the procedure specified in the U.S. Justice Department’s Manual. It should definitely not be using Russian Red Notices (or Red Notices from other nations with a reputation for abusing Interpol) alleging “large scale fraud” as a way to target individuals for arrest. Doing so runs a high risk of making ICE into an arm of the Kremlin.

And ICE should stop referring to Red Notices as “Interpol warrants” – which I fear reflects ICE’s larger failure to understand that Red Notices are published as a result of an administrative procedure, not a judicial process, which is precisely why they do not meet the standards of the U.S. Constitution. Let me spell out what that means. Interpol does not investigate purported crimes. Red Notices are not based on evidence. They are based on nothing more than the word of the government that requested the Red Notice. The government making the request does not even have to supply an arrest warrant.

ICE is hardly alone in its misunderstanding. Hollywood has assiduously fostered the incorrect belief that Interpol is an international police agency, but that does not excuse ICE.

As a conservative, I strongly support enforcement of this nation’s immigration laws. But I definitely do not support allowing Vladimir Putin to decide who qualifies as a criminal in the United States. As a sovereign nation, that is entirely up to us. By crediting Russian Red Notices, and making them the targeting basis for its operations, ICE is, in effect allowing Putin to pick his victims. I find the fact that Putin can use Interpol to reach into the United States and put people in jail intolerable.

And don’t tell me this is about President Trump. This has been going on since 2010, and in the form of Project Red since at least 2015. This is about a bureaucracy doing its thing, which in this case is to arrest and deport foreign criminals. Relying on Red Notices is simply a convenient way for ICE to achieve that end. Unfortunately, relying on Red Notices alone is also unsafe and unwise. It leads not to ICE arresting foreign criminals in the U.S., but to ICE doing the bidding of the foreign criminals in the Kremlin .

This piece originally appeared in Forbes