Interpol Realism

Over the past few weeks, there has been a lot of concern in some quarters about President Obama’s Executive Order extending certain legal immunities to Interpol. These concerns are misplaced. I am currently writing a research paper on Interpol, which will cover the immunities, and many other issues. In the meantime, some preliminary clarifications:

Interpol has no authority to make arrests or seize property. Interpol is purely an organization for data exchange and analysis. Interpol employees in the United States (or anywhere else) have no authority to conduct any activities except as allowed by the host government. The Obama Executive Order adds nothing to Interpol’s non-existent law enforcement authority.

Interpol’s entire US presence consists of a five-person office in New York City for liaison with the United Nations. Under the Obama order, the premises and documents of this NYC office are absolutely immune from search and seizure. Pursuant to the International Organizations Immunities Act, passed by Congress in at the time the United Nations was being set up, seventy other international organizations in the US have immunities identical to those now possessed by Interpol. The presence of the UN was obviously going to lead to the establishment of US offices for many international organizations, and Congress want to regularize the procedures and immunities for such organizations.

Unlike standard international organizations, Interpol was not created by a treaty, and its membership consist of police agencies, not nations per se. So one could make the legal argument that Interpol is not an international organization. However, both the United Nations and the United States have taken the position that Interpol qualifies as an international organization.

Interpol requested the full set of IOIA immunities in 2005. In 2008, the US State Department approved the request, but the White House did not get around to signing the Executive Order. It obviously was not a priority for anyone, nor should such a minor issue have been a priority.

So why did President Reagan, in 1983, grant Interpol some but not all of the available immunities? Some explanation of Interpol’s structure will help here. Interpol is headquartered in Lyon, France. Today it has over 600 employees, consisting of permanent staff, as well as employees from many different national law enforcement organizations who are “seconded” (loaned) to Interpol for a few years. Every one of the 188 nations which participates in Interpol has a “National Central Bureau” (NCB) which coordinates interaction with Interpol. The NCB offices are located in the home country, and they are staffed by employees of the home country, not by Interpol employees. The United States has the largest NCB, consisting of approximately 80 employees in Washington, D.C., plus an auxiliary NCB in San Juan. The NCB is responsible for transmitting the data which the US chooses to provide to Interpol, and thereby make accessible to the NCBs of other countries. Such data include the identification numbers of lost or stolen US passports, fingerprints or DNA for some criminals, and so on.

The NCB in the United States is not an international organization. It is a part of the US Department of Justice, and is subject to precisely the same laws as any other part of the Department of Justice. The NCB staff interacts with Interpol, but they are employees of the federal government, not of Interpol. Neither the Reagan nor the Obama Executive Orders apply to the NCB offices, nor could they.

As of 1983, Interpol had no staff or offices in the United States. However, a 1981 D.C. Circuit decision, Steinberg v. International Criminal Police Organization, 672 F.2d 927, held that Interpol could be sued in federal courts, because Interpol’s interaction with the US NCB created sufficient US contacts for a US court to assert long-arm jurisdiction.  The Circuit’s decision was written by the recently-appointed Judge Ruth Bader Ginsburg. Steinberg pleaded a very strong case for defamation:

Steinberg’s complaint identifies an Interpol document, titled “Blue International Notification 500/59-A3674,” describing him as a wanted international criminal who used the alias “Mark Moscowitz.” Interpol widely communicated the Notification, Steinberg alleges, to its liaisons, among them, the United States National Central Bureau (USNCB), now located in the Department of Justice, this country’s liaison with Interpol. In the summer of 1975, on learning of the document and Interpol’s transmission of it to liaisons, Steinberg asserts, he notified Interpol and twice offered proof that the Notification was erroneous. Despite the proof he offered, Steinberg further states, Interpol continued to publish the Notification and other statements associating Steinberg with “Mark Moscowitz.” It did so, according to Steinberg, until late July 1976, when Interpol finally conceded Leon Steinberg was not “Mark Moscowitz.” Steinberg seeks general and punitive damages for the substantial injury he alleges he has suffered as a result of the Blue International Notification.

Now vulnerable to US lawsuits, Interpol asked the Reagan administration to grant it IOIA protection. The Reagan administration at the time was beginning to vastly amplify the US relationship with Interpol. The consequences, over the long term, were a substantial increase in US contributions to Interpol, the US displacing France as the most influential nation within Interpol, and Interpol taking a major interest in counter-terrorism. Given the Reagan determination to work more with Interpol, it is not surprising that the administration granted Interpol’s request for IOIA immunity from civil lawsuits.

At the advice of the Department of Justice, the Reagan Executive Order did not grant complete IOIA immunities, because they were unnecessary. Interpol had no office in the US, and therefore had no need for IOIA’s protections of international organization property and files. The Obama Order simply recognizes changed circumstances; now that Interpol has a small US office, it is appropriate that Interpol have the standard immunities for international organization offices.

As I will detail in my research paper, I believe that the Reagan-granted civil lawsuit immunity should be partially rescinded, and, if necessary, Congress should revise the IOIA to allow for grants of only partial immunity from civil suits. Interpol is a much more competent organization than it was in 1975, when it allegedly defamed Steinberg. Nevertheless, Interpol does sometimes disseminate potential defamatory information without sufficient caution. First of all, Interpol distributes “diffusions.”  A diffusion is a document from one nation that a particular person is wanted for a particular crime in that nation. Diffusions are not reviewed for factual accuracy by Interpol staff, and they are not formally endorsed by Interpol. However, Interpol’s global distribution of the diffusions could, at least arguably, constitute participation in defamation, particularly when the diffusion is created by a nation with a notoriously corrupt and dishonest law enforcement system.

Interpol’s official Notices (such as the “Blue Notice” on Steinberg) are given a higher standard of care. (A Notice is not an “international arrest warrant.” A Red Notice is merely information that a person is sought by a particular country, for a particular crime, and the country will extradite him if given the opportunity. A Blue Notice is a request to collect additional information about a person in relation to a criminal matter.) Nevertheless, at least occasionally, defamatory Notices are  distributed. Most notoriously, Interpol distributed three Red Notices from Kazakhstan containing false claims that some political opponents of the dictatorship had committed tax crimes. Although Interpol staff eventually opposed the Kazakhstan Red Notices, the issue was decided by the Interpol General Assembly (Interpol’s governing body), which narrowly voted in favor of the Red Notices. Perhaps if Interpol had faced a potential lawsuit for knowingly distributing defamatory information, the General Assembly would have voted differently.

However, the big topic of concern in the past several weeks has not been “Interpol can get away with defamation!!!!” The defamation immunity problem has existed for 27 years. The current concerns about the Obama Executive Order are about the dangers of unaccountable international police operating in the United States. These concerns are without merit. Interpol staff do not even carry guns, and they certainly do not engage in policing in the United States.