Congress and the Executive branch have engaged in several oversight efforts after an increased focus on the misuse and abuse of INTERPOL’s tools. This post will discuss the issue of INTERPOL abuse and related oversight efforts and argue that greater oversight is needed to ensure that federal agencies that handle immigration-related cases do not inadvertently act as accessories to abuse.
What is INTERPOL?
The International Criminal Police Organization, commonly known as INTERPOL, is an intergovernmental organization comprising 195 member countries, including the United States. Each country sets up a National Central Bureau (NCB) as a member of INTERPOL. These NCBs communicate with national law enforcement and support INTERPOL’s intention of sharing information with members’ law enforcement agencies to address and resolve crime.
What Are Red Notices and Diffusions?
The color-coded notice and diffusion system is one of the most commonly utilized tools for INTERPOL members to disseminate and receive information about transnational crime or criminals. Among these color notices, the INTERPOL red notice is the most issued. It serves as a request from one member’s NCB to other member nations to locate and arrest a “wanted” person based on an arrest or court order from the requesting member, and commonly for extradition to that country. Red notices typically contain information such as the individual’s name, birth date, nationality, physical attributes, and, if available, a photograph or biometrics. It also typically provides information on the crime the individual is wanted for. Another notice type, the diffusion, is similar to a structured email. Diffusions can be circulated directly by a requesting member nation to one or more other members. They also use the same color-coded system as notices. So, there are red diffusions, also known as “wanted person diffusions.” In addition to their difference in structure, red notices must be approved by INTERPOL’s General Secretariat before posting, whereas red diffusions are not subject to prior review. In 2022, 23,760 red notices and red diffusions were issued.
Just issuing a red notice or red diffusion can create significant consequences for their subjects, including arrest or temporary detention, inability to travel, and financial consequences like frozen or closed bank accounts. Federal agencies such as the Department of State (DOS), Department of Homeland Security (DHS), and Department of Justice (DOJ) consider the issuance of a red notice or diffusion when administering discretionary immigration benefits and determining whether to initiate removal proceedings. Issuance could be a driving factor in consequences like extended processing, visa denials and revocations, deportation, and bond determinations.
What is INTERPOL Abuse and Its Immigration-Related Consequences?
INTERPOL’s tools are undoubtedly helpful in facilitating the apprehension of criminals. However, recently, the United States has placed greater scrutiny on the use of INTERPOL by certain nations as a tool for transnational repression (TNR). In its October 3, 2023 report, the Government Accountability Office (GAO) defines TNR as “when governments, either directly or through others, reach across borders to silence dissent from diasporas and exiles, including journalists, human rights defenders, civil society activists, and political opponents.”
One of the more prevalent ways governments engaged in TNR has been the abuse of INTERPOL red notices and diffusions. Doing so has allowed regimes to impose consequences on individuals with minimal effort and through seemingly trustworthy means.
On September 12, 2019, the Commission on Security and Cooperation in Europe, also known as “the Helsinki Commission,” held a hearing concerning TNR. During the hearing, the Helsinki Commission received examples of individuals seeking discretionary benefits like asylum or a green card through our nation’s immigration system. For these individuals, red notice issuance resulted in consequences like detention, excessive bond amounts, and processing delays. To combat the effects of these notices, individuals must provide context on the purpose of the notice or diffusion, the existence of INTERPOL abuse as a common form of TNR, and sometimes, undergo a time-intensive process with INTERPOL’s Commission for the Control of INTERPOL’s Files (CCF) to have the red notice deleted.
To its credit, INTERPOL has acknowledged the potential use of its tools for TNR. In 2016, INTERPOL created the Notices and Diffusions Task Force. This task force is responsible for reviewing notice and diffusion requests to ensure compliance with INTERPOL’s Constitution and rules and that notices or diffusions are not of a political, military, religious, or racial character or under a prohibited category of offenses. Since 2018, the number of abusive notices canceled or refused has increased from 942 to 1,465 in 2022, and in 2021, the CCF deleted 296 as a result of requests made.
What Steps Have Been Taken to Address INTERPOL Abuse?
In recent years, Congress has taken action to perform oversight on INTERPOL abuse and TNR. As discussed above, in September 2019, the Helsinki Commission, made up of Members of Congress from both sides of the aisle and across the houses of Congress, held a hearing on the tools of TNR. Commission Chairman Representative Alcee Hastings and Ranking Member Representative Joe Wilson introduced the Transnational Repression Accountability and Prevention Act of 2019 (TRAP Act) shortly after that. Congress passed a shortened version of the TRAP Act (TRAP provisions) as a part of the FY2022 NDAA. The language requires that the U.S., through the Attorney General and Secretary of State, use its voice, vote, and influence as a member to increase INTERPOL’s screening processes and transparency. The TRAP provisions also enact reporting requirements on DOJ and DOS, including requirements to report how countries abuse INTERPOL red notices and red diffusions, how INTERPOL addresses this abuse, and a list of countries found to have engaged in abusive tactics.
Since its passage, the DOJ and DOS have issued two reports: one in August 2022 and a far less substantive update in April 2023. While the reports adhere to certain requirements included in the TRAP provisions, their language indicates that both agencies believe instances of TNR have receded since reforms made in 2016 and 2017. In the August 2022 report, the agencies also refuse to name publicly or list countries that have engaged in INTERPOL abuse out of fear of retaliation. They also voice support for the current INTERPOL structure for review of red notices and diffusions, despite the acknowledgment in the August 2022 report that all member countries are not privy to the review process or its findings.
Congress should address the refusal of the DOJ or DOS to provide certain required information included in the TRAP provisions that passed in the FY2022 NDAA. It should also address the lack of accountability of U.S. government agencies to adhere to its intention on TNR and INTERPOL abuse. Language in the original TRAP Act bill in Section 6(b) stated that no U.S. department or agency may use an INTERPOL notice, diffusion, or communication from a country with which the U.S. does not have an extradition treaty as the sole basis to detain or otherwise deprive an individual of freedom, to remove them from the country, or to deny them a visa, asylum, citizenship, immigration status, or participation in a trusted traveler program without first verifying through the U.S. NCB that the notice comports with INTERPOL’s Constitution. This language was not included in the provisions. While some agencies like Immigration and Customs Enforcement ICE have recently issued guidance on the proper use of red notices, others have not.
In October 2023, the GAO issued a report on agency actions to address the larger issue of TNR in the context of the Arms Export and Control Act. GAO includes some positive recommendations, including establishing an interagency definition of TNR and encouraging interagency cooperation to address it. However, it is primarily focused on the issue of TNR overall and only briefly touches on INTERPOL abuse. It also does not call for understanding how federal agencies consider INTERPOL notices in their review and adjudication of cases, let alone immigration-related cases.
How to Close the Gap in Oversight?
Considering the pushback from the DOS and DOJ in their TRAP reports and a general lack of oversight on how federal immigration agencies utilize INTERPOL notices to inform adjudications, Congress should fill the gap left by the TRAP provisions. One effective way would be for a member of Congress to request a GAO investigation and report across agencies like DOS, DHS, and DOJ.
The report should focus on agency use of INTERPOL notices, what training has been provided concerning INTERPOL abuse, and whether agencies are tracking the number of cases involving INTERPOL abuse. Recommendations could call for publicly issued guidance, training, and reporting requirements on the number of cases involving INTERPOL abuse. To address hesitation on publicly naming countries, GAO may recommend information be provided directly to Members of Congress.
A GAO investigation across these agencies would be an excellent start in identifying the impact of INTERPOL abuse on agency adjudications and provide Congress with the needed insight to fill in gaps from prior legislation or administrative actions.
This post was written by Paul Stern in his personal capacity. The opinions expressed are his own and do not reflect those of the American Immigration Lawyers Association.