Senators Graham, Menendez, Gardner, and Cardin have recently introduced a bipartisan bill called “Defending American Security from Kremlin Aggression Act of 2018.”  In addition to promoting the strengthening of the NATO alliance, increasing diplomatic efforts, fighting against international cybercrime, election interference and other measures, the bill addresses Russia’s abuse of INTERPOL’s resources: “It is the sense of Congress that the Government of the Russian Federation has abused and misused INTERPOL’s red notice and red diffusion mechanisms for overly political purposes and activities such as intimidating, harassing, and persecuting political opponents.”  If the bill becomes law, it will be the first US law specifically targeting Russia for its abuse of INTERPOL’s channels.

The bill calls upon the United States Attorney General and the Secretary of Homeland Security to “use the voice and influence of the United States at INTERPOL to censure and sanction” Russia for its abuse of the organization’s resources, “including the suspension of [its] ability to use INTERPOL’s red notice and red diffusion mechanisms.”  It is important to remember that the United States, like any other member country, has only one vote at the INTERPOL General Assembly.  To address Russia’s abuse of red notices and diffusions, the United States will have to convince the majority of the organization’s member countries to join its efforts.  Although the bill largely leaves it to the Attorney General and the Secretary of Homeland Security to decide on specific steps, it clearly obliges the agencies to actively seek a solution to the problem.

In addition to calling for increased efforts in the international arena, the bill contains important protections the United States would provide the victims of INTERPOL abuse: “No United States person or foreign person that is the subject of a red notice or red diffusion requested by the Government of the Russian Federation shall be denied access to any United States Government services or programs because the person is subject to such red notice or diffusion, including requesting asylum, requesting a visa, or participating in a visa waiver program or the Transportation Security Administration’s Trusted Traveler Program.”  Although a red notice or diffusion on its own should not serve as proof of any misconduct on the part of the individual and, therefore, be used to deny her or him any of the services mentioned in the bill, in practice, US officials have often mistakenly interpreted red notices and diffusions as precisely that – evidence of criminal behavior.

Reportedly, there have been cases in which United States immigration judges denied asylum-seekers bond or refugee status or both and cited red notices or diffusions as a basis for their decisions.  In such cases, immigration authorities have wrongly interpreted red notices and diffusions as evidence against asylum-seekers.  At the same time, unlike asylum cases, which are often reviewed in courts and become a matter of public record, visa denials are rarely subject to judicial review, and there is no publicly available data regarding the number of visa applications denied due to an active red notice or diffusion.  Despite the lack of comprehensive statistics, practitioners have sounded the alarm on the ever increasing number of such denials.  It is, therefore, both timely and critical for Congress to put an end to this unlawful practice and adopt a law clearly proclaiming that red notices and diffusions are not admissible as evidence against the individual in question, whether it be an extradition, asylum or any other matter.

It is also important to remember that Russia is far from being the only abuser of INTERPOL’s channels, although it is arguably among the major ones.  That is why US efforts should not be limited to specific countries.  We need to help INTERPOL prevent the abuse or, at the very least, minimize it no matter who the abuser is.  It is also important to remember that suspending the Russian government, or any other government, from issuing red notices and diffusions, as suggested in the bill, could have serious negative consequences for the security of the rest of INTERPOL’s 191 member countries.  INTERPOL’s regulations give the organization the power to suspend any country’s use of its databases if the country utilizes them for unlawful purposes.  It is not clear whether INTERPOL has ever resorted to this measure.  However, such a measure could do more harm than good by crippling legitimate international police cooperation.  If a country cannot access the INTERPOL databases, it might not be able to prevent real criminals from entering its territory and thereby escaping justice.  At the same time, if a government’s access is suspended, and it cannot put individuals on the international wanted list, other governments may not be able to identify real criminals coming from a country with suspended access and thereby unwillingly provide them shelter and the ability to continue their criminal activities in their territory.  Indeed, there are other measures that have been proposed which INTERPOL could adopt to minimize red notice and diffusion abuse without disrupting legitimate international police cooperation.