By Tim Taylor, Special to The Nation
Exile was the flipside of rendition. Socrates, given the choice “exile or hemlock”’ went for hemlock. A puzzling choice for today’s Church of Englanders who, offered the choice between “Cake or Death?” reliably opt for the former.
Whistle-blower Edward Snowden, now resident in Russia, is one prominent example of modern exiles who, metaphorically speaking, went for the C of E option, rather than the Socratic choice.
The US’s ongoing extradition case in Canada against Huawei CFO Meng Wangzhou (aka Sabrina Meng) suggests two things. First that, on returning favours between heads of state, the more things change, the more they stay the same, as the French say. Secondly that conflicting ideas about “what is a sufficient nexus between alleged crimes and the place where they are to be prosecuted?” and “how much does the quality of justice depend on where it is handed down?”, have produced a legal muddle in the field of extradition.
On top of the vestiges of “hostage trades” between heads of state, that will be seen in our case study of the Meng case, the evolving laws of extradition remain shot through with two themes: First, the lingering tradition of crimes normally only being prosecutable in the territory where they are committed (piracy and war crimes being exceptions) and, secondly, finding the right balance between expedition and fairness.
Ancient legal history
In the US, the idea that the courts of, say, Twosticks, Alabama summoning a Palo Alto resident to show up in Alabama, infringed California’s sovereignty, was essentially snuffed out by the US Supreme Court in 1945 in the International Shoe case. This case stands for the principle that, if the defendant had had relevant dealings engaging the territory or laws of the summoning court, those “minimum contacts” were good enough to found jurisdiction, in the courts of Twosticks (for the purposes of our example).
And yet the spells that US lawyers have cast to deem connections to the US, using more or less imaginary territorial connections, include using US payment systems for monetary transactions wherever you may be, having a “dot com” as opposed to a “dot wherever”, and flying over US airspace. After all Uncle Sam can turn off your satnav at will, so its current attitude reflects Thucydides’ axiom – “The strong do what they will and the weak suffer what they must.”
My particular favourite legal fiction, allied to this idea that all jurisdiction is territorial, was that it was unnecessary to seek the permission usually required from the English High Court to serve its proceedings abroad, if the defendant was aboard a British naval vessel anywhere in the world. All British Men O’ War (warships), were deemed by legal fiction to be situated in the parish of Stepney (where the Royal Naval Docks on the Thames were formerly located – obvious really).
Similarly Huawei’s Meng Wangzhou is presently confined to her home in Vancouver, on the theory that a PowerPoint presentation by her in a restaurant in Hong Kong caused HSBC to commit a crime in the US, by wiring money through the US clearing system for the supply of goods to Iran. If the HSBC back office person (who may even have been in India at the time) had “left-clicked” to use Hong Kong’s own clearing system instead, these electronic greenbacks would never have even notionally passed through the good old US’s geography or ecosystem, and Uncle Sam might not even have what US lawyers like to call a “colourable claim” that a crime had been committed – a counterintuitive expression for a claim you can articulate without actually blushing.
Before we get to the Meng, case, however, we need to take a quick look at some common themes in the modernisation of UK and Canadian extradition laws that bear on an assessment of whether the US may get its way in achieving the rendition of Meng to the United States.
The modern legal history
Canada in 1999 and the UK in 2003, for broadly similar reasons, modernised their extradition legislation with a view to making it fit for purpose for modern crime, where it is not so much about people fleeing, as money doing so.
Modern proceeds of crime, legislation essentially began with the 1971 Vienna Convention on Psychotropic Substances, which came up with the bright idea (possibly they were smoking and discussing such substances simultaneously) that the right response to the “victimless crime” of drug trafficking was to seize the profits. This idea was flawed for at least two reasons: first, it impedes criminals’ ambition to make and keep enough money through crime so that their children can “go straight”. The Crown Estates are, after all, an international crime proceed dating to 1066, laundered by the passage of time. The second flaw, is “why stop at drugs? What about financial crime?” Only redressing the second of those two flaws has found favour with the wider legal and political community and hence the ability of states to forfeit the fruits of criminal activity is now more or less ubiquitous and all embracing.
Apart from the EU dimension and the advent of the European Arrest Warrant for the UK, Canada’s modernisation of its extradition laws in 1999 and the UK’s in 2003 (both intended, in part at least, to meet the needs of the new international crime proceeds era) followed similar lines.
In broad terms, four features are especially important:
1. To justify extradition, the offence needs to be one which was a crime where it was committed and would have been a crime if it had been committed in the state asked to extradite. This is called the “double criminality test” (which did not apply for the European Arrest Warrant).
2. The requesting state must demonstrate that is has evidence which would justify a matter being sent to trial, if the conduct had occurred in the state required to extradite.
3. The requesting state must make a fair presentation of the evidence that would justify a criminal trial, but does not have to disclose all its evidence, or even exculpatory evidence, in the way that the prosecuting authorities typically would be obligated to do in a domestic prosecution.
4. If the requesting state has abused the process of the courts of the requested state, the request can get kicked out.
The way that the UK -US extradition arrangements worked following the UK’s modernisation attracted a lot of flak as being “lop-sided” in favour of the US, because the Brits have to show “Probable Cause” to get an extradition from the US, but the Yanks only have to show a “Reasonable Suspicion” to get you all cuffed up and wearing an orange boiler suit. The majority view amongst extradition lawyers today (and following official inquiries into the question of asymmetry) seems to be that, in practice, this is a distinction without a difference.
I suspect, however, that ordinary punters who struggle with lawyers’ “Humpty Dumpty” linguistic distinctions – eg, about why “tax avoidance” may be okay, but “tax evasion”, not so much – instinctively feel that “the accused was seen leaving the deceased’s room” may ground a “reasonable suspicion” whereas it might take “the accused was seen leaving the deceased’s room carrying a gun” to rise to the level of “probable cause”.
Perhaps the more powerful concern on lop-sidedness in favour of the US emerges from the rather extravagant views that Uncle Sam has about what facts constitute a crime being committed in the United States.
The ongoing case in British Columbia of USA v Meng Wangzhou provides ample scope to illustrate not only the extravagant reach of US theories about how people outside the US can be said to be committing crimes within the US, but also how the primal theme of extradition as a favour between sovereigns can produce “abuse of process” grounds as a ‘fig leaf’ for judges to deny extradition, without having to risk embarrassment in international relations by calling out extradition requests as political.
The story that is unfolding in continuing proceedings in Vancouver about the arrest and detention of Meng Wangzhou and the US’s case against her, includes the following ‘eyebrow raising’ features, according to the arguments being rolled out by her Defence team.
1. Despite there being a judicial warrant for her immediate arrest, which both the Canadian border officials and the RCMP (the “Mounties”) were empowered and bound to execute, the Mounties stood by whilst the Border guys feigned a regular immigration side check, in which they managed to relieve, Meng of her laptop and phones, including getting her to write down the passwords. They put these in protective bags to stop them being wiped remotely. All of this was done without “immediately arresting” and reading Meng her rights as required. The Border agents also handed her devices and passwords over to the Mounties “by mistake”.
2. Meng lost a preliminary hearing to strike down the extradition as entailing no “double criminality”. It would not be a crime to trade with Iran from Canada (or Hong Kong) per se. But the US’s case theory is that Meng duped HSBC exposing it to potential financial loss, and such alleged deception of HSBC, could count as criminal, had it happened in Canada. Bear in mind that none of the actors were US citizens or entities, and the presentation had been in a restaurant in Hong Kong. But HSBC had a powerful incentive to co-operate with the US by claiming Huawei had misled them, as the bank was still subject to a US Deferred Prosecution Agreement (DPA) relating to allegations that it had laundered drug monies. If HSBC had knowingly infringed US sanctions by using the US clearing system, instead of Hong Kong’s own CHATs system, it could have been accused of breaching DPA conditions, potentially making the money laundering charges “live” once more.
3. Canada’s extradition legislation has the usual carve-out to protect against alleged political crimes, of the sort for example that would ground an asylum claim under international refugee conventions. The way the US and Canadian authorities collaborated, may have just been a coincidence (like Justin Trudeau and his brother both having been born on Christmas Day) but Meng’s disclosure requests to interrogate their dealings yielded a few documents full of redactions for claimed Public Interest Immunity (PII) and Legal Privilege, which the judge has largely refused to have unredacted.
Having encountered the mafia instincts of politicians and the executive branch of government, acting both for and against government interests of various nations around the world over the years, I have learned that an independent judiciary and robust rule of law is essential to prevent laws being wielded by governments to perpetrate injustices.
Standing back from the detail of the Meng case, it is important to bear in mind that the standard of review by the requested court is intended to be a fairly “low resolution” assessment of whether the material presented by the requesting state reaches a prima facie standard sufficient for charges to be sent to trial. The requested court should not conduct a mini trial of the charges the putative deportee will face abroad. The Canadian and other courts will, however, be vigilant if there is a concrete concern that either an individual’s due process rights, or the courts own processes are being abused. On the face of it, there would seem to be some reasonably rich materials for the Canadian judge to throw out the Meng request on abuse of process grounds, without having to “call a spade a bloody shovel” , by condemning the request as politically motivated.
If and when President Trump leaves the White House, it is plausible to imagine that the line for the “End of Regime Pardon Sale” will stretch a long way down Pennsylvania Avenue, and that those pardons will be flying out of the Oval Office quicker than indulgences from a Borgia-occupied Vatican. Having himself described Meng Wangzhou as “the Ivanka Trump of China”, we shall see whether he spares Canada’s courts their task, in the hope of putting his relationship with President Xi back to the good old days of sharing delicious chocolate cake while “cruising Syrians” from Mar a Largo. I should hastily clarify (to avoid this concluding remark from being mistaken as libellous by Rudy Giuliani) that the verb “cruising” in this context refers to the launch of missiles and not to a method of making new friends in nightclubs.
Tim Taylor QC specialises in international commercial and investment arbitration at King & Wood Mallesons, a law firm that has represented Huawei.