TRUMPONOMICS – v- HUAWEI: EXTRADITION, TRADITION and EXILE
Introduction
Extradition and its ugly cousin, hostage-taking, have a long history, both East and West, as a by-product of what legal pundits have called ‘courtesy and goodwill between sovereigns’ i.e. rulers who have power over their subjects and their territories ( or their ‘peeps’ and their ‘hoods’ as they call it in law school these days ).
Three examples from history show the origins of the most PC family member – extradition: -
1) 1280 BCE Ramses II of Egypt and Hattusli III of the Hittites (the Wenger and Mourinho of their day) did a deal to swap prisoners, after Egypt had won a home match against invading Hittites.
2) In China ( where ,of course, ‘Build the Wall!’ was more of a thing and less of a scam) the Qing state (1644 -1911) probably was not the first to have rendition deals with its ‘tributary state’ neighbours.
3) In 1174 Henry II of England and William of Scotland did a deal to exchange fugitive offenders, which both nations have been regretting ever since.
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 (as Eddie Izzard memorably pointed out, back in the days when he was still only intentionally funny).
Whistle-blower Edward Snowden ,now resident in Russia, and property tycoon Guo Wengui who fled China in 2014 ( now resident in New York, promoting Coronavirus conspiracy theories with Steve Bannon) are just two prominent examples of modern exiles who, metaphorically speaking, went for the C of E option, rather than the Socratic choice.
Carlos Ghosn, formerly of Nissan- Renault, is the contemporary version of a slightly different archetype - the daring escapee hostage. This is an icon for fans of, e.g. Winston Churchill’s escape from captivity by the Boers, and devotees of WW2 prisoner of war classics, entailing tunnels, wooden horses, and (in the improbable imagination of Hollywood) Steve McQueen jumping motorbikes over barbed wire fences.
Nowadays on a networked globe ,with a free flow of cash, criminals, and terrorists, we do need to have a system ‘fit for purpose’ to send bad people to the right place to get punished, fairly and proportionately, whilst striking a balance between speed and justice.
The USA’s ongoing extradition case in Canada against Meng Wangzhou (aka Sabrina Meng) CFO of Huawei, and daughter of its founder, Ren Zhengfei, plus the furore over Hong Kong’s currently shelved amendment to its extradition law, suggest two things. First that, on returning favours between heads of state, ‘plus il change, plus c’est la même chose’. 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 -to use the correct legal jargon ‘ a bit of a bugger’s muddle’ in the field of extradition ( a ‘term of art’ absolutely banned from law schools today).
Before looking at the Meng case and the spat over Hong Kong’s extradition laws, let me first frame the issues with an anecdote, and some highly compressed legal history, ancient and modern.
The Anecdote
A few years back, I spent a period commuting between my main base in Dubai and the Seychelles to attend the quaint colonial style courtroom ( sadly, now decommissioned), doing battle between Russian Oligarchs over a monopoly mobile telephone license in central Asia. One of my co-counsel, Courtenay Griffiths QC had been defending former Liberian President, Charles Taylor, who was awaiting verdict from the International Criminal Court at the Hague.
At the time, the Seychelles courts were prosecuting all the Somali pirate cases. Traditionally, piracy on the High Seas was the only crime that could be prosecuted anywhere, and not just where it was committed. The international prosecution of war crimes was a later development, but not favoured by America, for its own citizens at least.
Having deplaned in the Seychelles from the Emirates ‘redeye’ I would wait for court to open, sharing a bench in the sunshine with hand-cuffed Somali prisoners, while buzz-cut, white uniformed US naval crew waited to give evidence. The conviction rate was rumoured to be in the high 100%s.
Our assigned judge also had to deal with a ragbag of local cases (with all counsel appearing, robed and horsehair wigged) before he got onto my Oligarchs. Especially memorable, was a custody hearing, where the accused was the Chief of Police from an outlying main island village who had (allegedly) been caught, with two accomplices, committing armed robberies of the shops in his own constabulary. He had also been remanded in custody, in his own police station. He evidently considered this to be quite an agreeable arrangement because he was applying in person to delay the trial. His beautiful counterpoint to the old trope, ‘justice delayed is justice denied’ was to protest, in a loud display of sincerity – ‘Your Honour, justice hurried, is justice buried!’. His application was roundly dismissed, but it was a nice try.
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 the two themes of this anecdote, i.e. 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. A key tension in this dynamic has been the collision of a bizarrely parochial British tradition of territorially limited jurisdiction and a far more expansive US approach (still informed by a quasi-fictional territorial linkage, to Uncle Sam’s dominions).
Ancient Legal History
In the USA, the idea that e.g. the courts of Twosticks, Alabama summoning somebody living in Palo Alto 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).
The old form of court proceedings in the USA had typically been an order from the court to the sheriff of the defendant’s home county to bring the defendant to court. Similarly, until the 1980s, the old ‘Writ of Summons’ in the English courts had contained a command by the Lord Chancellor on behalf of the Monarch, summoning the defendant to appear in his/her courts.
In England, it was not until 2016, that Lord Sumption in the UK Supreme Court in Abela v Baadarani, opined that the idea that State A serving its court proceedings on somebody in State B, was a coercive act by State A infringing the sovereignty of State B is now ‘no longer a realistic view of the situation’. Lord Sumption has since gone on to a distinguished career complaining about lock-downs – well done that man. Top tip, however, do not attempt DIY service of foreign proceedings in Switzerland as it is still a federal crime.
One of the weird things about lawyers is that, despite the law creating imaginary constructs (e.g. joint stock companies, nation states and trusts) lawyers very often lack either imagination or creativity. Jordan Peterson the Canadian psychiatrist and academic, turned author and You Tube phenomenon once subjected the winners of Canada’s ‘Top 100 Most Creative Lawyers’ competition to his ‘Big Five’ personality traits test. They all scored low on ‘creativity/openness’, but high on ‘conscientiousness’ and low on ‘neuroticism’, with mixed scores on ‘agreeableness’ and ‘extroversion’, the traits which complete the quintet. And yet the spells that US lawyers have cast to deem connections to the USA, 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 sat nav at will, so its current attitude reflects Thucydides’ axiom ‘The strong do what they will and the weak suffer what they must’.
As lawyers, the Brits were traditionally even more bizarre in casting special spells to get out of fake problems that they had invented for themselves in the first place. The wonderfully obscure doctrine of ‘Colonial Extraterritorial Legislative Incompetence’ was invented by the UK Foreign Office at the height of British imperial power, specified that no British Colony or Dependency could make laws that operated beyond their own territory. The doctrine left such eccentric Commonwealth legal artefacts, as the crime of returning to e.g. New South Wales, after committing bigamy abroad. The maximum penalty was (presumably) two mothers-in-law.
Britain itself, however, had an overseas jurisdiction statute enabling it to export its own laws globally wherever it considered those laws had come to be applicable by treaty, custom usage, or other lawful means (i.e. lawyerspeak for invading places with guns and giving them their own flags).
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’ i.e. warships, were deemed by legal fiction to be situate in the parish of Stepney (where the Royal Naval Docks on the Thames were formerly located – obvious really).
Bear in mind that a very similar legal fiction kept Julian Assange safe in South Kensington for a good while, because he was deemed to be situate in Ecuador. Now he is (according to his friend Yanis Varoufakis) in the legal reality of solitary confinement at Belmarsh Prison in Woolwich, South London.
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 USA , 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 USA’s geography or ecosystem, and Uncle Sam might not even have what US lawyers like to call a ‘colorable 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 USA.
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.
The latest entrants to this modern crime proceeds scene have been, first, funding terrorism in the wake of 9/11 and then (following bankers bankrupting states in 2008/2009) unpaid taxes can increasingly be packaged as a crime proceed. I was trained in an innocent age when it was a principle of English ‘private international law’ (i.e. the rules that English laws contain as to when our courts will or will not enforce the laws of other nations) that neither the penal nor revenue laws of other states should be enforced by English law. Dodging other countries’ taxes, was generally fair game, but in the post- Panama Papers world, this aint necessarily so.
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 USA, because the Brits have to show ‘Probable Cause’ to get an extradition from the USA, 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, -e.g. about why ‘Tax Avoidance’ may be OK, 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 USA emerges from the rather extravagant views that Uncle Sam has about what facts constitute a crime being committed in the USA.
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 USA can be said to be committing crimes within the USA, 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 Meng Dynasty meets ‘Trumpanomics’
The story that is unfolding in continuing proceedings in Vancouver about the arrest and detention of Meng Wangzhou and the USA’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, Ms 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 Ms 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 USA’s case theory is that Ms Meng duped HSBC exposing it to potential financial loss, and such alleged deception of HSBC, could count as criminal, had it happened in Canada. The Defence team are now relying on what they was a misleading presentation of the evidence by the USA in the ‘Record of Case’ on which the request to extradite is based, including misrepresenting that HSBC were duped by the PowerPoint which Meng presented to HSBC, which in fact identified that Huawei had an affiliate Skycom, and that both had business in Iran. 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 USA 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 e.g. of the sort 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 Ms 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.
The US and the UK already have ‘form’ when it comes to using PII as a pretext to hide their collaborative skulduggery. Leading Human Rights QC, Dinah Rose and her journalist brother, David collaborated rather more nobly to expose the UK and US ‘double-act’ in the extraordinary rendition and torture of Guantanamo Bay detainee, Binyam Mohammed. David Rose’s Vanity Fair articles ‘Tortured Reasoning’ and ‘You Judge’ (which touch on both his sister’s role representing Binyam, and Jonathan Sumption QC’s defence of the UK government in that particular lockdown) make troubling reading. 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.
The Hong Kong to PRC Extradition Furore
In brief, it is possible that just two intelligent ‘tweaks’ might have spared the proposed revision of Hong Kong’s Extradition arrangements becoming such a cause célèbre. First, it enabled further changes to be brought in, effectively by the executive branch of government, bypassing the Hong Kong Legislature. Secondly it could easily have provided that the Hong Kong Courts could prosecute the offence themselves, without the necessity of rendition to the mainland, where there are concerns about judicial independence that are largely absent from Hong Kong.
It is notable, however, that there is a kneejerk conviction in western media, that Canadian detentions in China since the Meng case are purely retaliatory hostage taking. Be that as it may, the notion that Meng’s detention is equally hostage taking at Trump’s behest is perhaps not quite so automatic, but the Canadians (who are stereotypically seen as being so nice that they actually wave at passing trains) do appear to maintain confidence that their courts will do the right thing and that the rule of law remains in good health there, despite the motto that ‘ The Mounties always get their (wo)man’.
Epilogue?
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 whilst 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.