UK Reconsidering Prosecution of British-born UK Militants who Beheaded Americans
November 7, 2019 by Alexandra Haris Leave a Comment
On October 25, the UK government disclosed that it was reconsidering its decision not to prosecute a pair of Islamic State ("ISIS") members. The decision came after the U.S. military took custody of the two men, Alexanda Kotey and El Shafee Elsheikh, three weeks ago.
Previously, the Crown Prosecution Service (CPS), an independent public authority in England and Wales, decided not to prosecute the men and the UK had been accused of making this decision to prevent setting a precedent for mass jihadist repatriations. However, it appears as if the government has had a change of heart "Due to a change in circumstances the CPS are reviewing the evidence in accordance with the Code for Crown Prosecutors."
The two men, also known as "The Beatles," were stripped of their British citizenship due to their affiliation with ISIS. In fact, they were part of an ISIS cell that had suspected involvement in the murders of American and British hostages in Syria, notably the beheading of Americans James Foley, Steven Sotloff, and Peter Kassig. In early 2018, Kurdish-led Syrian Democratic Forces captured and detained the men, making their transfer to the British judicial system difficult.
However, a major development occurred three weeks ago when Kurdish allies handed the men over to a U.S. detention center in Iraq, removing an obstacle for British prosecution.
It is interesting to note that this reconsideration comes as the High Court in London announced it postponed a hearing that was originally scheduled for Tuesday, October 29. The hearing was on a case from Elsheikh's mother, Maria Elgizouli, who wants the court to rule that her son should be tried in the UK instead of the U.S., where the death penalty could no longer apply.
Earlier this month, the plan was to transfer the two men to the United States where they would be put on trial. This move was approved by President Trump who discussed it with British Prime Minister Boris Johnson. In fact, U.S. prosecutors were preparing to bring the case against the two men and were hopeful that they could acquire evidence from UK prosecutors. This evidence included voice analysis tied to the two men and details about how they got to Syria.
In spite of the U.S.'s hopes, Elgizouli sued the government in order to force a trial in Britain, hence guaranteeing that the death penalty was no longer a possibility.
Regarding the families of the slain Americans, they do not care where the men are prosecuted—they just want justice. Diane Foley, mother of James Foley, said, "I am certainly okay with them going to the United Kingdom, they are citizens…I want to make sure that all their crimes can be assessed and can be prosecuted fully."
Misleading Evidence
When the initial decision not to prosecute the men was made, British government officials claimed that prosecutors did not have enough evidence to try the militants in the UK courts. However, in June, Elgizouli's court case revealed that prosecutors had secretly issued an arrest warrant for Kotey in 2016 for five charges of murder and eight charges of hostage-taking. The prosecutors also admitted to Elgizouli that they had enough evidence to charge her son with membership to ISIS.
It is alleged that the Home Office publicly claimed there was no evidence to bring them home to face justice because the then-Home Secretary, Theresa May, felt it was politically problematic. As a result, UK ministers continually insisted the best chance of prosecution was to send the men to the U.S., where he was expected to be tried in Virginia.
Now that the British government believes there is substantial evidence, the situation is beginning to shift. Within the next few weeks, the Supreme Court is expected to rule on the issue of sharing evidence gathered by the British with American prosecutors.
Filed Under: counterterrorism enforcement
FATF Issues Best Practices Report on Beneficial Ownership
October 28, 2019 by Bruce Zagaris Leave a Comment
On October 24, 2019, the Financial Action Task Force (FATF) issued a best practice paper, seeking to provide suggested solutions, supported by cases and examples of best practices for beneficial ownership from delegations. The paper responded to challenges faced by delegations in implementing FATF Recommendation. The results of FATF Mutual Evaluation Reports (MERs) indicate that jurisdictions find it challenging to achieve a satisfactory level of transparency regarding the beneficial ownership (BO) of legal persons.
At present FATF is conducting the fourth round of mutual evaluations of the implementation of the FATF standards on anti-money laundering (AML). FATF mutual evaluations show that jurisdictions using a single approach is less effective in making sure that competent authority can obtain accurate and up-to-date BO information to in a timely manner. Instead, a multi-pronged approach using several sources of information is often more effective in preventing the misuse of legal persons for criminal purposes and implementing measures that make the beneficial ownership of legal persons sufficiently transparent. The variety and availability of sources increases transparency and access to information, and helps mitigate accuracy problems with particular sources.
FATF R.24 requires countries take measures to prevent the misuse of legal persons for ML/TF. Countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities.
Through a multi-pronged approach, competent authorities can obtain access to information on beneficial ownership through different sources. They can also ensure the accuracy of information by cross-checking. Key stakeholders, (including companies, directors, shareholders, obliged parties such as FIs and DNFBPs), can more easily identify incorrect beneficial ownership information in their database by reviewing different registers or requesting information from different sources. This will then trigger the obliged party to seek clarifications from the companies, and if necessary, report suspicious activities to competent authorities. Therefore, this approach encourages key stakeholders to fulfil their obligations through peer interaction and supervision.
As stated in Interpretative Note to R.24, countries should use one or more of mechanisms
the Registry Approach, which calls for company registries to obtain and update BO information;
the Company Approach, which requires companies to obtain and hold updated data on their shareholders; and
the Existing Information Approach, which uses existing data sources, such as tax authorities, financial institutions and Designated Non-Financial Business or Professionals (DNFBPs), information held by other competent authorities on the legal and BO of
companies, and available information on companies listed on a stock exchange, where
disclosure requirements ensure adequate transparency of beneficial
ownership.
The FATF best practices papers calls on stakeholders to ensure that information on the beneficial ownership of a company is obtained by that company and available at a specified location in their country; or can be otherwise determined in a timely manner by a competent authority.
The FATF has identified some specific obstacles in the following areas to effective implementation , including: a) risk assessment; b) adequacy, accuracy and timeliness of information on beneficial ownership; c) access by competent authorities; d) bearer shares and nominee shareholder arrangements; e) fines and sanctions; and f) international co-operation.
The FATF paper on best practices in obtaining, maintaining and using beneficial ownership will help jurisdictions whose regime falls below the FATF standards, as enumerated in the MERs, take action to upgrade the quality of their implementation practices.
The current issue of the IELR will have an article discussing in more detail the FATF report.
Filed Under: Corruption, counterterrorism enforcement, cybercrime and cryptocurrency, Economic Sanctions, entity transparency, International Cooperation, international regimes, international tax regime, Money Laundering & Bank Secrecy
U.S. and Australia Start Negotiations over CLOUD Act Agreement and Host Roundtable on Trusted Technology Ecosystems
October 8, 2019 by Bruce Zagaris Leave a Comment
On October 7, 2019, the United States and Australia announced they have entered into formal negotiations for a bilateral agreement under the U.S. Clarifying Lawful Overseas Use of Data Act (the CLOUD Act). The two governments also hosted a roundtable on trusted technology ecosystems.
Negotiations of a CLOUD Act Agreement
United States Attorney General William Barr and Australian Minister for Home Affairs, Peter Dutton, announced the negotiations during a meeting.
Supported by Australian legislation yet to be introduced, a bilateral CLOUD Act agreement would enable Australian law enforcement to serve domestic orders for communications data needed to combat serious crime directly on U.S.-based companies, and vice versa.
On October 3, 2019, the United States and United Kingdom concluded the first ever CLOUD Act Agreement. It will permit U.S. and British law enforcement agencies, with appropriate authorization, to demand electronic data concerning serious crime, including terrorism, child sexual abuse, and cybercrime, directly from tech companies based in the other country, without legal barriers.
The announcement of U.S.-Australian negotiations of a CLOUD Act Agreement provides additional momentum to the U.S. government efforts of having an expedited process for directly obtaining access to electronic evidence from the platform providers.
Roundtable on Trusted Technology Ecosystems
Also on October 7, Attorney General William P. Barr and Australian Minister for Home Affairs Peter Dutton hosted a government-industry roundtable discussion titled, "Shaping a Trusted Technology Ecosystem," with more than a dozen representatives from the tech-industry landscape.
A Department of Justice press release characterized the dialogue as a critical step in jointly addressing complex supply chain challenges faced by both nations. The collaborative discussion presented an opportunity for industry, Australia and the United States to work together on solutions to ensure an open marketplace, achieve a diverse range of secure technology options, and enhance global technology markets characterized by trust, transparency, and fair competition. One issue is whether to try to prevent Huawei from developing for the Western countries and the world in general the 5G network. The U.S. does not trust Huawei from a national security perspective because it believes that the Chinese government will control Huawei's practices and enable the Chinese government to obtain surveillance periodically. Until now, Australia has cooperated with the U.S. on the initiative to block Huawei even though Australia is increasingly subject to Chinese economic and foreign policy pressure due to China's growing role in Australia and the region. The issue of trusted technology ecosystems also concerns the Internet and data privacy.
Filed Under: childpornography, Counterterrorism & International Human Rights, counterterrorism enforcement, cybercrime, Data Privacy, Economic Sanctions, extraterritorial jurisdiction, Foreign Intelligence and Surveillance, Human Rights, international evidence gathering, national security, Sanctions, Transnat'l Organized Crime, Cybercrime, Narcotics, Transparency and governance Tagged With: China
U.S. and U.K. Sign Cross-Border Data Access Agreement for Cross-Border Enforcement and Warn Facebook on Proposed Encryption
On October 3, 2019, the United States and United Kingdom concluded the first ever CLOUD Act Agreement. It will permit U.S. and British law enforcement agencies, with appropriate authorization, to demand electronic data concerning serious crime, including terrorism, child sexual abuse, and cybercrime, directly from tech companies based in the other country, without legal barriers. Simultaneously, both governments and Australia's Minister for Home Affairs published an open letter to Facebook, asking it to stop plans to implement end-to-end encryption across its messaging services
The CLOUD Act Agreement
The agreement will broadly remove restrictions for a wide category of investigations, not targeting residents of the other country, and assure providers that disclosures through the Agreement are compatible with data protection laws. Each signatory commits to obtain permission from the other before using data gained through the agreement in prosecutions concerning a Party's essential interest – specifically, death penalty prosecutions by the U.S. and U.K. cases implicating freedom of speech.
The agreement will accelerate investigations by removing legal barriers to timely and effective collection of electronic evidence. The Agreement allows law enforcement, when armed with appropriate court authorization, to directly compel tech companies based in the other country to give access to their electronic data, rather than going through governments, which can take many months and even years.
The agreement will accelerate dozens of complete investigations into suspected terrorists and pedophiles.
The U.S. will have reciprocal access, under a U.S. court order, to data from U.K. communication service providers. All requests for access to data will be subject to independent judicial authorization or oversight.
In March 2018, Congress passed the CLOUD Act, authorizing the U.S. to conclude bilateral executive agreements with rights-respecting partners that remove each party's legal barriers to the other party's access to electronic data for certain criminal investigations. The enactment in the U.K. of the Crime (Overseas Production Orders) Act 2019, which received Royal Assent in February of this year, authorized the U.K. to conclude the agreement
U.K. and U.S. Ask Facebook to Stop Plans to Encrypt Messaging Services
The U.K. Home Secretary Priti Patel, U.S. Attorney General William P. Barr, Acting U.S. Homeland Security Secretary Kevin McAleenan, and Australia's Minister for Home Affairs Peter Dutton sent an open letter to Facebook, expressing serious concerns with Facebook's plans to implement end-to-end encryption across its messaging services.
The letter asks Facebook to stop the proposals, unless the company can give assurances that no reduction will occur in Facebook's ability to keep its users safe and enable law enforcement access to content in exceptional circumstances in order to protect the public.
The U.K.-U.S. CLOUD Act Agreement opens the door for the U.S. and the European Union to conclude a CLOUD Act Agreement. The two parties are currently negotiating such an agreement.
The current issue of the IELR will have more information on the U.S.-UK Agreement and the open letter to Facebook.
Filed Under: Administrative Penal Law, childpornography, counterterrorism enforcement, cybercrime and cryptocurrency, Data Privacy, international evidence gathering, national security, Transnat'l Corruption, Money Laundering & Asset Forfeiture, Transnat'l Organized Crime, Cybercrime, Narcotics