January 20, 2010
Author: Dave Kopel
Over the past few weeks, there has been a lot of concern in some quarters about President Obama’s Executive Order extending certain legal immunities to the International Criminal Police Organization, or Interpol. These concerns are misplaced.
Interpol has no authority to make arrests or seize property. Interpol is purely an organization for data exchange and analysis. Interpol employees in the United States (or anywhere else) have no authority to conduct any activities except as allowed by the host government. The Obama Executive Order adds nothing to Interpol’s non-existent law enforcement authority.
Interpol’s entire US presence consists of a five-person office in New York City for liaison with the United Nations. Under the Obama order, the premises and documents of this NYC office are absolutely immune from search and seizure. Pursuant to the International Organizations Immunities Act, passed by Congress at the time the United Nations was being set up, seventy other international organizations in the US have immunities identical to those now possessed by Interpol. The presence of the UN was obviously going to lead to the establishment of US offices for many international organizations, and Congress wanted to regularize the procedures and immunities for such organizations.
Interpol requested the full set of IOIA immunities in 2005. In 2008, the US State Department approved the request, but the White House did not get around to signing the Executive Order. It obviously was not a priority for anyone, nor should such a minor issue have been a priority.
So why did President Reagan, in 1983, grant Interpol some but not all of the available immunities? Some explanation of Interpol’s structure will help here. Interpol is headquartered in Lyon, France. Today it has over 600 employees, consisting of permanent staff, as well as employees from many different national law enforcement organizations who are “seconded” (loaned) to Interpol for a few years. Every one of the 188 nations which participates in Interpol has a “National Central Bureau” (NCB) which coordinates interaction with Interpol. The NCB offices are located in the home country, and they are staffed by employees of the home country, not by Interpol employees. The United States has the largest NCB, consisting of approximately 80 employees in Washington, D.C., plus an auxiliary NCB in San Juan. The NCB is responsible for transmitting the data which the US chooses to provide to Interpol, and thereby make accessible to the NCBs of other countries. Such data include the identification numbers of lost or stolen US passports, fingerprints or DNA for some criminals, and so on.
The NCB in the United States is not an international organization. It is a part of the US Department of Justice, and is subject to precisely the same laws as any other part of the Department of Justice. The NCB staff interacts with Interpol, but they are employees of the federal government, not of Interpol. Neither the Reagan nor the Obama Executive Orders apply to the NCB offices, nor could they.
As of 1983, Interpol had no staff or offices in the United States. However, a 1981 D.C. Circuit decision, Steinberg v. International Criminal Police Organization, held that Interpol could be sued in federal courts, because Interpol’s interaction with the US NCB created sufficient US contacts for a US court to assert jurisdiction.
Now vulnerable to US lawsuits, Interpol asked the Reagan administration to grant it IOIA protection. The Reagan administration at the time was beginning to vastly amplify the US relationship with Interpol. The consequences, over the long term, were a substantial increase in US contributions to Interpol, the US displacing France as the most influential nation within Interpol, and Interpol taking a major interest in counter-terrorism. Given the Reagan determination to work more with Interpol, it is not surprising that the administration granted Interpol’s request for IOIA immunity from civil lawsuits. At the advice of the Department of Justice, the Reagan Executive Order did not grant complete IOIA immunities, because they were unnecessary. Interpol had no office in the US, and therefore had no need for IOIA’s protections of international organization property and files.
The Obama Order simply recognizes changed circumstances; now that Interpol has a small US office, it is appropriate that Interpol have the standard immunities for international organization offices.
I believe that the Reagan-granted civil lawsuit immunity should be partially rescinded, and, if necessary, Congress should revise the IOIA to allow for grants of only partial immunity from civil suits. Interpol is a much more competent organization than it was in 1975, when it allegedly defamed Steinberg. Nevertheless, Interpol does sometimes disseminate potential defamatory information without sufficient caution.
However, the big topic of concern in the past several weeks has not been “Interpol can get away with defamation!!!!” The defamation immunity problem has existed for 27 years. The current concerns about the Obama Executive Order are about the dangers of unaccountable international police operating in the United States. These concerns are without merit.
Interpol staff do not even carry guns, and they certainly do not engage in policing in the United States.