Policy Recommendations: Transnational Repression

Acts of transnational repression can be difficult to prevent. Obstacles to countering this alarming phenomenon are embedded in larger issues of authoritarian influence in democracies, as well as in refugee policies, law enforcement engagement with vulnerable communities, the export of spyware, and limits on the enforcement of sanctions.

The recommendations listed below are intended to constrain the ability of states to commit acts of transnational repression and to increase accountability for perpetrators of transnational repression. Reducing opportunities for authoritarian states to manipulate institutions within democracies will make it harder for them to target exiles and diasporas. Consistent accountability will moreover raise the cost of transnational repression for perpetrators.

Recommendations for the United States

Executive Branch

Deploy a robust strategy for the use of targeted sanctions against perpetrators of transnational repression and those facilitating such acts. Targeted sanctions against rights violators, such as denying or revoking visas for entry to the United States, or freezing US-based assets, enjoy broad bipartisan support. Existing US law allows for targeted sanctions on individuals (including both government officials and private citizens) and entities involved in a variety of crimes, including serious human rights abuses and corruption. In some cases, the family members of perpetrators are also eligible for sanction. A robust sanctions strategy that pays special attention to perpetrators of transnational repression and those who enable them would play a key role in raising the cost of transnational repression. The Biden administration should:

• Impose targeted sanctions on perpetrators and enablers of acts of transnational repression that fall within the bounds of existing law. Current law allows sanctions on perpetrators of serious human rights abuses and those who assist them, including for abuses such as assassinations and renditions, which are some of the most serious forms of transnational repression. In many cases, transnational repression operations are carried out by specific units of intelligence agencies. The individuals directing these units to act, the units themselves, and the individual members of these units should be sanctioned.
• Work with Congress to ensure robust funding for enforcement of targeted sanctions. The US Department of the Treasury, Department of State, and Department of Justice all collect information about suspected perpetrators of abuses eligible for sanction. Unfortunately, the number of potential sanctions cases to be vetted by the US government far exceeds current capacity. The US Congress has provided modest dedicated funding for sanctions enforcement, but funding for additional staff would be useful in reducing the existing backlog. The Biden administration should direct senior staff at each relevant agency to make the implementation of targeted sanctions a key priority and should ensure the president’s budget requests include the funding levels required for robust enforcement.

Ensure the United States maintains a robust refugee resettlement program to protect victims of transnational repression and others fleeing persecution. As Congress noted in the creation of the Refugee Resettlement Act of 1980, “it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” Many refugees fled political persecution in countries that engage in transnational repression, and face threats even after resettlement. Refugees who live in strong democracies where the rule of law is upheld and institutions are accountable have stronger basic protection against transnational repression than those who do not. With this in mind, the Biden administration should:

• Commit to rebuilding the country’s resettlement program back to historical levels and work with Congress to provide adequate funding for this purpose. Each year, the president and Congress work together to set an annual cap on the number of allowable refugee admissions for that year, with a high of 207,116 in 1980, a low of 22,517 in 2018, and an average annual acceptance rate of 77,561. The Biden administration should uphold the United States’ historical position on refugee admittance, which rightly seeks to protect those who need protection, by working with Congress to welcome as many refugees as possible.
• Revoke the president’s September 2019 executive order permitting states and localities to prevent resettlement.
• Ensure transparent admittance criteria that do not discriminate inappropriately, such as on the basis of race or religion.

When reviewing export licensing applications, give extra scrutiny to applications for companies exporting products to countries rated as Not Free or Partly Free by Freedom House In October of 2020, the US Department of Commerce’s Bureau of Industry and Security (BiS) updated its licensing policy to restrict the export of items if there is “a risk that the items will be used to violate or abuse human rights” (15 C.F.R. §742.7(b)). In applying this updated policy, the Biden administration should consult research by Freedom House and other credible human rights organizations to determine whether there is a risk of human rights abuse, including transnational repression, for exported items. Particular caution in granting applications should be applied for products being exported to countries rated by Freedom House as Partly Free or Not Free. Nearly all perpetrators of transnational repression are countries with these ratings.

Ensure that personnel of the US State Department and other relevant agencies, stationed both in the United States and overseas, are trained to recognize and address transnational repression. US diplomats and personnel can play a key role in protecting exiles who are targeted. Timely diplomatic intervention, whether public or private, in isolation or in coordination with other states, can be the difference between an unlawful deportation and freedom for a targeted individual. The State Department should:

• Add training on identifying transnational repression threats, and on the relevant laws that can be invoked to combat them. Like those on human trafficking and other key issues, training programs would help US officials recognize and mitigate the threat of transnational repression when they encounter them in the course of their jobs.
• Ensure that there is full and consistent reporting on transnational repression in the State Department country reports. Since 2019, US State Department Country Reports on Human Rights Practices have included a section on “Politically Motivated Reprisals against Individuals Located outside the Country.” Strengthening and making consistent this section of the reports would help create a more robust record of transnational repression and encourage greater awareness of the problem.

Combat Interpol abuse. Interpol abuse—in which governments take advantage of the lack of due process protections within the International Criminal Police Organization’s notification system to have targets spuriously detained or extradited—is a serious threat in the United States. US law enforcement agencies, including immigration enforcement, sometimes detain individuals based on notices from countries without independent judiciaries, subjecting them to extended detention without adequate cause. To combat Interpol abuse, the Biden administration should:

• Issue clear guidance establishing that Interpol notices are not equivalent to arrest warrants under US law, and may not be used as the sole basis for detention or deprivation of services in the United States.
• Apply the voice and vote of the US government within Interpol to establish due process reforms and increase transparency. The United States is by far the largest statutory contributor to Interpol’s budget, and should leverage its contributions alongside other democracies to improve the functioning of Interpol and reduce opportunities for abuse.

Release the CIA’s assessment of the killing of Jamal Khashoggi. Releasing an unclassified version of the CIA’s assessment that names perpetrators would help establish accountability for the most famous case of transnational repression in recent years.

Congress

Ensure strong targeted sanctions laws and sufficient funding for enforcement. With robust bipartisan support, Congress has played a crucial role in ensuring the successful implementation of US sanctions programs that target human rights violators. Several key steps by Congress could make existing programs even stronger, particularly with respect to accountability for perpetrators of transnational repression:

• Reauthorize the Global Magnitsky Human Rights Accountability Act (22 USC 2656 note), which allows for visa bans and asset freezes on individuals and entities engaged in human rights abuses and corruption. It will sunset on December 23, 2022 without reauthorization.
• Codify Executive Order 13818, which expands on the Global Magnitsky Act and other country-specific sanctions programs focused on human rights abuses and corruption. This would enable the United States to impose sanctions for serious human rights abuses, a term which encompasses a greater number of abuses than the more restrictive threshold of gross violations of human rights – the standard included in the Global Magnitsky Act in its original form.
• Work with relevant agencies to ensure offices dealing with sanctions are fully funded. Congressional appropriators have already been consulting with agencies on the funding levels necessary for sanctions enforcement, and Congress has provided modest dedicated funding for these activities. However, agency staff continue to report that the number of cases to be vetted for possible sanction far exceeds current capacity. Congress should support funding for additional personnel in relevant sanctions offices in order to ensure the executive branch has adequate capacity to implement sanctions policies.

Restrict security assistance for states engaging in transnational repression. Section 502B of the Foreign Assistance Act of 1961, as amended, (22 USC 2304) is intended to “promote and encourage respect for human rights and fundamental freedoms throughout the world” by making the observance of human rights a “principal goal of US foreign policy.” Current law prohibits the provision of security assistance to any government engaging “in a consistent pattern of gross violations of internationally recognized human rights” unless the president certifies to Congress that “extraordinary circumstances” warrant the provision of assistance.  This section should be updated to allow the restriction of security assistance for states consistently engaging in acts of transnational repression. This would serve the dual purpose of limiting an aggressor government’s resources for engaging in transnational repression while also sending a strong signal that the behavior is unacceptable. Congress should work with the executive branch and subject matter experts to determine whether this should be done by adding “acts of transnational repression” as a new, standalone category for which aid could be restricted, or whether the definition of gross violations of human rights, as defined in 22 USC 2304(d)(1)), should itself be updated.

Work with the Department of Justice and other relevant agencies to update transparency laws regarding individuals acting on behalf of foreign governments. A critical step in curbing transnational repression is recognizing the specific actors committing transnational abuses on behalf of their home governments. In the United States, antiquated procedures for regulation of foreign agents under the Foreign Agent Registrations Act of 1938 (22 USC 611 et seq) are a major obstacle to identifying those acting on behalf of repressive regimes. Although the Department of Justice has ramped up enforcement in recent years, the law remains outdated and does not address the realities of modern-day foreign influence activities. The absence of effective regulation in this area makes it harder than it should be to distinguish legal activity on behalf of a foreign power or entity from illegal activity, and thus to address transnational repression threats before they escalate. Congress should closely consult civil society groups to mitigate unintended consequences in any update, such as US-based organizations being required to register as foreign agents simply because they receive portions of their funding from non-US sources. When determining the types of influence activities that are or are not permissible, and the penalties for violation, it may be most appropriate to draft new laws rather than expand existing foreign agent statutes, since these statutes are intended to provide transparency about who is acting on behalf of a foreign government and are not intended to penalize malign behavior.

Work closely with the Federal Bureau of Investigation (FBI), US Department of Justice, and other relevant agencies to determine what additional authorities should be added to US criminal law to more effectively apprehend and prosecute perpetrators of transnational repression. Many types of transnational repression, notably harassment in which an aggressor located outside the United States is spying on US-based exiles without posing a physical threat, do not fall neatly within the confines of existing law. This makes it more difficult for law enforcement agents to assist victims and apprehend perpetrators. Rather than prosecuting such acts of repression directly, law enforcement and prosecutors are often forced to seek charges against perpetrators for other offenses—such as failure to disclose activities on behalf of a foreign agent, stalking, conspiracy against rights, wire fraud, or obstruction of justice—that do not include all perpetrators or crimes. Congress should:

• Examine the domestic utility of and international experience with laws criminalizing “refugee espionage.” Spying on refugees, a common tactic of transnational repression, is not directly criminalized in the United States. In a number of Nordic and Western European countries, spying on refugees is either explicitly criminalized as “refugee espionage” or clearly incorporated into general espionage provisions. In the United States, however, espionage is narrowly defined as the collection or distribution of sensitive defense information. A new statute addressing “refugee espionage” or similar activities might help law enforcement address transnational repression. Study of this issue should include any possible negative spillover effects for refugees and migrants themselves.

Combat Interpol abuse. Interpol abuse—in which governments take advantage of the lack of due process protections within the International Criminal Police Organization’s notification system to have targets spuriously detained or extradited—is a serious threat in the United States. Local law enforcement agencies, including immigration enforcement, still detain individuals based on notices, subjecting them to extended detention without cause, despite a lack of due process before Interpol shares notices with member states. To combat Interpol abuse, Congress should:

• Pass S. 2483, the Transnational Repression Accountability and Prevention (TRAP) Act, which affirms guidance concerning the limited role of Interpol notifications in the US legal system; applies the voice and vote of the US government within Interpol to establish due process reforms and increase transparency; and requires reporting from the Office of the Attorney General on Interpol abuse.

Law enforcement

Establish standardized outreach procedures for vulnerable communities, which can be customized in language for each field office or area of operation depending on the exile community to be reached. The FBI conducts proactive messaging on a variety of issues to increase community awareness of illegal activities, and encourages victims to report any unlawful activity to appropriate law enforcement authorities. Outreach on transnational repression is occurring in a number of communities already, and should be widened. State and local law enforcement should conduct similar outreach as appropriate, and federal, state, and local law enforcement agencies should continue to work jointly to investigate leads and information tips to address transnational repression in the United States. Many victims of transnational repression come from countries in which some law enforcement officials were involved in perpetrating abuses on behalf of the state. Building trust with targeted communities is critical to addressing transnational repression threats before they escalate. Communities that understand how law enforcement can protect them, and that outreach to law enforcement will not result in negative consequences for the community, are more resilient to coercion and surveillance.

Provide proactive law enforcement training on transnational repression to better assist its victims and apprehend its perpetrators. Law enforcement officers should receive instruction on transnational repression to better identify signs of it during their work. Similar to what has been done to combat human trafficking in recent years, training in transnational repression threats should be incorporated into a variety of curriculums for law enforcement officers at the federal, state and local levels.

• The FBI should offer training  at a variety of levels throughout an agent’s or analyst’s career. Initial training for new agents and analysts is already quite extensive. Rather than adding a complex topic like transnational repression to an already rigorous set of courses, training could be offered once personnel receive their job assignments and are more acclimated to their jobs. Briefings and enterprise-wide instruction on  transnational repression should be developed by personnel responsible for international human rights, counterintelligence, and cyber issues to conduct tailored victim outreach  and enable  the Bureau to address transnational repression in a comprehensive fashion.

• The FBI should also include training on transnational repression for national and international law enforcement officers receiving training at the National Academy, and for business and community leaders completing the Citizens Academy. The FBI’s National Academy offers professional training for national and international law enforcement officers in management positions. Its Citizens’ Academy, which offers trainings to community leaders in order to teach them about the FBI and its work, could be used to reach non-FBI members of the community.
• Training on transnational repression should also be offered at the Federal Law Enforcement Training Center (FLETC). Federal law enforcement officers, including personnel for the Secret Service, Department of Homeland Security and other who may encounter perpetrators or victims of transnational repression receive training at FLETC. They should receive the training necessary to enable them to identify victims and perpetrators and refer to other agencies or officials when necessary.
• Incorporate training into existing joint task forces that bring together federal, state and local law enforcement officers. In many situations, local law enforcement may be the first to hear about a threat against a diaspora community in the United States, but may not know the scope of the problem or about existing tools to address it. Providing training in identifying transnational repression threats to existing task forces that bring members of federal, state, and local law enforcement bodies together could encourage an general awareness of the threat and result in more effective responses to it.

Recommendations for other democracies

• Impose targeted sanctions on perpetrators of serious human rights violations through transnational repression. “Magnitsky Acts” provide a mechanism for travel bans and asset freezes for serious human rights violations. Imposing sanctions in particular for crimes of transnational repression would send a strong signal that perpetrators will be held accountable. Countries that possess Magnitsky laws should fully enforce them, countries that lack such legal authorities should enact them.
• Strengthen refugee resettlement programs, including by increasing quotas for accepting refugees and streamlining resettlement procedures. Allowing countries like Turkey and Thailand to become bottlenecks, where large numbers of asylum seekers are forced to wait for years for resettlement to a safe third country, encourages targeting in those countries.
• Increase outreach to communities within democracies known to be targets for transnational repression. Engagement with communities on this topic should not be a component of countering violent extremism (CVE) efforts. Although both require building community trust, the source of threat in these two areas is quite different, and authorities should distinguish between surveillance and coercion threats from foreign agents, and proselytization and recruitment threats from extremists.
• Restrict the export of censorship and surveillance technology. Given the significant potential for abuse, trade in censorship and surveillance technologies should be restricted, particularly for end users that are known to have committed human rights violations.
• Require businesses exporting dual-use technologies to report annually on the impacts of their exports. Reports should include a list of countries to which they have exported such technologies, potential human rights concerns in each of those countries, a summary of pre-export due diligence undertaken by businesses to ensure their products are not misused, any human rights violations that have occurred as a result of the use or potential use of their technologies, and any efforts undertaken to mitigate the harm done and prevent future abuses. Further, any official government export guidance should urge businesses to exercise caution and adhere to international principles on business and human rights when exporting dual-use technologies to countries rated Partly Free or Not Free by Freedom House.

Recommendations for civil society

• Invest in “digital hygiene” trainings among targeted communities, reaching beyond professional activist and journalism circles. The networked nature of digital organizing and digital communications means that penetration at one point can affect an entire community. Where the community includes refugees, digital hygiene should be integrated into refugee resettlement programs.
• Increase engagement with law enforcement institutions that may encounter transnational repression in their work. Civil society organizations should provide briefings, educational introductions, and outreach to law enforcement institutions in order to help them better understand the problem.
• Expand research into the consequences of transnational repression for targeted communities, and for host countries where they live, and disseminate findings among policymakers and targeted communities alike. Greater knowledge of the issue will encourage more effective and creative policymaking.