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Grassley Urges DOJ To Protect Americans From MLAT Abuse

By Caleb SymonsLaw360

Sen. Chuck Grassley, of Iowa, is pressing the U.S. Department of Justice to tighten its defense of American citizens who are prosecuted by foreign countries for political reasons after federal authorities said last year that many cases originating overseas do not meet their “stringent” legal standards.

In a letter last week to Attorney General Merrick Garland, Grassley said India abuses its mutual legal assistance treaty with the United States — a topic that has drawn scrutiny with New Delhi accused of trying to extradite an entrepreneur whose company won a $1.3 billion arbitral award against the Indian government.

Citing that case, which involves Devas Multimedia co-founder Ramachandran Viswanathan, the Iowa Republican argued that any Red Notice request with Interpol, which seeks a cross-border arrest, would be an “abuse of process” if the underlying charges are unjust. That is especially concerning these days, Grassley said, because a Justice Department watchdog reported last July that MLAT requests from foreign countries, such as efforts to search private communications, frequently fall short of U.S. legal standards.

“It is crucial that the Justice Department protect Americans from foreign governments seeking to abuse the MLAT and Red Notice process to undermine the rule of law and retaliate against adverse litigants in international disputes,” he told Garland.

Grassley, who serves as ranking member of the Senate Judiciary Committee, referenced a June report from the research group Freedom House that found 14 countries — including Russia — use Interpol notices to detain and extradite people whom they view as dissenting voices.

That list also includes India, which the Washington, D.C.-based organization said was the only “free” nation to engage in so-called transnational repression, when it detained citizens living abroad in 2015. Freedom House has since downgraded India to a “partly free” ranking.

Earlier this year, Indian Prime Minister Narendra Modi’s government asked Interpol to issue a Red Notice for Viswanathan, who lives in Maryland, according to his legal counsel.

That alert, which the 195-member agency says is not equivalent to an arrest warrant, requests that law enforcement detain the fugitive in question for extradition or other legal action.

But the charges against Viswanathan, alleging corporate impropriety in his work for the defunct satellite manufacturer Devas Multimedia, are “sham” claims meant to discourage a $1.3 billion breach-of-contract suit against the Indian government, his attorney said Monday.

Matthew D. McGill of Gibson Dunn & Crutcher LLP, who represents the Devas shareholders pursuing that arbitral award, said arbitrators’ findings clearly disprove India’s allegations, including that Devas lied about its technological capabilities. Instead, McGill cast the charges against Viswanathan as “an effort to whitewash the historical record” in the decadelong dispute, which is pending before the Ninth Circuit.

“It’s a weaponization of their justice system in very much the same manner that Russia had weaponized its own criminal justice system against the shareholders of Yukos [Oil Co.] and such,” he told Law360. “It’s a playbook that, unfortunately, authoritarian regimes sometimes turn to when they are frustrated with the outcomes of commercial disputes.”

The Devas shareholders have turned to U.S. courts to enforce a 2015 ruling by the International Chamber of Commerce that found India owed the company $562 million after terminating a 2005 contract under which Devas was slated to build two satellites offering digital services.

A federal court in Washington state confirmed the billion-dollar award, which includes interest, nearly two years ago, prompting India’s space agency to appeal to the Ninth Circuit. Those proceedings were still pending as of Monday.

Blasting the Indian government for trying to make Viswanathan “choose between his liberty and enforcement of the arbitral awards,” McGill accused New Delhi of shirking its pledge to respect arbitral decisions.

Indian authorities have said they asked Interpol in late February to issue a Red Notice against the Devas co-founder, according to McGill. He did not know as of Monday whether that alert had been published but said U.S. authorities initially ignored the Red Notice request.

Viswanathan has not been detained to date, according to McGill, who added, “We will do everything in our power to make sure that remains the case.”

Interpol did not include Viswanathan on a published list of Red Notice alerts as of Monday, but the France-based agency told Law360 last month that many notices are not made public.

Interpol declined to confirm that it received a Red Notice request for Viswanathan, saying the information it gets from member states belongs to that nation. Indian officials did not respond Monday to a request for more details on Viswanathan’s case.

In his recent letter, Grassley asked the attorney general to describe any systems the DOJ uses to track and report instances of abuse by other countries under MLAT and Red Notice procedures. He also asked whether the department reviews MLAT agreements periodically to ensure that they’re still in American interests if a foreign government has “abused the process.”

The Justice Department did not respond Monday to a request for that information.

Misuse of Red Notices has drawn attention from other senators, too, including from a bipartisan group that amended the latest defense budget to commission a federal report on the practice. That report is meant to include a list of countries that have repeatedly used the Red Notice process for political purposes and an account of their tactics, including the crimes the nations typically allege.

“By co-opting and undermining the rule of law to harass and intimidate dissidents and political opponents, corrupt regimes threaten our national security,” said Sen. Ben Cardin, D-Md., who co-sponsored the measure, late last year. “Our provision will make it U.S. policy to fight exploitation of INTERPOL, including by naming and shaming member states that abuse its mechanisms.”


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