NAVIGATING INVESTIGATIONS OVERSEAS: RESOURCES, PROCEDURES, AND BEST PRACTICES As the reach of businesses expands across the globe, so does the occurrence of fraud in overseas arenas that straddles borders of various countries. The path to follow when conducting an investigation overseas can be daunting, and the resources available to both businesses and government entities are not widely known. This session will map a pathway to assist you with conducting investigations overseas. By examining available private and government resources and the limitations encompassing each, learning procedures and protocols for engaging with foreign police overseas, and understanding legal aspects governing foreign investigations, you will be able to navigate the often confusing landscape of overseas investigations. You will learn how to: Recognize the mission of U.S. law enforcement overseas, the assistance they can provide, and their limitations. Identify resources available when conducting an investigation overseas. Navigate foreign police protocols and how to contact the appropriate foreign police office when engaging in an investigation abroad. Recognize laws and legal processes and differing ways to proceed with criminal charges against U.S. citizens and non-u.s. citizens living abroad. LISELI PENNINGS Special Agent U.S. Department of Treasury Austin, TX Liseli Pennings recently joined the U.S. Treasury Inspector General s Office for Tax Administration as a special agent and was previously a career special agent with the State Department s Diplomatic Security Service. She is a subject matter expert in international investigations and physical security, and was a law enforcement attaché in both Europe and Latin America. Pennings was awarded seven of the U.S. Department of State s Meritorious Honor Awards, a Superior Honor Award, and four letters of commendation. Association of Certified Fraud Examiners, Certified Fraud Examiner, CFE, ACFE, and the ACFE Logo are trademarks owned by the Association of Certified Fraud Examiners, Inc. The contents of this paper may not be transmitted, re-published, modified, reproduced, distributed, copied, or sold without the prior consent of the author. 2015
Navigating Investigations Overseas Conducting an investigation in a foreign environment can be a daunting task for both government and private entities. Understanding how an embassy and consulate work and gaining insight to their mission can help illuminate where to begin. Understanding the Mission of a U.S. Embassy Overseas As It Relates to the Protection of U.S. Interests A U.S. Embassy exists in most foreign countries with which the United States shares diplomatic relations. Usually located in the capital city of the host nation, the Embassy s function is to promote and advance foreign policy and diplomacy and protect U.S. citizens and U.S. interests overseas. Ambassador As the highest-ranking recognized diplomat representing the United States, most Ambassadors reside within the host country. On a few occasions when full diplomatic relations are not recognized by a country, an Ambassador can reside out of country. An Ambassador overseas the inner-workings of an Embassy; however, the main focus is on engaging with high-level host-country personnel, such as the host country s Head of State and Minister, and being the voice of the diplomatic mission. Deputy Chief of Mission (DCM) The DCM has oversight of the overall day-to-day operations within an Embassy and is also engaged in outside liaison to promote U.S. foreign policy. Regional Security Officer (RSO) The Regional Security Officer (RSO) or Law Enforcement Attaché is the advisor on all security 2015 1
matters to the U.S. Ambassador and the liaison between the U.S. and host country police on all law-enforcement matters. The RSO Office is also tasked with the physical security of the compound, protecting U.S. interests in the host nation, conducting investigations, providing or exchanging training with the host nation, and promoting the strategies of the U.S. overseas. Other Law Enforcement Agencies in an Embassy Other law enforcement agencies overseas exist within an Embassy, the exact presence of which is determined by the need for specialties and patterns in the country or region (e.g., DEA in regions where drug tracking is pronounced, the U.S. Secret Service in areas where counterfeiting of money is rampant). Some examples of U.S. Law Enforcement agencies routinely located at Embassies include but are not limited to the Federal Bureau of Investigation (FBI), Homeland Security Investigations (HIS), Drug Enforcement Agency (DEA), U.S. Secret Service (USSS), and the Naval Criminal Investigative Service (NCIS). Many of these agencies have overlapping missions and each provides a unique set of expertise and skills that together create a large law enforcement and security entity. Other Embassy Sections Outside of the law-enforcement cadre exist sections of an Embassy with unique sets of specialization. The Management Section focuses on the administrative issues within an Embassy such as human resources, housing, building and facility maintenance, and the many administrative aspects required to making an Embassy and Consulate operate. Other sections include the Political Section, Economics Section, Defense Attaché Section, Public Affairs Section, Foreign Commercial Service Section, Foreign Agricultural 2015 2
Service Section, and sometimes a Medical Unit and Embassy Post Office. Each play an integral role in ensuring the Embassy or Consulate operates in any given environment, climate, or within varying security postures. U.S. Consulates U.S. Consulates provide services to U.S. citizens overseas and are where host-country nationals and foreigners can apply for U.S. visas. Consulates can be housed within an Embassy, usually in the capital city of a host country. Some foreign countries have several U.S. Consulates housed throughout the country, usually located in regions within a country where the presence of U.S. citizens is highest. Aside from issuing U.S. passports and visas, Consulates serve as an assistance repository for all U.S. citizens residing and traveling overseas. The U.S. Department of State recommends that U.S. citizens traveling or residing overseas register with the U.S. consulate closest to them. The registration is done online and assists U.S. Consulates in keeping track of the number of U.S. citizens in the host country as well as their contact information in order to notify and provide them assistance in the event of an emergency. The Consulate also uses this information for emergency preparedness to ensure that proper resources are allocated ahead of time to help the estimated number of U.S. citizens residing and vacationing in the host country in the event of any emergency. U.S. Consulates overseas notify U.S. citizens traveling or living in the host nation about security situations and natural disasters. Such incidents can vary from 2015 3
notifying U.S. citizens about protests, informing the public about threats, and conducting evacuations. During domestic unrest and natural disasters such as earthquakes, U.S. Consular and Embassy teams conduct wellness checks on U.S. citizens and provide emergency services to include passport and visa assistance, and assistance with life-threatening issues. The U.S. Department of State will evacuate U.S. citizens residing or vacationing in countries where civil unrest or serious security issues warrant a countrywide evacuation. This entails informing and locating U.S. citizens to help them to safety. U.S. Consulates also provide assistance to U.S. citizens who have experienced an accident, been incarcerated, experienced a serious injury, or have perished abroad. A wellness check is conducted on all U.S. citizens incarcerated overseas as soon as possible. U.S. citizens who are stranded due to civil unrest and lack of resources (e.g., theft of identity documents or hardships such as displacement), are also provided assistance by the U.S. Consulate. Wellness checks are also conducted when U.S. citizens have experienced a serious injury or hospitalization or have been victims of a crime. Whereabout checks are conducted when a family member or other entity informs the Consulate that they suspect a U.S. citizen is missing. This requires close coordination with the RSO Office and host country s police. The Consulate communicates with Americans overseas via contact information provided, as well as the Warden System. The Warden System is a communication system by which U.S. citizens living abroad volunteer in different regions of the host county to serve as a communication conduit between U.S. citizens living in the region and the U.S. Embassy and Consulate. 2015 4
Other methods of disseminating information to U.S. citizens residing or traveling abroad include Travel Advisories, Worldwide Cautions, Messages to U.S. Citizens, and Travel Warnings, all of which are published on the U.S. Department of State website. In the event of a death of a U.S. citizen overseas, U.S. Consulates meet with the host country s authorities and the family of the deceased to bring the body of the deceased back to the United States at the family s or individual s request. U.S. Consulates also assist with repatriation of U.S. citizens who have renounced U.S. citizenship and wish to reclaim citizenship. U.S. Law Enforcement Personnel Overseas Limitations U.S. federal, state, and local law enforcement agencies with an investigation that has an overseas nexus should contact the U.S. Embassy for assistance. U.S. law enforcement agencies do not have the authority to conduct investigations overseas. It is imperative to remember that U.S. citizens employed at U.S. Embassies overseas, whether they be diplomats or not, are guests within a country and do not possess investigative or arrest authority. Hence, law enforcement issues must be coordinated with the RSO or other Embassy law enforcement. The U.S. Embassy law-enforcement cadre have established contacts with law-enforcement agencies throughout the host country and know which foreign police entity and which section within a police agency would be most helpful. Cooperation and assistance from the host country s police forces is directly dependent on the diplomatic relationship between the U.S. and the host country, the culture, and the relationship with the U.S. Embassy law enforcement personnel. Some cultures are open to 2015 5
allowing U.S. Embassy law enforcement to assist and participate in investigations and police processes; some allow for distant observation but engage in communication; while others have a nonexistent relationship. Hence, coordination through the U.S. Embassy s law-enforcement agencies is key when attempting to conduct an investigation overseas. You must be accredited with an Embassy to work an investigation as a U.S. law enforcement officer. U.S. police cannot come to a foreign country an engage liaison with the host country. U.S. law enforcement agencies not accredited to an Embassy would need to obtain assistance through the RSO office or another U.S. Embassy law-enforcement agency. In the event that a federal law-enforcement agency requests coming to a foreign country to investigate a case, permission must be requested and received by the U.S. Ambassador of that country and that agency or office must work directly with one of the law-enforcement agencies accredited at the Embassy. The goal of the Embassy is to maintain a cohesive voice and effort when conducting investigations overseas and hence, in-depth coordination is required. U.S. businesses located overseas can contact the RSO office for guidance on requesting assistance from the host country s police for an investigation or incident. U.S. Embassy law-enforcement personnel can provide guidance on whom to contact with regard to conducting an investigation, but the Embassy does not engage in official involvement of an investigation conducted by a private entity or business due to the potential impact and optics that can create an international issue and potential diplomatic incident. 2015 6
Ways to Proceed with Criminal Charges Abroad Once you are able to locate and identify the subject of your investigation, the procedures and options for exacting a result are dependent on the nationality of the subject, the nature of your investigation, and the extradition treaties of each foreign country involved. Options for courses of action to take include extradition, expulsion, and voluntary return to face charges. Obtaining a warrant that entails an extradition order is necessary to proceed with an extradition overseas. Extraditions Extraditing wanted criminals from foreign countries is a complex process that engages the U.S. Department of State and the Department of Justice. Close coordination with the U.S. law-enforcement entity that has the warrant for extradition, the U.S. Embassy, and the host country s Ministry of Justice is essential. The host country must have an extradition treaty in place in order to comply with the extradition order. Having an extradition treaty in place does not guarantee results. Complications That Can Impact Extradition The extradition process can be lengthy, which can result in the statute of limitations for the crime expiring before the extradition process is finalized, depending on the complexity of the case and the host country s stance. Willingness of the host nation to assist with the investigation and or comply with the request is instrumental in the outcome. The crime for which the extradition is sought must meet the host country s criteria of a crime. Some countries require the classification of the crime to be one that 2015 7
requires a penalty. Some countries will not extradite suspects of political crime. Capital punishment is not an accepted sentence in many countries; hence, several countries will not allow extradition if the possibility exists of capital punishment being imposed on a citizen hailing from their nation. Jurisdiction over a crime can be invoked to refuse extradition. In particular, the fact that the person in question is the nation s own citizen causes that country to beg the question of jurisdiction. Some countries possess laws that provide jurisdiction over crimes committed abroad by any of their citizens. Such countries try citizens of their state within their country for crimes committed overseas, provided the crime is considered egregious. Expulsions Another option in lieu of extradition is expulsion. Some countries prefer to expel a foreign national from their country despite requests for international extraditions. This usually entails revocation of immigration status or immigration permits and results in deportation or expulsion from said country. This option is routinely exercised when a crime is committed by a foreigner located in a country other than their own. Resources Available When Conducting Investigations Overseas Interpol Interpol is an international police organization, with 190 member countries that work with police from around the world to locate, disrupt, and apprehend 2015 8
criminals. Interpol had seven regional offices around the world and is headquartered in Lyon, France. Interpol uses a method of identifying wanted criminal through use of a color-coded notice system, which serves as an international alert used by police to communicate information about specific types of crimes (www.interpol.int). 2015 9
Figure 1: Types of Interpol Notices (Interpol 2015) Red Notice To seek the location and arrest of wanted persons with a view to extradition or similar lawful action. Yellow Notice To help locate missing persons, often minors, or to help identify persons who are unable to identify themselves. Blue Notice To collect additional information about a person s identity, location or activities in relation to a crime. Black Notice To seek information on unidentified bodies. Green Notice To provide warnings and intelligence about persons who have committed criminal offences and are likely to repeat these crimes in other countries. Orange Notice To warn of an event, a person, an object or a process representing a serious and imminent threat to public safety. INTERPOL United Nations Security Council Special Notice Issued for groups and individuals who are the targets of UN Security Council Sanctions Committees. Purple Notice To seek or provide information on modus operandi, objects, devices and concealment methods used by criminals 2015 10
Overseas Security Advisory Council (OSAC) The OSAC is a security information-sharing council available to any U.S.-owned, not-for-profit organization, or any enterprise incorporated in the United States that is conducting business in an overseas arena. OSAC Councils are chaired by the RSO and a president or country council is elected by the country s OSAC members. An OSAC council exists in every country where an RSO is assigned. Meetings comprise training, discussions on the host nation s or region s security situation, safety, security preparations, investigative and security patterns, and other pertinent security and lawenforcement-related themes. Each council works closely on issues of interest and commonly incorporate the host country s personnel. The OSAC provides an avenue to engage in security and safety discussions about the current environment and issues impacting U.S. interests in the country and throughout the region. Subject matter experts, speakers, U.S. law enforcement from within the Embassy, and the host nation s police are sometimes invited to participate, provide presentations, and engage in discussion. The OSAC is a networking tool that provides information on whom to contact with regard to investigative best practices and experiences of fellow U.S. businesses and U.S. interests within the host country. The OSAC website contains relevant information on most countries that can impact U.S. businesses and interests abroad. Regular publications on the OSAC website include the Crime and Safety Report, a report authored and compiled by the RSO in each country 2015 11
where there is a U.S. Department of State post. This report summarizes the security and safety situation in each country and region and lists guidance and protocols for conducting business and interacting with host-country offices. Consular Report is another publication found on the OSAC website that summarizes travel and immigration information. Country Council Report provides summaries of topics covered in OSAC Country Council meetings as well as current affairs and lessons learned (www.osac.gov). American Chamber of Commerce (AmCham) The American Chamber of Commerce Abroad, part of the U.S. Chamber Federation, is located in 103 countries and includes more than 116 American Chambers of Commerce. While focused on advancing economic relations among the United States and markets overseas, AmCham can also serve as a networking repository for trends affecting businesses abroad and provide insight on investigations and criminal occurrences experienced by businesses in the overseas realm (www.uschamber.com). References 1. Interpol, March 26, 2015, www.interpol.int. 2. Security Advisory Council, March 28, 2015, www.osac.gov. 3. U.S. Chamber of Commerce, March 30, 2015, www.uschamber.com/international-affairs-division. Figures 1. Interpol Expertise, Types of Interpol Notices, Interpol, accessed March 28, 2015, www.interpol.int/interpol-expertise/overview. 2015 12