Why Was Bill Browder Blocked From Flying To The US? It’s Complicated

at the World Economic Forum in Davos, Switzerland on Wednesday, Jan. 26, 2011. Buoyed by a burst of optimism about the global economy and mindful of the "new reality" that has framed it in the aftermath of the financial crisis some 2,500 business leaders, politicians and social activists will tackle an array of issues on the first day of the World Economic Forum. (AP Photo/Virginia Mayo)
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The National Review’s Jay Nordlinger wrote Sunday that one of Vladimir Putin’s fiercest critics had been barred from entering the U.S.—and the outcry was immediate. Had the State Department revoked Bill Browder’s visa? Was Russia trying to get him arrested?

Rep. Eliot Engel (D-NY), ranking member of the House Foreign Affairs committee, issued a statement decrying “the Department of State’s baffling decision to revoke Bill Browder’s visa” and calling on Rex Tillerson to personally reinstate him. A State Department spokesperson referred TPM’s questions to the Department of Homeland Security—like most Brits, Browder didn’t have a formal visa, they said—he was welcome to apply for one.

Browder himself was irate when he spoke to TPM on Monday afternoon: “I’m pretty sure that this is just an automatic thing. So the question is, will they lift it or not?”

“There’s no way that I can get any information about any of this stuff,” he added. “When I called [DHS’] help line, after waiting an hour and a half they said ‘I can’t tell you anything about why this has happened, you’ll have to write a FOIA.'”

Hours later, the Department of Homeland Security provided an answer: Customs and Border Protection had to manually approve Browder’s travel authorization after the Interpol notice went out—but says it did so on Wednesday. Browder contests this—he said he still couldn’t fly on Thursday, when he got the email notice. TPM has asked DHS for clarification and will update this story when and if it comes.

So what exactly happened here?

Russian authorities had issued a “diffusion” through international police service Interpol calling for his arrest last Tuesday, Browder told TPM (the country’s government had already tried to force Interpol to issue a “red notice,” much like putting Browder on an American “Most Wanted” list, but Interpol repeatedly refused). Exploiting that bureaucratic loophole, Russian authorities appear to have succeeded in automatically rescinding permission for Browder to visit the U.S., albeit briefly.

The problem stemmed from Browder traveling not on a visa issued by the State Department, but on the less formal Electronic System for Travel Authorization (ESTA). ESTA is supposed to ease diplomatic restrictions on travel for foreigners who are unlikely to overstay the 90-day limit on their visas, Chicago-based immigration lawyer Richard Hanus noted. The automated nature of the system makes it convenient for most people, but speed and responsiveness pose a problem when Russia can use the system to game American border controls to cause trouble for its critics.

“The only times we see things like this is when there’s an irregularity,” Hanus told TPM: “previous U.S. immigration violations—when somebody stays more than the 90 day—or when there’s a criminal matter.”

The New Jersey-born, Chicago-raised Browder, who became a British citizen in 1998, said that he’d gotten a form email on Thursday telling him to check his “Global Entry” status, which is like TSA Pre-check for non-citizens.

“And so I logged into Global entry and it said ‘your status has been revoked’ and so I said, ‘Well I wonder if my Visa has been revoked, so I tried to check into a flight and I couldn’t,'” he said.

Yet a DHS spokesperson told TPM that Browder was supposed to be good to go by that point. The agency’s statement reads:

“As the agency charged with preventing the entry of terrorists and other criminal actors from entering the United States, U.S. Customs and Border Protection regularly screens law enforcement systems in order to determine if any travelers present a security or law enforcement risk. This vetting is done on a recurrent basis and decisions on travel are made on the latest information available. The decision to approve or deny an ESTA application is made on a case-by-case basis on the totality of the circumstances. When possible matches to derogatory information are found, applications will be vetted through normal CBP procedures which include a manual review by a CBP analyst and a supervisor prior to a determination being made. Applications being manually reviewed may temporarily be placed in a pending status until a final determination is made. William Browder’s ESTA remains valid for travel to the United States. His ESTA was manually approved by CBP on Oct. 18—clearing him for travel to the United States.

Russia had given Browder a similar headache in August, shortly after a Council of Europe report condemned that country for misusing anti-crime protocols for political ends in his case. Turkey recently had been scolded for trying to use Interpol to arrest a Spanish journalist critical of military dictator Recep Tayyip Erdoğan, too.

Four days after publication, Interpol responded to TPM’s request for clarification on the topic of the diffusion calling for Browder’s arrest. No member nation, Interpol said, is required to honor its Red Notices or diffusions beyond its own laws. On the topic of Russia’s specific diffusion related to Browder, the agency said:

All notices and diffusions must meet Interpol’s rules and regulations, and prior to publication all Red Notice requests are checked by a dedicated task force to ensure they are compliant. Diffusions are circulated without prior approval from the General Secretariat.  However, the dedicated task force also checks diffusions for wanted persons, even though they are already circulated, to ensure that they are compliant.

When a Red Notice or diffusion is cancelled, for whatever reason, a message is sent to all member countries informing them of the decision and they are requested to remove any related information from their national databases and not to use Interpol’s channels in relation to the case.

A diffusion recently circulated in relation to Mr Browder was found to be non-compliant following a review by the General Secretariat. All information in relation to this request has been deleted from Interpol’s databases and all Interpol member countries informed accordingly.

Browder Tweeted Thursday that Interpol had changed its policies to prevent Russia from abusing the diffusion system.

As Canadian reporter Daniele Hamamdjian also pointed out on Twitter, the law enforcement agency did the same thing in 2013.

This post has been updated.

ABOUT THE AUTHOR

Sam Thielman is an investigative reporter for Talking Points Memo based in Manhattan. He has worked as a reporter and critic for the Guardian, Variety, Adweek and Newsday, where he covered stories from the hacking attacks on US and international targets by Russian GRU and FSB security services to the struggle to bring broadband internet to the Navajo nation. He lives in Brooklyn with his wife and son and too many comic books.
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