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It is the end of the line for former Green Beret Michael Taylor and his son, Peter, who lost their court fight to avoid extradition from the United States to Japan on Thursday and could be on a plane to Tokyo as early as Friday morning US time.
A three-judge panel of the federal First Circuit Court of Appeals in Boston issued a terse, six-line ruling denying the Taylors appeal. Tokyo prosecutors want the Taylors back in Japan to stand trial for their alleged role in helping Carlos Ghosn, the fugitive former CEO of Nissan and Renault, break bail and escape from Japan in December 2019.
Ghosn is safe in Lebanon, his home country, which doesn’t have an extradition treaty with Japan. The Taylors, haaving languished in a Massachusetts jail for the past eight months, now must face Japan’s notorious “hostage justice†system.
Expect them to confess – who knows to what? – because they will be interrogated without the presence of a lawyer until they do. That’s how things are done in Japan and why Japan boasts a 99% conviction rate.
While Tokyo prosecutors have won a victory with the support of Mike Pompeo’s State Department, which is now history, the victory is a small one looking at the big picture
And no one else wins.Â
Not Nissan, which is projecting a 340 billion yen (US$3.2 billion) operating loss in the current business year ending March 31.Â
Not Carlos Ghosn, who is safe in Lebanon but still on the Interpol watch list.
Not the Taylors, obviously, who are facing up to two years in prison, assuming the prosecutors don’t add charges.
Not Greg Kelly, the American at Nissan who is currently on trial in Tokyo for his alleged role in helping Ghosn hide eight years of retirement income. (Note, by the way, that senior Japanese management at Nissan who played theri own roles in that because they shared with Kelly the goal of paying Ghosn enough to keep him at Nissan, won’t be prosecuted.)
Not US President Joe Biden’s administration, which – while committing to “re-engage†with the United Nations Human Rights Council – has just signed off on the Taylors’ extradition.
And clearly not any of us Americans who have lived, worked or traveled overseas.
In effect, a US federal judge representing the District of Massachusetts ruled that what most of us would call torture doesn’t meet the legal definition. Her ruling ignored evidence to the contrary, including evidence from three US senators representing states where Nissan has plants.
Having followed the Ghosn story from Day 1, November 19, 2018, when he was forcibly removed from his airplane and taken to the Tokyo Detention Center, to be held in solitary confinement for 130 days and subjected to extended interrogations without his attorney present, I can say that we have been played by Japanese prosecutors.
But don’t take my word for it. Take the word of Mississippi’s US Senator Roger Wicker, who, speaking on the floor of the Senate in late September, characterized the charges against Ghosn and Kelly as “bogus.â€Â
Focusing on Kelly, who resides in Nashville, Tennessee, Wicker said the Nissan board member was lured to Japan on false pretenses. Like Ghosn, Kelly was arrested shortly after his arrival and taken to the same Tokyo Detention House – which, to be clear, is a maximum-security prison complete with an execution chamber, where doomsday cult leader Shoko Asahara was hanged in July 2018.
“Their plan required framing [Kelly] for bogus financial crimes and throwing him under the bus,†Wicker declared. “While he was en route to Tokyo from the US, Nissan executives launched a ‘boardroom coup’ to strip Mr Kelly of his position. Concurrently, government prosecutors seized his boss, Carlos Ghosn, chairman of the board of Nissan, for allegedly underreporting his income – another bogus charge.â€
This, mind you, is a conservative US senator in a state where Nissan has a major manufacturing operation, who added that Kelly’s treatment was “cruel, unfair, harsh and arbitrary,†aimed at “producing a guilty verdict…. His being lured to Japan, his wrongful arrest, his deplorable treatment in solitary confinement [37 days] and in court are a scandal worthy of Vladimir Putin, not of our allies in Japan. It should be an embarrassment for any modern democracy.â€
The Taylors’ lawyers submitted Wicker’s Senate statement from the Congressional Record along with an op-ed piece co-written by Wicker and two Tennessee senators, Marsha Blackburn and Lamar Alexander (who retired in January), openly criticizing Japan’s “hostage justice†system and Kelly’s mistreatment. They also submitted a statement from Carlos Ghosn himself.
The judge said nothing about this evidence and relied instead on the word of an official in the Pompeo State Department, who declared in a bit of diplomatic doublespeak that the Taylors’ extradition “will not more likely than not result in their being tortured in Japan.â€
To be clear, the judge didn’t dispute that “prison conditions in Japan may be deplorable†or that “criminal procedures may not satisfy American notions of due process†– her words. She just didn’t think they constitute “severe physical or mental pain and suffering,†the United Nations definition of torture in the UN’s anti-torture treaty to which the US is a signatory.
The Taylors “have failed to establish that no reasonable fact finder could find anything other than that they are more likely than not to be subjected to torture in Japan,†she said. “This ends the court’s inquiry.â€
Shame on her, because it’s not true. The Taylors will be interrogated for hours on end without a lawyer present. If prosecutors follow their Ghosn playbook, they will add charges while keeping the Taylors in solitary confinement in perpetuity until they extract a confession. Ghosn wouldn’t confess.
Note that the Taylors’ lawyers submitted reports from Human Rights Watch, Amnesty International and a special UN panel, all offering sharp rebukes of Japan’s criminal justice system on grounds of “torture,†“ill treatment to extract confessions,†“human-rights violations†and “extrajudicial abuse,†the latter directly involving the Ghosn case.
And what is the real crime – that Michael Taylor, a former decorated Green Beret special forces soldier, helped Carlos Ghosn break bail? (The evidence against Taylor’s son, Peter, is almost entirely circumstantial.) Or was the real crime Taylor Sr committed embarrassing Tokyo prosecutors, who shouldn’t have arrested Ghosn and Kelly in the first place and foolishly allowed themselves to be drawn into a “boardroom coup,†to quote Wicker?
The consequences of the court’s decision reach far beyond the Taylors to every American living, working or traveling abroad because the judge has set a precedent that we extradite American citizens for non-violent and non-drug-related crimes to countries that don’t respect our due process traditions, flawed though they may be.
And Japan as a rule doesn’t extradite its citizens to the US. It made an exception in 2019 for two individuals allegedly involved in a $1.5 billion Ponzi scheme, but there seem to have been special circumstances.
Even three Takeda Corporation executives who were indicted for their role in covering up faulty airbags that killed nearly 20 Americans have not been handed over to prosecutors in Michigan, four years after criminal indictments were handed down. And they probably will never be.
And Japanese officials involved with the Ghosn case openly admit, almost flaunt, their approach to treating prisoners in general and Ghosn in particular.Â
“In Japan,†said former justice minister Masako Mori in an interview one month after Ghosn’s escape, “interrogation often remains the only means to extract statements from suspects. Keeping defense lawyers out of interrogations is needed …â€
Mori’s tenure as justice minister, Japan’s equivalent of the US attorney general, ended last September, but not before she let slip that Ghosn should return to Japan to “prove his innocence.†In Japan as in the US there is supposed to be a presumption of innocence and it is the prosecution’s role to try to overcome that. The minister later corrected her statement, but not convincingly to many of us who have followed the case.
Meanwhile, deputy chief prosecutor Takahiro Saito challenged Ghosn’s claims that he had been interrogated almost daily for up to eight hours without his lawyer present. At two January 2020 news conferences, Saito said that Ghosn had only been interrogated 70 days, not 130, and for a daily average of four hours, the longest being six.
And that would be OK?
Saito failed to mention that “no person shall be arrested or detained without at once being informed of the charges [and] at all times have the assistance of counsel.â€
That’s what the Japanese constitution stipulates.
The Taylors’ extradition and the precedent it will set considering they allegedly committed a relatively minor crime – high profile no doubt, but helping a foreign businessman who had spent 130 days in solitary confinement jump bail is hardly a matter that should have brought the full weight of the US State Department – clearly lowers the bar for extradition, perhaps to historically low levels.
The last American extradited to Japan, a former US military service member, was accused of smuggling nearly $2 million of drugs into Japan. That was nearly eight years ago.
And still to be determined is the effect this whole fiasco will have on the business community.
In his rebuke regarding the Kelly case, Wicker said: “This ordeal sends an unmistakable message to the American business community: If you do business in Japan, you had better watch your back.
“When it suits Japanese interests, they could set a trap for you, throw you under the bus, put you in prison, deprive you of your rights to counsel and your rights to return home. And waste years of your life needlessly. That is the message it sends to the American business community. It’s is a shameful story.â€
The judge’s ruling, to repeat, ignored Wicker’s statement.
Postscript: Reviewing the US government’s November 9 response to the Taylors’ appeal reveals that four new names, all from the Justice Department, were later added to the list. One that stands out: Nicholas McQuaid, whose title is acting assistant attorney general. He’s a Biden appointee.
The reason this may be noteworthy is that McQuaid, from June 2017, had been employed as a “partner†in the litigation and trial division of Los Angeles law firm Latham & Watkins LLP.
Latham & Watkins, according to the firm’s website, was recognized by Law360, a legal news service, for its “global representation of Nissan in connection with investigations related to highly publicized allegations that Carlos Ghosn, Nissan’s former CEO and chairman of the board, failed to disclose millions of dollars in executive compensation awarded to him by Nissan and misappropriated Nissan’s corporate assets for nearly a decade.â€
To Carlos Ghosn, the law firm is a bete noir.
The Department of Justice did not respond to my requests for information regarding any possible conflict of interest.
Roger Schreffler is a veteran correspondent for Ward’s Automotive and a former president of the Foreign Correspondents’ Club of Japan. A shorter version of this article was previously published by Real Clear World.
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