Skynet. To most American audiences, this word is evokes images of the omniscient, malevolent computer in Arnold Schwarzenneger’s classic, The Terminator. But in 2015, Skynet also means something else. Media outlets and the blogosphere (including this blog) are abuzz over Chinese President Xi Jiping’s “Operation Sky Net”: the Chinese government’s efforts to repatriate a “most wanted” list of over 100 Chinese nationals suspected of criminal corruption. (The name “Sky Net” traces its origins to the Chinese idiom, “The sky may look thin and sparse, but it is vast and won’t let you escape.”) Forty of the 100 are suspected of being in the United States—a prime destination chosen for its high standards of living and, more importantly, lack of extradition treaty with China.
It is hardly news that China is doing all it can to repatriate these fugitives abroad, and it is also old news that the U.S. and China have a rocky history when it comes to extradition. As Rick mentioned in a prior post, the United States is extremely reluctant to negotiate a formal extradition treaty with China, and the reasons are plenty: In the U.S. view, China suffers from weak rule of law, lack of due process, and an ignominious record for human rights violations. In addition to precluding the negotiation of an extradition treaty, these factors also stymie case-by-case extraditions. Indeed, until last month, only two Chinese fugitives in the U.S. had been extradited in the previous two decades. All of the above would seem to suggest that China’s recent efforts would be a presumed uphill battle. But in September 2015 alone, two suspected fugitives, Yang Jinjun and Kuang Wanfang, wanted for their separate parts in vast bribery, money laundering, and public corruption schemes, were successfully repatriated to China. What changed?
One way to explain China’s recent success in securing extraditions from the U.S. is that China’s recent requests for assistance in repatriating alleged fugitives involved in corruption crimes have come at a time when the United States has made anticorruption a point of special focus. In short, the stars (in the Sky Net) aligned.
In particular, these extradition requests have come after a period, over the last 15 years or so, of accelerating U.S. enforcement of the Foreign Corrupt Practices Act (FCPA). The two agencies responsible for enforcing the act—the DOJ and the SEC—have made FCPA enforcement a top priority, something that shows little sign of abating. (As this update aptly shows, the two agencies combined brought only 12 actions against companies in 2005, as compared to the drastic jump to 74 in 2010.) While the average number of enforcement actions has leveled off to approximately 20-30 per year in most years following 2010, the United States is signaling with its recent institutional changes that its focus on the FCPA is only strengthening. For instance, last July the DOJ announced its intentions to hire its first ever FCPA “chief compliance officer,” who will help the DOJ decide whether to prosecute certain companies for FCPA violations, a move that signals to companies that the DOJ is serious about prosecuting suspect companies, rather than just running the current course of resolving FCPA enforcement actions with non-prosecution agreements and deferred prosecution agreements. Coupled with last month’s release of the Yates Memo (covered in more detail in this prior post), which signaled a higher standard for absolving individuals involved in all corporate crimes (including FCPA violations), the message is clear: the United States government’s will not tolerate foreign bribery–and the U.S. cares about fighting corruption in other countries.
Meanwhile, in China, President Xi Jinping launched an anticorruption campain unprecedented in its size and scope shortly after he took office in 2013. What started as domestic campaign against corrupt regional officials quickly escalated to a global scale that set the stage for the extradition negotiations at issue now. Although the timing may be coincidental, it is not hard to imagine that the United States would be especially reluctant to refuse to help China repatriate fugitives who violated anticorruption laws, lest this invite skepticism about the sincerity of the U.S. commitment to fight corruption around the world.
However, that the common ground secured the repatriation of two suspected fugitives does not mean that the mountain of extradition issues between the countries has been leveled. Human rights concerns still exist, and rule of law (or lack thereof) is still contentious. Rather, what it does likely mean is that instead of focusing on the many differences that prevented extraditions in the past, the two countries shifted to identifying and advancing a common purpose: curbing global corruption, regardless of whose law is used.
[A disclaimer: Nothing in the above discussion reflects the views of my previous employer, the Department of Justice’s Office of International Affairs, which is the national clearinghouse for incoming and outgoing extradition requests.]