On Christmas Day I received what I thought was a crank call from the Norfolk County Jail in Dedham, Massachusetts, USA. It turned out the caller was Michael Taylor, a former member of the US Army’s Green Berets special forces outfit who’d gone on to become a private security consultant and who, together with his son Peter, has been accused of helping Carlos Ghosn escape from Japan a year ago.
Taylor got my number from his lawyer, to whom I had written when I realized Taylor lived only 60 miles away from me in Harvard, Massachusetts. I live in Providence, capital of neighboring Rhode Island, and his case is being adjudicated in Boston, also in Massachusetts.
At what may or may not turn out to have been the conclusion of a colorful career doing cloak-and-dagger sorts of things – sometimes on behalf of the US government – Taylor faces extradition to Japan for his role in helping Ghosn jump bail and leave Japan by hiding in a musical instrument case loaded onto a private jet.
The escape journey took Ghosn to Istanbul first, then on to Lebanon, his home country, which has no extradition treaty with Japan. Ghosn holds three passports: Lebanese, French and Brazilian. He used his French passport to enter Lebanon.
Taylor had a document to give me: a copy of a sworn declaration from Ghosn himself on behalf of the two Taylors’ habeas corpus claim that sending them to Japan to face trial would subject them to torture.
Taylor and I spoke – all calls are recorded – and my main take is that he is deeply into the minutiae of his case including several “theories” about the timing of Japan’s push to extradite him. I told him I wouldn’t do anything to hurt him, so I won’t discuss those.
Deserves a medal
Truth be told, I think Taylor deserves a medal for getting Ghosn out of Japan, and it would have been even better had he been able also to extract Greg Kelly, the American representative director from Tennessee who was lured back to Japan on false pretenses (he was lied to) and arrested on even flimsier charges than those lodged against Ghosn.
Kelly was vilified as Ghosn’s fellow “mastermind” (shubosha) of the crime during an outrageous evening press conference held at Nissan headquarters in Yokohama on Nov. 19, 2018, the day Ghosn and Kelly had been arrested.
In my years in Japan, I have never seen anything like it: the accused both prosecuted and convicted in a public forum by corporate management, and not given a chance to defend themselves.
That said, the case against Taylor and his son – both have been imprisoned since May 20 with no US charges brought against them – would appear to be cut and dried.
Except: Nothing in the Carlos Ghosn story is cut and dried. Nothing starting with the underlying political intrigue – involving the French government’s desire for Renault to make Nissan a subsidiary – right on up to the arrests of Ghosn and Kelly, neither of whom could read or write or speak Japanese, on charges of concealing ¥9.2 billion ($89 million) of Ghosn’s deferred retirement income in official financial reports all of which were submitted in Japanese.
For that to have happened, Nissan’s financial and auditing operation would have had to be asleep at the wheel for a period of nearly a decade. Such a situation, as one veteran corporate attorney advised, “would signify a systemic breakdown falling somewhere between gross negligence and willful recklessness.”
Before his escape, Ghosn had been under house arrest. We met in November 2019 and he told me that “of course” Nissan’s board had approved his future compensation. I wasn’t at liberty to quote him then because he had a genuine fear of being rearrested were he to speak openly to the press.
Indeed, earlier that year he had been out on bail when authorities got wind he planned a press conference at the Foreign Correspondents’ Club of Japan in early April 2019. He’d been rearrested on April 3 before the event could be held. We discussed that during our meeting – but his recent court filing on behalf of Taylor tells the story better than Gohsn had told me:
My re-arrest was carried out in a very brutal way at 6 a.m. in the morning (of April 3) in the presence of my wife, whose passport, mobile phones and personal computers were illegally confiscated. I could not hold the press conference and never did it any time after while I was in Japan. I was not released a second time until April 25, 2019. I should have been released within 23 days (of my Nov. 19, 2018 arrest), but the prosecutor simply kept re-arresting me either on the same charges or on different charges to extend this period to 130 days.
In fact, my first question to Ghosn was how he was holding up mentally. Having interviewed him early in his tenure in Japan and not having been particularly close – he was always formal and professional – I knew I was getting into risky territory.
Die in Japan
Nevertheless, it was a question I had to ask. He was guardedly optimistic that he would win his lawsuit. I wasn’t optimistic – I’m sure he saw the skepticism on my face. I felt that he would die in Japan, that the prosecutors would never let him leave.
Then my next question was whether he spoke Japanese. I’d had a rather sharp exchange with Nissan’s media group when I asked them how good – or otherwise – Ghosn’s and Kelly’s Japanese language skills were. They declined to respond. It would have taken them one phone call to the company’s secretariat. At that point I concluded they weren’t going to answer anything that contradicted the official line: Everything wrong with Nissan was due to Ghosn and Kelly.
Almost two full years after his arrest and imprisonment, on November 13 this year Nissan filed a civil suit against him, seeking $97 million (10 billion yen) in damages.
Ghosn, despite having an affinity for languages, said that he had decided early on not to learn Japanese. Separately, a source close to Kelly told me that he could handle “greetings” – I interpreted that to mean Ohayo gozaimasu (“Good morning”) or Konichiwa (“Good day) but not much more.
We also discussed Ghosn’s alleged misuse of the CEO Reserve Fund, which is at the center of his alleged crimes in Europe. I made the mistake of calling it a CEO “slush” fund, drawing an immediate rebuke as Ghosn explained there was a rather extensive approval process in place for money to be spent.
We discussed a Reuters expose about his alleged misuse of the CEO Reserve Fund early on in the scandal – obviously leaked from someone inside Nissan – which quoted an unnamed source “familiar with the inquiry” as asking: “Why would internal financial staff go in and check $1 million transactions in a subsidiary five, six levels down and away from the global headquarters? They wouldn’t do that, especially when the amounts are less than $1 million.”
I’m told that’s simply not true. I was advised by a Ghosn confidant that there are about eight layers of compliance inside Nissan – and, thus, dozens of people including in-house auditors who would have reviewed the internal financial accounts and reports, in Japanese, before submitting them to financial regulatory authorities.
There’s more to the story and some has been revealed in Ghosn’s tell-all book, Le Temps de la Verite or “Time for the Truth,” which he cowrote with French journalist Philippe Riès. The book, which is already available in French, is due out in Japanese and English (as Global Motors) in 2021.
Taylor case
Bringing us back to the Taylors: There is little doubt that Michael Taylor assisted Ghosn with his escape. It is less clear he broke Japanese laws.
Japan, according to one legal expert, doesn’t have a law prohibiting “bail-jumping.” Ergo: If there is no legal prohibition, then anyone who might aid and abet a person jumping bail by definition has not committed a crime, thus what’s the justification for extradition?
The charges against Taylor’s son Peter are at best circumstantial. Peter met Ghosn and his father along with a third alleged conspirator at a Tokyo hotel mid-afternoon on Dec. 29, 2019, then left for Narita International Airport, east of Tokyo, en route to China. Thus he wasn’t anywhere near Osaka when Ghosn reportedly boarded a plane to leave Japan.
Especially relevantly, the Taylors’ attorney has made the case in a brief to the US District Court in the District of Massachusetts, where the Taylors’ extradition case is being adjudicated, that remanding father and son to the Tokyo prosecutors office would likely result in their being tortured.
He quoted the United Nations Convention on Torture, which seems to describe Japan’s notorious “hostage justice” system quite accurately. Ghosn also made a declaration to the court about what he was forced to endure at the hands of the prosecutor’s office in Tokyo.
In his November 11 statement, he wrote:
The Taylors have argued against their extradition because of the human rights abuses and injustice they will face at the hands of the Japanese legal system. I have unfortunately experienced the Japanese law enforcement and judicial system, practices and tactics that confirms the Taylors’ fears – from prolonged pre-trial detention, splitting accusations to give option of filing additional charges and extending pre-trial detention, mental torture and intimidation with the single aim of coercing a confession and/or an acknowledgement of guilt, and with no hope of a timely and fair trial.
The Japanese public prosecutor initially arrested me on November 19, 2018, on allegations of financial misconduct. I kept being re-arrested based on splitting charges tactics or different charges, and the Tokyo District Court did not release me on bail for 109 days until March 2019. The prosecutor shockingly re-arrested me on new charges a month later, shortly after I announced the holding of a press conference to speak about my situation.
His time in confinement, largely solitary when he did not have the company of prosecutors there to grill hm, was 130 days.
During that five-month period, I was interrogated constantly, both during the day and at night and without any break for weekends or holidays. I was denied access to counsel and pressed for a confession during these sessions, which lasted up to eight hours. The statements sought from me were both as to facts and my agreement that laws were violated.
When I was first arrested, they put me in a [poorly] heated room of barely 78 square feet with only Japanese-style tatami mats and a futon. I was not switched to a cell with a bed until I got severely sick [in January 2019].
To disorient and discomfort me, the lights were left on at all times, and I was denied access to any time-keeping devices. The room’s only window was blurred and recessed so that I could not tell what time of day it was, and the conditions had a negative impact on my mental and physical health.
This was made worse because I was denied access to my usual medications bought from France and I was therefore forced to [use] local medication.
While detained, I was allowed to shower only two times per week, and while I was given 30 minutes outside [weekdays], I was totally confined to my cell during weekends and holidays.
I was prohibited any contact with my family from November 2018 until the middle of February 2019. In the bail decision of April 2019, I was banned from any contact with my wife, claiming that she might tamper with evidence …
Cruel tactics like these are common in Japan and plainly meant to wear an accused down until a guilty plea can be obtained.
Unlike protections in the United States, I was presumed guilty from the start, and even a year after my arrest, no trial date was set. Even if I had defied Japan’s 99.4% conviction rate by refusing to give a false confession and somehow exonerated myself, the Japanese prosecutor would simply have mired me in years of appeals, which the prosecutors there can do.
If the Taylors are extradited, they will face similar or worse conditions to those I faced during my period of detention.
I declare under penalty of perjury that the foregoing is true and correct.
Ghosn didn’t even mention that the Justice Minister, shortly after his escape, said he should have stayed in Japan to “prove” his innocence. She later walked back her statement – remember “innocent until proven guilty”? – but said it nonetheless.
But consider Ghosn’s treatment in the context of the U.N. treaty forbidding torture, which Japan signed in 1999. (My emphasis added.)
The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
And then there’s the Japanese constitution, the one that the Americans gave them and, to quote my Japanese wife, they never understood – at least with respect to rights of the accused. Tokyo prosecutors ignored the constitution while interrogating Ghosn for more than 100 days:
Article 34: No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel.
Article 37: In all criminal cases the accused … shall be permitted full opportunity to examine all witnesses, and he shall have the right of compulsory process for obtaining witnesses on his behalf at public expense. At all times the accused shall have the assistance of competent counsel who shall, if the accused is unable to secure the same by his own efforts, be assigned to his use by the State.
Greg Kelly, the American executive on Nissan’s board, spent 37 days in semi-solitary. Kelly, according to media reports, faces 10 years in prison if found guilty of financial crimes, that on their face are technicalities, the circumstances of which surely were known by dozens inside the automaker.
An automaker that, almost as an afterthought, is projecting losses when it closes its books in March of $4.5 billion (470 billion yen).
Roger Schreffler is a veteran correspondent for Ward’s Automotive and a former president of the Foreign Correspondents’ Club of Japan.