In her ruling that Michael and Peter Taylor should be extradited to Japan to face charges of enabling the escape of the fugitive former Nissan boss Carlos Ghosn, a judge has made short shrift of evidence about the Japan justice system’s maltreatment of Ghosn’s former colleague Greg Kelly.
Kelly, an American national and former Nissan executive who is currently on trial in Japan, has been accused of helping conceal nearly $90 million (¥9.3 billion) in deferred compensation to be paid to Ghosn upon his retirement.
A problem with that charge, among others, is that the two highest-ranking Japanese members on Nissan’s board knew about the scheme (one of them according to court testimony earlier this month) and weren’t charged.
Three US senators, Marsha Blackburn and Lamar Alexander of Tennessee and Roger Wicker of Mississippi (Nissan has plants in both states), wrote an opinion column about Kelly’s plight last March. (Alexander retired from the Senate earlier this month.)
Wicker separately took to the Senate floor on September 30 and delivered a scathing rebuke of Japan’s “hostage justice” system and the “cruelty” shown Kelly upon his incarceration, an address that can be found in the Congressional Record.
Neither document was mentioned in the January 28 ruling by Judge Indira Talwani of the US District Court for the District of Massachusetts. Instead she justified her decision by arguing that the Taylors hadn’t demonstrated that – were they to be remanded to Tokyo prosecutors and the Japanese criminal justice system – they would experience “severe” physical or mental suffering, in her mind the criterion for “torture.”
Their legal team has argued – based on a common-sense reading of the United Nations convention against torture, to which both Japan and the US are signatories, which makes no distinction between “severe” and “not severe” – that the Taylors will be tortured if they are extradited to Japan.
The Taylors have been accused by Tokyo prosecutors of helping Ghosn, the former head of Nissan, Renault and Mitsubishi Motors, to escape from house arrest in Japan in late December 2019.
Talwani did not dispute that “prison conditions in Japan may be deplorable” and “criminal procedures may not satisfy American notions of due process.” She didn’t think it was relevant. Think about that.
She also showed almost no interest in the big picture of the case – that Tokyo prosecutors, who made the request to extradite the Taylors, are neck-deep in the conspiracy to oust Ghosn as CEO of Nissan.
And it’s clear, based on a close reading of the court filings, that the case against Peter Taylor, Michael’s son, is based almost entirely on circumstantial evidence .
The Taylors, who have languished in a Massachusetts jail for eight months, have one more Hail Mary. They are planning to file an appeal. But short of a favorable appeals court ruling, they could be on a plane to Japan in seven days, I’ve been told.
Having addressed the questions of jurisdiction and scope of review, the court finally turns to the merits of the Taylors’ claims, and reviews (1) whether the Secretary considered the Taylors’ claim and determined that it is not “more likely than not” that they will face torture if extradited to Japan, and, if so, (2) whether the Taylors have demonstrated that no reasonable factfinder could find other than that they are more likely to face torture than not.
The State Department’s regulations implementing the United States’ obligations under the Convention Against Torture state that:
In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe physical pain or suffering;
(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. 22 C.F.R. § 95.1(b)(2).
The regulations go on to explain that “[n]oncompliance with applicable legal procedural standards does not per se constitute torture” and that “[t]orture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment.” 22 C.F.R. §§ 95.1(b)(3), (b)(7).
In accordance with the Convention Against Torture and the procedures set forth in State Department regulations, the Deputy Secretary determined that the surrender of the Taylors for extradition was not more likely than not to result in their being tortured in Japan. Declaration of Deputy Secretary.
The burden therefore shifts to the Taylors to demonstrate that no reasonable factfinder could have made this determination.
The Taylors have submitted multiple exhibits purporting to demonstrate that they are “more likely than not” to be tortured if extradited to Japan. Many of these exhibits are news articles and reports discussing the Japanese criminal justice system’s use of prolonged pretrial confinement and interrogation to coerce confession. See, e.g., AP News Article [#59-8]; BBC News Article [#59-9]; Reuters Article [#59-15].
There are also accounts claiming that Japanese prisons often place detainees in small cells, fail to provide adequate heating, dim the lights but never fully turn them off, and lack Western-style bedding. See Reuters Article [#59-15]; Gohsn Declaration [#61-2]; McIntyre Declaration [#61-3].
But although the prison conditions in Japan may be deplorable and although the criminal procedures that the Taylors may be subjected to may not satisfy American notions of due process, those allegations do not constitute the “severe physical or mental pain or suffering” contemplated by the enacting regulations.
The Taylors have not claimed that they are more likely than not to suffer “severe physical pain and suffering,” to be subjected to “procedures calculated to disrupt profoundly the senses or the personality,” or to be threatened with death. See 22 C.F.R. § 95.1(b)(2).
They have therefore failed to establish that no reasonable factfinder could find anything other than that they are more likely than not to be subjected to torture in Japan. This ends the court’s inquiry.
IV . Conclusion
Accordingly, the Taylors’ Second Petition for Writ of Habeas Corpus is DENIED, and the Emergency Stay is lifted.
IT IS SO ORDERED. January 28, 2021
United States District Judge
Roger Schreffler is a veteran correspondent for Ward’s Automotive and a former president of the Foreign Correspondents’ Club of Japan.