12 April 2014

US Still Seething Over WIPO ‘Computers for Commies’ Deal?

IBM PC 5150Fox News has reported that World Intellectual Property Organization (WIPO) Deputy Director General Jim Pooley has filed a ‘Report of Misconduct’ with the legislative branches of WIPO, and with the US Mission in Geneva.  Pooley, who is the most senior US official at WIPO, has reportedly accused Director General Francis Gurry (an Australian national) of ‘serious misconduct’ and ‘violations of national and international law’.

The allegations made by Mr Pooley are not new, and relate primarily to Mr Gurry’s supposed involvement in a ‘scheme to illegally acquire DNA samples of WIPO employees’ as part of an investigation by Swiss authorities into anonymous letters he had received prior to his election as Director General.  I have written before about these allegations, back in December 2013, at which time Gurry was nominating against three other candidates for a second six-year term as WIPO Director General.  Several members of the US Congress – including both Republicans and Democrats – had written to Secretary of State John Kerry, urging the Obama Administration to support an alternative candidate for Director General in light of the growing ‘scandals’ engulfing Gurry.

At the time, I speculated that the main problem US politicians had with Gurry was not the conduct of a criminal investigation that took place five years earlier, but his more recent involvement in a WIPO program to ship ‘high-end computers’ and other electronic equipment to North Korea and Iran, along with ‘secret agreements’ to open satellite offices of WIPO in Russia and China.  But, as I also said in my earlier article, WIPO is not an arm of the US government, and it is not WIPO’s mission to enforce US foreign policy or to further US interests in the world.

Recent Developments

Since last December, events have not panned out well for the anti-Gurry lobby in the US.  Last month, Francis Gurry was comfortably nominated for a second term as Director General.  Indeed, after receiving more than 50% of the available votes in a first round of a ‘knock-out’ voting process, the remaining two alternative candidates withdrew, making Gurry a ‘consensus nominee’.

There is, however, one final hurdle to Gurry’s reappointment, albeit one that is widely considered to be a formality.  On 8-9 May 2014, the General Assembly of the United Nations is due to meet in order to confirm the nomination.  Until that occurs, Gurry’s reappointment is not complete.

Meanwhile, one of Gurry’s own deputies, US national Jim Pooley, has filed his ‘Report of Misconduct’.  I have seen a copy of the document, and it is quite extraordinary.  (It was briefly published elsewhere in the blogosphere, but the article and Report have since been taken down.)  It is 13 pages in length, plus a number of annexures comprising ‘evidence’ of the alleged misconduct.  And it is no doubt considered confidential, so you will not be reading it here!

Allegations of Misconduct

Pooley’s report focuses primarily on the 2008 DNA ‘scandal’ in which, so the story goes, personal items were removed from the offices of a number of WIPO employees by a member of the organisation’s security staff, and provided to Swiss police for DNA and fingerprint analysis.  At the time, the police were engaged in a criminal investigation relating to anonymous and defamatory letters regarding Francis Gurry and his wife that had been delivered to various people at WIPO.  The Swiss police could not conduct this aspect of the investigation directly themselves because, as UN employees, the WIPO staff enjoyed immunity, and Gurry’s predecessor, Kamil Idris, had denied a request for access by the police.

In his report, Pooley characterises these events as ‘theft’ of DNA, and a ‘violation of fundamental human rights’ which would be particularly intolerable within a body of the organisation responsible for the UN Declaration on Human Rights.  He also characterises entry to the employees’ offices as a ‘break-in’, despite the fact that it seems unlikely that WIPO security staff would actually need to force entry into any part of the organisation’s quarters.

What is lacking in all of this, however, is any evidence that Gurry himself had any knowledge of these events, or any involvement in directing them.  Certainly he initiated the police investigation, by virtue of filing a criminal defamation complaint.  But everything else can be explained perfectly adequately by cooperation between the Swiss police and members of the WIPO security staff.  Allegations of Gurry’s involvement have been raised repeatedly since the events of 2008 took place, and none of the mud has yet stuck.

Lessons In Evidence

To my mind, however, the most extraordinary aspect of the Report is a section in which Pooley – whom Fox News describes as ‘a highly-regarded US patent lawyer’ – educates the recipients of the Report on the nature of evidence, and how a case is built.

He explains that evidence comes in many forms, and describes documentary evidence, evidence of witnesses, and hearsay evidence (which, he says, can be evidence of pertinent facts and of the need to inquire further).

Pooley also explains the difference between direct evidence and circumstantial evidence.  He contends that in criminal cases direct evidence of the crime being committed is seldom available, and claims that most criminal convictions are based on circumstantial evidence which, he says, can be just as strong as, or even stronger than, direct evidence.

All of this, it seems to me, is intended to try to persuade readers of the Report to draw the inference, based on Pooley’s narrative of events and supporting documentation, that the only logical conclusion is that Gurry must have known about the ‘DNA theft’ and, indeed, was probably behind it.  Based on what I have seen, however, the case is entirely circumstantial – and weak, at that.  No reasonable jury could possibly convict under the criminal standard of proof, i.e. ‘beyond reasonable doubt’.

Requested Action

Pooley wants the Chairs of the General Assemblies and Coordination Committee of WIPO to demand immediate answers from Francis Gurry on these matters and other subsequent events.  If Gurry does not provide the requested answers, Pooley says that he should be required to step aside from his duties as Director General pending the outcome of an independent investigation.

While an investigation is underway, Pooley says that the duties of Director General should be carried out by a Deputy.  Not Pooley, of course – that would be inappropriate and, in any event, he intends to return to the private sector upon the expiry of his term as Deputy Director General in November 2014.  Also not Ms Binying Wang, whom Pooley alleges to have had possible involvement in the ‘DNA theft’, or at least to be a potential witness in any investigation.  (I am sure that Mr Pooley is not at all influenced by her being a Chinese national.)  Pooley’s nomination for the role is Mr Christian Wichard of Germany, who is currently Deputy Director General, Global Issues Sector.

Conclusions… Draw Your Own?

So, to recap:
  1. numerous US members of Congress have expressed opposition to Francis Gurry continuing as WIPO Deputy Director General, largely due to his oversight of UN assistance programs to North Korea and Iran, and his building of closer ties with China and Russia;
  2. despite calls for the Obama Administration to back an alternative nominee, this did not happen, and Gurry was nominated comfortably and, in the end, virtually unopposed;
  3. with just weeks to go before the nomination is expected to be confirmed, a US official at WIPO – one of Gurry’s deputies, no less – makes a formal written Report of Misconduct, seeking to launch an investigation making Gurry’s continuing occupation of the position of Director General untenable, and suggesting that he be replaced by his German deputy.
I know what I think is going on here.  You can draw your own conclusions.

Photo By Ruben de Rijcke [CC-BY-SA-3.0], via Wikimedia Commons

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