[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ESTABLISHING ACCOUNTABILITY AT THE WORLD INTELLECTUAL
PROPERTY ORGANIZATION: ILLICIT TECHNOLOGY
TRANSFERS, WHISTLEBLOWING, AND REFORM
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH,
GLOBAL HUMAN RIGHTS, AND
INTERNATIONAL ORGANIZATIONS
THE
SUBCOMMITTEE ON
THE MIDDLE EAST AND NORTH AFRICA
AND THE
SUBCOMMITTEE ON ASIA AND THE PACIFIC
OF THE
COMMITTEE ON FOREIGN AFFAIRS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 24, 2016
__________
Serial No. 114-199
__________
Printed for the use of the Committee on Foreign Affairs
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COMMITTEE ON FOREIGN AFFAIRS
EDWARD R. ROYCE, California, Chairman
CHRISTOPHER H. SMITH, New Jersey ELIOT L. ENGEL, New York
ILEANA ROS-LEHTINEN, Florida BRAD SHERMAN, California
DANA ROHRABACHER, California GREGORY W. MEEKS, New York
STEVE CHABOT, Ohio ALBIO SIRES, New Jersey
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
MICHAEL T. McCAUL, Texas THEODORE E. DEUTCH, Florida
TED POE, Texas BRIAN HIGGINS, New York
MATT SALMON, Arizona KAREN BASS, California
DARRELL E. ISSA, California WILLIAM KEATING, Massachusetts
TOM MARINO, Pennsylvania DAVID CICILLINE, Rhode Island
JEFF DUNCAN, South Carolina ALAN GRAYSON, Florida
MO BROOKS, Alabama AMI BERA, California
PAUL COOK, California ALAN S. LOWENTHAL, California
RANDY K. WEBER SR., Texas GRACE MENG, New York
SCOTT PERRY, Pennsylvania LOIS FRANKEL, Florida
RON DeSANTIS, Florida TULSI GABBARD, Hawaii
MARK MEADOWS, North Carolina JOAQUIN CASTRO, Texas
TED S. YOHO, Florida ROBIN L. KELLY, Illinois
CURT CLAWSON, Florida BRENDAN F. BOYLE, Pennsylvania
SCOTT DesJARLAIS, Tennessee
REID J. RIBBLE, Wisconsin
DAVID A. TROTT, Michigan
LEE M. ZELDIN, New York
DANIEL DONOVAN, New York
Amy Porter, Chief of Staff Thomas Sheehy, Staff Director
Jason Steinbaum, Democratic Staff Director
------
Subcommittee on Africa, Global Health, Global Human Rights, and
International Organizations
CHRISTOPHER H. SMITH, New Jersey, Chairman
MARK MEADOWS, North Carolina KAREN BASS, California
CURT CLAWSON, Florida DAVID CICILLINE, Rhode Island
SCOTT DesJARLAIS, Tennessee AMI BERA, California
DANIEL DONOVAN, New York
Subcommittee on the Middle East and North Africa
ILEANA ROS-LEHTINEN, Florida, Chairman
STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida
JOE WILSON, South Carolina GERALD E. CONNOLLY, Virginia
DARRELL E. ISSA, California BRIAN HIGGINS, New York
RANDY K. WEBER SR., Texas DAVID CICILLINE, Rhode Island
RON DeSANTIS, Florida ALAN GRAYSON, Florida
MARK MEADOWS, North Carolina GRACE MENG, New York
TED S. YOHO, Florida LOIS FRANKEL, Florida
CURT CLAWSON, Florida BRENDAN F. BOYLE, Pennsylvania
DAVID A. TROTT, Michigan
LEE M. ZELDIN, New York
------
Subcommittee on Asia and the Pacific
MATT SALMON, Arizona Chairman
DANA ROHRABACHER, California BRAD SHERMAN, California
STEVE CHABOT, Ohio AMI BERA, California
TOM MARINO, Pennsylvania TULSI GABBARD, Hawaii
JEFF DUNCAN, South Carolina ALAN S. LOWENTHAL, California
MO BROOKS, Alabama GERALD E. CONNOLLY, Virginia
SCOTT PERRY, Pennsylvania GRACE MENG, New York
SCOTT DesJARLAIS, Tennessee
C O N T E N T S
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Page
WITNESSES
Mr. James Pooley, attorney at law (former Deputy Director for
Innovation and Technology, World Intellectual Property
Organization).................................................. 8
Ms. Miranda Brown (former Strategic Adviser to the Director
General, World Intellectual Property Organization)............. 23
Mr. Matthew Parish, founder and managing director, Gentium Law
Group.......................................................... 39
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. James Pooley: Prepared statement............................. 11
Ms. Miranda Brown: Prepared statement............................ 27
Mr. Matthew Parish: Prepared statement........................... 41
APPENDIX
Hearing notice................................................... 62
Hearing minutes.................................................. 63
The Honorable Ileana Ros-Lehtinen, a Representative in Congress
from the State of Florida, and chairman, Subcommittee on the
Middle East and North Africa: House Committee Foreign Affairs
letters regarding the World Intellectual Property Organization. 64
The Honorable Christopher H. Smith, a Representative in Congress
from the State of New Jersey, and chairman, Subcommittee on
Africa, Global Health, Global Human Rights, and International
Organizations:
Prepared statement of the Government Accountability Project.... 71
Letter from the World Intellectual Property Organization to the
Honorable Edward R. Royce, a Representative in Congress from
the State of California, and chairman, Committee on Foreign
Affairs...................................................... 77
Letter from Gentium Law to His Excellency Gabriel Duque,
Ambassador and Permanent Representative, Permanent Mission of
Colombia..................................................... 82
Mr. James Pooley: Memo from Mr. Pooley to Mr. Francis Gurry...... 85
ESTABLISHING ACCOUNTABILITY AT THE WORLD
INTELLECTUAL PROPERTY ORGANIZATION: ILLICIT
TECHNOLOGY TRANSFERS, WHISTLEBLOWING, AND REFORM
----------
WEDNESDAY, FEBRUARY 24, 2016
House of Representatives,
Subcommittee on Africa, Global Health,
Global Human Rights, and International Organizations,
Subcommittee on the Middle East and North Africa, and
Subcommittee on Asia and the Pacific,
Committee on Foreign Affairs,
Washington, DC.
The subcommittees met, pursuant to notice, at 2:03 p.m., in
room 2172 Rayburn House Office Building, Hon. Christopher H.
Smith (chairman of the Subcommittee on Africa, Global Health,
Global Human Rights, and International Organizations)
presiding.
Mr. Smith. The hearing of the three subcommittees will come
to order. And thank you all for being here.
Our hearing today shines a spotlight on an organization
that is a critical component of a global system of intellectual
property and patent protection, the World Intellectual Property
Organization or WIPO. It is an organization that,
unfortunately, appears to have lost its way under its current
Director General Francis Gurry, and is in need of major reform.
We will hear from very courageous whistleblowers today who
will relate how they uncovered illicit transfers of technology
to rogue nations such as North Korea, and to friendly nations
like Japan, and how WIPO, under Director General Gurry,
unbeknownst to member states, cuts deals with China and Russia
to open offices in those countries, potentially putting our
intellectual property at risk.
This hearing is thus about national security as much as the
importance of sound governance and oversight. China, for
example, has notoriously a bad record on protecting
intellectual property rights, and WIPO ought to be part of the
solution. Parenthetically, you may know that I serve as
chairman of the Congressional-Executive Commission on China.
Senator Marco Rubio is co-chairman. Ominously, the Commission's
latest annual report, released last October, concluded that
human rights violations have significantly worsened and were
broader in scope than at any other time since the Commission
was established in 2002.
Last week I traveled to China on a mission to promote human
rights, the rule of law, including intellectual property
rights, and democracy. In China I met and argued with
government leaders and had the privilege of delivering a
keynote address at NYU-Shanghai. As I think many of us have
come belatedly to understand, hopes in the 1990s that China
would eventual and inevitably matriculate from dictatorship to
a democracy hasn't even come close to materializing.
The Commission pointed out that U.S. companies face
significant difficulties related to intellectual property
rights in China. And, of course, China is not the only place
where these problems exist and persist.
Two of our witnesses, Jim Pooley and Miranda Brown, will
recount what they saw at WIPO and what happened when they
sought to bring to light what they saw. It is not a pretty
story but it is one I will leave to them to explain in their
own words. It is the personal aspect of governing from
oversight that we all want to emphasize because it is at the
heart of the story we will hear revealed in this afternoon's
hearing, a human drama about brave individuals who, at great
personal cost to themselves and their country, saw wrongdoing
and decided to do something about it.
Today's hearing is timely as well as topical, as there has
been an internal investigation of WIPO by the U.N.'s Office of
Internal Oversight Services into the allegations of wrongdoing.
The results of this investigation are currently before the
chairman of WIPO's General Assembly. This is a General Assembly
of member states, including the United States, based in Geneva.
It is incumbent upon the General Assembly Chairman Gabriel
Duque of Colombia that he act upon this report and share it
with member states and make it publicly available.
We also call upon our own State Department to follow up on
this and to be persistent in pushing full reform, transparency,
and accountability at WIPO.
I would point out that this is the first in a series of
hearings. And our next witnesses we hope will be the State
Department.
Today's hearing will have reverberations beyond WIPO, for
there appears to be a culture of corruption at many
international organizations, not only at WIPO. We hear
revelations, for example, about FIFA and world soccer and how
the serpent of corruption wriggles its way even into the world
of sports, undermining the nobility of athletic competition. We
hear of the sexual exploitation of minors occurring in U.N.
peacekeeping missions.
I would note, parenthetically, I have chaired three
hearings on that issue and traveled to D.R. Congo to
investigate personally this issue of peacekeepers raping little
girls and boys and then being not part of the protection force.
This hearing is the first in what will be a series of
hearings that this Congress will hold to focus on the need for
reform at the U.N. and its institutions. And the next will be
with the State Department, we hope, and on U.N. peacekeepers
and the issue of exploitation and abuse.
We do believe that by shining a light we can help victims
and help the corruption come to an end, bringing healing and
true reform. Organizations such as WIPO are too important to be
abandoned. It is essential that we conduct vigorous oversight
and demand accountability to help refocus this organization on
fulfilling its vital mission.
Finally, I would like to thank the other chairs for joining
this hearing. This is a group effort, three subcommittees.
Frankly, it is unprecedented to have three subcommittees;
sometimes two, but not three. Our distinguished Chairwoman Ros-
Lehtinen, Chairman Salmon, of course our ranking members, Ms.
Bass, Mr. Deutch, and Mr. Sherman. This is an important hearing
and we look forward to our distinguished witnesses.
I would like to now yield to Ms. Bass for any opening
comments.
Ms. Bass. Thank you, Mr. Chairman. I would like to welcome
the witnesses to this joint hearing, and note that I look
forward to hearing from each of you.
I would also like to underscore my support for
whistleblower protections. Let me say that intellectual
property rights are important, not only to my constituency in
Los Angeles in the State of California, but the country as a
whole. Intellectual property rights are legal, private,
enforceable rights that governments grant to inventors and
artists. Intellectual property is and of itself essential to
the growth and vitality of our economy and the sustainability
of our competitive edge worldwide. The role played by WIPO is,
therefore, also critically important.
I would also like to note that intellectual property is
increasingly important to the continent of Africa. Last year in
Senegal the Africa Union organized a conference on intellectual
property in coordination with WIPO, the Government of Senegal,
the Government of Japan, and African Union member states.
Building on earlier AU conferences on the topic, the Conference
on Intellectual Property for an Emerging Africa emphasized the
strategic use of intellectual property in achieving the goals
of the AU's strategic agenda for 2063. This is a critical step
in the right direction for the continent and, frankly, for the
United States.
I can definitely speak to the importance of intellectual
property issues to my district in Los Angeles, which is home to
Sony and Fox and hundreds of other studios and entertainment
industry-related businesses. In Nigeria, Nollywood, the highly
acclaimed movie industry, is a source of major revenue. This
revenue can be doubled and tripled as jobs and apprenticeships
are created and maintained. This is a burgeoning industry that
can even be more effective with a greater focus on intellectual
property rights.
The same can also be said for the movie, music, and
television industries in South Africa, Kenya, Ghana, and many
other venues. Not only is there potential opportunity for
cooperation and collaboration regionally, but internationally
with and, for example, of course the United States. This is why
the effective operation of WIPO remains so important both
domestically and internationally.
And in our subcommittee, Africa is one of the main issues
that is covered. So when the chairman mentioned that there will
be future hearings, I look forward to focusing on the
continent. Thank you.
Mr. Smith. Thank you, Ranking Member Bass.
It is now a distinct privilege to recognize the chairwoman
emeritus of the full committee and now chairwoman of the Middle
East and North Africa Subcommittee, Ileana Ros-Lehtinen.
Ms. Ros-Lehtinen. Thank you so much, Chairman Smith and
Chairman Salmon, as well as the ranking members Ms. Bass and
Mr. Sherman for bringing to our subcommittees this important
hearing. And a special thank you to our esteemed witnesses.
Mr. Pooley and Dr. Brown are two brave whistleblowers who
have sacrificed much in their personal and professional lives
in order to shed light on the misconduct of the World
Intellectual Property Organization (WIPO) and its Director
General. I am grateful to you both for being here to finally
give your testimony today. This has been a long time coming.
And I also want to thank Mr. Parish for being here to
represent the views of the WIPO Staff Council. It is about time
that all your voices and the truth are heard.
When I first began investigating WIPO's illegal transfers
of technology to Iran and North Korea almost 4 years ago, our
committee could not have known to the extent that the WIPO's
misconduct took. We were just scratching the surface. We also
could not have known to what length the Director General Gurry
would go to silence his critics.
Upon learning in 2012 that WIPO was secretly transferring
high tech U.S.-origin computers, programs and equipment to Iran
and North Korea, technology with clear dual-use benefits to
those regimes, I wrote to then Secretary of State Hillary
Clinton raising concern about these violations. In my letter I
informed the Secretary that the committee was opening an
investigation into the matter and I requested that the
administration freeze all U.S. contributions to WIPO until we
were given complete and unfettered access to relevant documents
and witnesses without fear of retribution or retaliation until
the committee and the State Department both finished their
investigations, and until all those responsible at WIPO were
held accountable.
These illegal transfers violated WIPO rules and which
require prior disclosure to member states before authorization.
If known ahead of time, WIPO member states and, undoubtedly,
U.S. representatives to the organization would have objected
due to national security concerns. Even worse, these transfers
violated both U.S. sanctions and U.N. Security Council
resolutions, laws designed to prevent the regimes in Tehran and
Pyongyang from getting their hands on dual-use technologies.
A few days later, after some preliminary fact finding and
inquiries with WIPO staff, the committee's ranking member at
the time, Congressman Howard Berman of California, and I sent
multiple letters to the Director General himself and followed
up with his office and through the State Department. We were
appalled at Gurry's lack of accountability and transparency and
his lack of judgment at attempts at keeping these illegal
transfers secret, and the lack of any kind of consultation with
the Security Council, and his failure to properly control
sensitive dual-use technology. Absolutely appalling.
We were outraged by Gurry's disgusting intimidation and
retaliation against whistleblowers. And because WIPO depends on
patent application fees, of which more come from the U.S. than
any other country, we were also disturbed that WIPO was
effectively using fees paid by U.S. inventors to fund a secret
and illegal transfers to Iran and North Korea.
We strongly urged Gurry to change course, to uphold his
commitments as an official of an international organization, to
commission an independent external investigation into the
matter, and to provide WIPO stakeholders with access to all
documents and witnesses while fully protecting whistleblowers.
During this process Congressman Berman and I invited three
of the whistleblowers, two of whom are with us today, to
testify before our committee, only to be denied permission by
Mr. Gurry through his legal counsel. Their names were then
leaked to the press, further underscoring the Director
General's intimidation tactics, his imperious management of
WIPO employees, and his outright manipulation of the
investigations. Day after day, month after month Mr. Gurry
failed to provide access to key documents, denied interviews
with key witnesses, and even sought to interfere with the State
Department's cooperation with our committee.
In the years following we learned even more about Gurry's
misconduct, including secret agreements to Gurry's efforts to
open satellite offices in China and Russia, two of the world's
most notorious cyber criminals and thieves of intellectual
property.
Last year Chairman Smith and I sent our staff to Geneva to
meet with Dr. Brown and WIPO officials, and they discussed
these new offices in more detail. Hosting WIPO offices in these
countries poses an enormous security risk for the confidential
and proprietary information included in patent applications,
and further damages the credibility of WIPO, whose mission is
supposed to be about protecting intellectual property, not
destroying it.
We learned from our witnesses about Gurry's potential vote
buying and nepotism, about his proposal for a WIPO satellite
office in Iran, about his involvement in the theft of WIPO
employees' personal items to extract their DNA, and about his
retaliation against Mr. Pooley and Dr. Brown, as well as the
eventual firing of Mr. Moncef Kateb, the former president of
the WIPO Staff Council.
But despite multiple letters that other members and I sent
to Secretary Kerry expressing our dismay and concern about
Gurry's potential reelection as Director General, the State
Department did nada, zilch, zip, nothing to block it, and he
was reelected to another 6-year term in 2014.
The State Department finally woke up to Gurry's repulsive
behavior last year when it decided to withhold a portion of
U.S. contributions to WIPO for its violation of U.S.
whistleblower protections. But that is not nearly enough to
demonstrate a commitment to the whistleblowers and the
dedicated public servants who believe in the mission of the
United Nations agencies at which they work but are paralyzed by
corrupt officials that run them. And it is not nearly enough to
deter the Director General and others like him in the broken
U.N. system from continuing to engage in disgraceful and
dangerous behavior.
I know that our witnesses have some excellent
recommendations for both Congress and the State Department on
reforming WIPO and the entire U.N. I look forward to hearing
from them and discussing how we can not only make these U.N.
agencies more transparent and accountable, but ensure that they
are protecting their employees and working toward the mission
for which they are funded.
And with that, Mr. Chairman, I would like to ask for
unanimous consent to insert into the record the letters that we
have written from this committee sent on this important matter.
I would also like to thank our former Ranking Member Howard
Berman for his leadership on this issue, as well as the
committee staff who led the effort into the initial
investigation, Dr. Yleem Poblete, our former staff director of
the committee, Harold Rees, the former chief investigator of
the committee, and Shana Winters, counsel for Mr. Berman.
Thank you, Mr. Chairman.
Mr. Smith. Without objection, so ordered.
Ms. Ros-Lehtinen. Thank you.
Mr. Smith. Thank you, Chairwoman Ileana Ros-Lehtinen for
not just the powerful statement but for all of the herculean
efforts of yours to date. And we have got to get success on
this. And again, our next hearing will be with the State
Department.
I would like to yield to Ranking Member Brad Sherman.
Mr. Sherman. Thank you. And I want to associate myself with
the gentlelady from California describing the importance of
intellectual property, not only in the United States but to
Africa and around the world. I am pleased to see that the
employees of this organization have a union. If I had to pick
an organization where employees needed a union to protect them,
this would be it.
And if I had to pick somebody who at least ought to be
paying his own parking tickets, it would be Francis Gurry.
This is an important international organization. We need to
safeguard intellectual property worldwide. We have got limited
leverage on WIPO because they get the vast majority of their
money from fees. And we are withholding 15 percent of our
contribution, but we are talking about roughly the same amount
a Member of Congress gets paid every year.
The technology transfer I look forward to finding out just
how critical it is. It is my understanding that what was
transferred is available on Amazon. But that doesn't mean that
it is entirely easy for Iran or North Korea to get their hands
on it. And I believe in a broken-window approach to law
enforcement we have got, we ought to do everything we can to
enforce even the modest violations of sanctions.
This is not a well-run agency. It is not a good governance
system. I look forward to improving it. And I look forward I
hope, also, to seeing it do good work to protect the
intellectual property for which Karen's district and mine is
famous. And with that I yield back.
Mr. Smith. Thank you very much, Mr. Sherman.
I would like to now yield to the chairman of the
Subcommittee on Asia and the Pacific, Matt Salmon, for any
comments.
Mr. Salmon. Thank you, Mr. Chairman. I would like to
express my thanks to both you and Chairman Ros-Lehtinen for
holding this hearing with the Asia and Pacific Subcommittee. I
know that the Committee on Foreign Affairs has taken the lead
on this issue over the past several years.
We are here today to investigate concerns about the World
Intellectual Property Organization, or WIPO, its history of
transferring technology to rogue regimes like North Korea and
Iran, and its whistleblower protection policies. Today we seek
to unravel the events from the perspective of our insider
witnesses, determine the implications of technology transfers
to North Korea, and assess whether congressional action is
necessary to prevent this from happening again. I suspect that
it probably is.
In 2012 WIPO, a U.N. agency created in part to foster
innovation and promote the protection of intellectual property
throughout the world, sent very capable hardware, firewall and
network security appliances to North Korea without proper
consultation with U.N. sanctions committees. This meant
violating multiple U.N. security resolutions on North Korea.
Furthermore, the tech transfer provided the regime with
technology that North Korea could not have purchased on its
own, due to U.S. domestic restrictions.
Worse, it was not the first time. An independent external
review report found that the history of deliveries of
information technology hardware and software to North Korea
dated back to at least the year 2000. Since 2006, the report
continues, WIPO has provided North Korea with three deliveries,
including servers, computers, notebooks, software, printers,
and accessories. The report also noted that prior to 2012, WIPO
had no procedure in place to review whether technology
transfers and shipments to countries like North Korea would
potentially violate U.N. sanctions. That to me is unfathomable
and unconscionable.
WIPO may still have been inconsistent in requesting reviews
of shipments to countries subject to U.N. sanctions. It should
be a reasonable expectation that a U.N. body would follow U.N.
Security Council resolutions. I don't think that is outlandish.
WIPO's transfer of dual-use technology and software to North
Korea should have undergone at least some level of scrutiny.
The risk that North Korea could use these technologies to
assist in its development of nuclear and missile capabilities
is a risk we don't want to take. The regime has already
conducted cyber attacks on foreign governments and
organizations, and it is totally unacceptable the WIPO might be
the organization that provided the computers from which they
conducted these attacks. We must ensure that we prevent these
mistakes from occurring again.
Now, we brought some very brave individuals here today who
have brought these issues to our attention. We may not have
learned of these activities if it weren't for these brave
people that are on our panel. And I commend them for their
efforts and for their courage. I know it is not easy to stand
up and do what you did.
I am proud to support whistleblowers, and firmly believe in
robust protections for all whistleblowers, as well as greater
transparency in all government agencies. I think that is what
the taxpayer and the people of the United States expect and
deserve. I look forward to hearing from our witnesses with
their first-hand knowledge on this issue, particularly as it
relates to North Korea.
I thank you and I yield back.
Mr. Smith. Thank you, Chairman Salmon.
I would like to now introduce our distinguished witnesses
beginning first with Mr. James Pooley, who recently completed a
5-year term as Deputy Director General of the World
Intellectual Property Organization, where he was responsible
for the management of the international patent system. Before
his service at WIPO, Mr. Pooley was a successful trial lawyer
in Silicon Valley for over 35 years, representing clients in
patent, trade secret, and technology litigation.
He currently provides litigation and management advice in
trade secret and patent matters and has taught at the
University of California, Berkeley. Mr. Pooley is author or co-
author of several major works in the intellectual property
field.
We will then hear from Dr. Miranda Brown who is a former
Australian Government official who joined the Australian
Department of Foreign Affairs and Trade and occupied a number
of positions in the Department before being appointed as the
Deputy Permanent Representative at the Australian Mission to
the U.N. in Geneva.
As Australian Deputy Permanent Representative in Geneva she
worked closely with Mr. Francis Gurry, the current Director
General of WIPO. She worked in support of his election campaign
in 2008. She later joined WIPO as the Strategic Advisor to the
Director General of WIPO in July 2011, and occupied this
position until November 2012.
We will then hear from Dr. Matthew Parish who is here today
because he serves as outside counsel to the WIPO Staff Council,
an organization that represents WIPO employees. He is an
international lawyer specializing in cross-border arbitration,
litigation and enforcement, international trade, foreign
investment, resource extraction and export, emerging markets,
and public international law.
Dr. Parish has represented clients across a wide variety of
industries, including shipping, international trade, energy and
infrastructure sectors, banking, insurance and financial
services, governments, and international organizations. He is a
fellow of the Chartered Institute of Arbitrators and accepts
appointments to sit as an arbitrator across Europe. He is also
founder and managing director of Gentium Law Group in Geneva.
Mr. Pooley, the floor is yours.
STATEMENT OF MR. JAMES POOLEY, ATTORNEY AT LAW (FORMER DEPUTY
DIRECTOR FOR INNOVATION AND TECHNOLOGY, WORLD INTELLECTUAL
PROPERTY ORGANIZATION)
Mr. Pooley. Thank you, Chairman Smith, and good afternoon
to you and good afternoon to Chairs Ros-Lehtinen and Salmon,
and to Ranking Members Bass, Deutch, and Sherman.
I had the privilege of serving at the World Intellectual
Property Organization and reported to Mr. Gurry from 2009 to
2014. Mr. Gurry is the most senior Australian national at the
U.N., and has been working at WIPO for over 30 years.
WIPO has a very serious governance problem. In effect, the
organization is run by a single individual. And this is
possible only with the tacit cooperation of the member states
that are supposed to act as WIPO's board of directors.
I will describe today just three examples of things that
Mr. Gurry did while I was there: First, his gift of powerful
computer equipment to North Korea; second, his secret
agreements with China and Russia to open offices, and; third,
his retaliation against whistleblowers.
In March 2012, I heard from my colleague here Dr. Brown
that the Bank of America had intercepted an international
payment intended by WIPO for the shipment of high-end U.S.-
origin computer equipment and an electronic firewall to North
Korea. I was very disturbed by this, in part because as a
lawyer I knew that this was dual-use technology that could not
go to North Korea without an export permit. But I was also
alarmed by the firewall because there was no reason that we
needed to give North Korea a firewall except for one, which was
to keep North Korean citizens from using that equipment to get
onto the Internet.
I went to Mr. Gurry and I asked him to reconsider. I
explained to him that in the U.S., where you can go to prison
for quite a number of years for doing what we had done here,
that it would be seen as unacceptable for a U.N. agency to be
doing the same thing. He told me that he didn't care what the
U.S. thought because WIPO didn't have to obey U.S. law.
This committee then started an investigation, or attempted
to. Mr. Gurry blocked the testimony by myself and Dr. Brown
and, as a result, the hearing for July 2012 was canceled.
Around that same time I understand that Mr. Gurry hired a DC
lobbying firm to help him with whatever U.S. political problems
he had. And in 2012, WIPO paid that firm $193,500. Now, that
money and the money that went to pay for the equipment that
went to North Korea was substantially from U.S. inventors and
their patent fees.
Second example: In 2013 I learned that Mr. Gurry had
entered into secret negotiations with China and with Russia for
the opening of satellite WIPO offices. We, on the senior
management team, learned about this only from articles in the
China Daily News and the Voice of Russia. And the resulting
controversy around this caused the breakdown of that year's
meeting of member states in October.
Shortly thereafter, in November, a bipartisan group of 12
Members of Congress sent a letter to Secretary Kerry asking
that the U.S. find someone else to support for the upcoming
election of Director General, it recited the problem with the
shipment to North Korea, the offices, and also the role that
Mr. Gurry had apparently played in the theft of DNA from staff
members and his later cover-up of the incident. Now, the
immediate response to this letter did not come from the State
Department but, rather, it came from Kim Beazley, the
Australian Ambassador to the U.S., who basically denied
everything and referred to the equipment that had been sent to
North Korea as standard office equipment.
In this, and in many other ways at that time, Australia
made it very clear that it wanted Mr. Gurry to be reelected and
as a result, the U.S. agreed to stand on the sidelines during
the election process.
Third example: In early 2014 I learned that Mr. Gurry had
interfered with an external effort to place a contract for a
competitive bid on an IT matter by directing that the contract
be awarded directly to a company in Australia run by a friend
of his. And when I learned this I reported that and the DNA
theft to the chair of the WIPO General Assembly. The
retaliation against me was both swift and hard. Mr. Gurry had
the chief legal officer of WIPO threaten me and a U.S.
journalist who had written an article about my complaint, who
was told that he faced criminal prosecution in Switzerland if
he did not immediately take down the article and issue a
personal apology to Mr. Gurry.
There was condemnation from the international intellectual
property community about this but the State Department made no
public statement. And 3 weeks later the member states of WIPO
gathered and elected by consensus Mr. Gurry to another 6-year
term.
The retaliation continued. And so, as required, I reported
it to WIPO's chief ethics officer Avard Bishop, who told me,
unsurprisingly, that there was nothing that could be done about
it. Indeed, Mr. Bishop had come to me in confidence not long
before to describe to me how he believed his entire job was
hopeless under the circumstances. And I am sad to report that 3
months later he committed suicide.
Mr. Gurry's replacement chief ethics officer dithered with
my complaint for retaliation for 6 months, eventually deciding
that WIPO could do nothing with my complaint because by that
time my term was over and I was no longer a WIPO employee. And
he specifically refused to allow external arbitration of the
sort that is required by the Budget Act of this Congress.
In the meantime, the investigation into my original
allegations was started, but it was halted in the fall of 2014
by Mr. Gurry. Now, the U.S. objected strongly to that.
Eventually, last May the investigation was restarted by an
internal organ of the U.N. and my understanding is that that
investigation has been completed. But try as hard as I have, I
have not been able to find out exactly who has the report and
what it says.
Any one of these three behaviors as examples that I have
given you--and there are more--in a private company or in a
public institution would result in the executive being
dismissed by the board. In this situation, we collectively are
the board of WIPO. We can accept that countries act in their
national interests, but we should not accept that the U.S.
stand by or stand down while its national interests are
ignored, especially if they are interests like transparency and
good governance.
I also appreciate that there are competing geopolitical
concerns that weigh on the most senior officers of the State
Department. But in this case, when our good reliable ally
Australia came to us and asked us to be quiet, the right
response should have been, ``We understand, but we have
competing considerations that override your concerns.'' Now, I
believe that the State Department would benefit by having the
cover that would come from Congress making very clear and
strong what the priorities are, including proper governance and
the protection of whistleblowers. We would all benefit, I
believe, from the kinds of reforms that we have suggested in
our submitted statements.
So let me close here by observing, as President Reagan once
did, ``There are no easy answers, but there are simple answers.
We must have the courage to do what we know is morally right.''
Thank you.
[The prepared statement of Mr. Pooley follows:]
----------
Mr. Smith. Mr. Pooley, thank you very much for your
testimony and you and Dr. Brown for your courage in being so
steadfast over the course of so many years in making sure that
this information is made completely laid bare for all to see.
And we will follow up. And I thank you for it.
Dr. Brown, please provide your testimony.
STATEMENT OF MS. MIRANDA BROWN (FORMER STRATEGIC ADVISER TO THE
DIRECTOR GENERAL, WORLD INTELLECTUAL PROPERTY ORGANIZATION)
Ms. Brown. Good afternoon, Chairman, ranking members, and
members of the committee.
I will focus on what happened following my report to the
U.S. Government of WIPO's shipment of computers to North Korea,
my cooperation with this committee in 2012, and subsequent
retaliation against me as a whistleblower, as well as providing
information on what I believe is an ongoing pattern of abuse of
authority at WIPO.
On March 14, 2012, I received a phone call from a WIPO
staff member working in the procurement area who informed me
that there was a problem with a payment for a shipment of
computers to North Korea. At first I thought this was a joke,
but I soon realized that the staff member was serious, as he
explained that the U.S. Office of Foreign Assets Control, OFAC,
had blocked the WIPO/UNDP payment by the Bank of America for
the computers. At that stage it was not yet clear whether the
computers had already been shipped to North Korea and I decided
to immediately try to stop the transfer.
I called Mr. Gurry and expressed my very strong concerns
about WIPO engaging in any project with North Korea without
prior approval of the member states of WIPO, including the
U.S., and without clearance by the U.N. Security Council
Sanctions Committees. I informed him that OFAC had blocked the
payment for the equipment.
Mr. Gurry's response was profoundly disturbing. He said
that North Korea is a WIPO member state like any other and it
deserves technical cooperation. He also said that WIPO is not
bound by U.S. domestic or U.N. Security Council sanctions. I
advised him to immediately stop the project. He told me to go
and fix the payment problem.
I returned to my office and immediately called the U.S.
Mission in Geneva to report the situation. Later that day I
forwarded the email chain on the OFAC decision to the U.S.
Mission. The following day I obtained all the documents on the
project and provided these too to the U.S. Mission. It became
clear that sophisticated IT equipment, which was American
origin and which included high-end servers and firewalls, had
already been shipped to Pyongyang.
When I tried to find out more about the secret project,
WIPO staff told me that this was one of North Korea's requests
in exchange for supporting Mr. Gurry's election.
Soon after, I learned that----
Mr. Sherman. Could you repeat that sentence again?
Ms. Brown. When I tried to find out more about the secret
project, WIPO staff told me that this was one of North Korea's
requests in exchange for supporting Mr. Gurry's election.
Soon after, I learned that Mr. Gurry had approved a similar
project with Iran. I reported this and the documents to the
U.S. Mission too.
Then Mr. Kateb, acting as the president of WIPO's Staff
Council, demanded that these projects be examined by the U.N.'s
Office of Internal Oversight Service, OIOS, and by the U.N.'s
Joint Inspection Unit. And shortly thereafter, your committee
launched an investigation into the shipments. Mr. Gurry refused
to allow me to testify, and forbade me from cooperating with
this committee. Despite this, I provided this committee with
all relevant documents relating to the projects, and responded
to requests from staffers for further materials and
information.
At the time I reported the shipments, WIPO had no
whistleblower policy in place. I had to use my own judgment.
Had the member states been consulted on the North Korea project
and approved it? No.
Did the U.S. know about it? No.
Did the U.S. have a right to know that American IT
equipment had been shipped to North Korea in likely violation
of U.S. sanctions and national law? Yes.
Was this matter urgent? Yes.
Did I stop to think about whether WIPO had a whistleblower
policy in place and whether I should be protected--I would be
protected? No.
Retaliation was the last thing on my mind at that point. I
felt confident that the U.S. Government would use its
considerable influence to fully protect me for reporting secret
shipments of American IT equipment to North Korea. But, sadly,
the retaliation was severe. Mr. Gurry accused me of disloyalty
and of leaking documents to the U.S. Mission and to the media.
He told an Ambassador from a Western state that he would be
offering me a plea bargain whereby I would be exonerated from
any investigation into the so-called ``leaks'' in exchange for
the names of those WIPO staff with whom I had shared the North
Korea and Iran project documents. The names apparently included
Mr. Pooley, Mr. Kateb, the president of the WIPO Staff Council,
and others whom he apparently wanted to purge from the
organization.
If I signed the plea bargain I would not be suspended or
placed under investigation for the ``leaks.'' Of course I could
not sign any plea bargain and expose my colleagues to certain
disciplinary sanctions, so I went on extended medical leave for
stress.
When I returned to work, Mr. Gurry immediately resumed the
retaliation against me. And in an apparent test of my loyalty
to him, he ordered that I work on another secret project, this
one to establish WIPO external satellite offices, including in
Beijing and Moscow. He expressly forbade me from talking with
any member state and insisted on total secrecy. I again
informed the U.S. and other member states.
When I protested about the secrecy of this project, Mr.
Gurry told me that he would not be renewing my contract, which
was not due to expire for 7 months, on the basis that I was
disloyal and too close to the member states, and in particular
the U.S., and because I had cooperated with this committee.
Given this, I had no option but to leave WIPO. I resigned under
duress and took a lower-level position in another organization.
International organizations must balance the need for
confidentiality with transparency. There is no Freedom of
Information Act and member states must rely on the integrity
and good faith of the U.N. agency head, in the case of WIPO,
the Director General, to run the organization in an open and
transparent manner, with the member states being consulted on
all aspects of the organization's work.
Mr. Gurry's leadership of WIPO is sadly characterized by
secrecy and also an extraordinary vindictiveness toward
whistleblowers. He apparently sees the organization and its
resources as his personal fiefdom, and he expects staff to
demonstrate their absolute loyalty toward him and not the
organization and its mandate.
The adoption of the WIPO whistleblower policy in November
2012 was a positive development, however, its implementation
has failed under Mr. Gurry's regime. More generally, U.N.
whistleblower protections fail where the allegations of
wrongdoing involve the U.N. agency head, because all of the
internal accountability mechanisms report directly to the U.N.
agency head.
Prior to leaving WIPO in November 2012, I blew the whistle
on what I strongly suspected was improper and possibly criminal
behavior on Mr. Gurry's part. Documents, including a hospital
report, indicated that Mr. Gurry was involved in a theft of
personal effects from WIPO staff and secret extraction of their
DNA. I requested an independent investigation into Mr. Gurry's
role but this was denied.
In February 2013, I filed a complaint with the U.N.
International Labor Organization Dispute Tribunal, which is a
staff tribunal, requesting that the tribunal overturn the
decision not to allow an investigation. Three years have
passed, and the tribunal has yet to consider my request for an
external investigation.
These allegations have now been examined by the U.N.'s
Office of Internal Oversight Services. And I was told that the
investigation report has been finalized and the report
transmitted to the chair of the WIPO General Assemblies,
Ambassador Gabriel Duque of Colombia. It's clear, based on the
investigation process, that the report contains adverse
findings against Mr. Gurry.
Mr. Kateb, who was fired by Mr. Gurry for his whistleblower
activities, and I remain without a job. We are both unemployed.
In October 2015, we sent a joint letter to Ambassador Duque
requesting our urgent reinstatement at WIPO. There has been no
response to date.
Both of us stood up for the interests of WIPO, the U.S.,
and the international community. If what happens to us goes
unchecked, no U.N. staff member will feel safe reporting
corruption at the top of the U.N. organization. Our cases will
sadly act as a very strong deterrent.
My motive for reporting the allegations of wrongdoing at
WIPO is, and always has been, to protect the organization. I
believe that my government, the Australian Government, has been
seriously misled by Mr. Gurry, as we all have been. In my
opinion, Mr. Gurry's leadership is dangerous to the
organization, and his ongoing tenure as Director General risks
further damaging not only WIPO but the U.N.'s reputation.
I thank you for inviting me here today.
[The prepared statement of Ms. Brown follows:]
----------
Mr. Smith. Thank you very much, Dr. Brown.
I would like to now yield to Dr. Parish.
STATEMENT OF MR. MATTHEW PARISH, FOUNDER AND MANAGING DIRECTOR,
GENTIUM LAW GROUP
Mr. Parish. Chairman, ranking members, and distinguished
members of the committee, thank you for the opportunity to
testify today on the lack of accountability at WIPO.
As you have learned from your investigation and from the
other witnesses, WIPO seems to have set a new low when it comes
to accountability and management of its affairs.
I am testifying in my capacity as private legal counsel to
the WIPO Staff Council. The Staff Council is the sole union
available to employees of the organization. The Staff Council
exists under purview of the rules and internal institutions
that the WIPO Director General controls. It is not an
exaggeration to say that members of the Staff Council live in
daily fear for their jobs and their careers.
The individual members of the Staff Council are effectively
prohibited from testifying here today because, as WIPO
employees, they are banned from providing testimony on matters
relating to whistleblowing or wrongdoing because their
employer, the Director General Francis Gurry, prohibits them
from doing so.
I wish to share with you my client's concerns about the
theft of staff personal effects and subsequent extraction of
those staff members' DNA without their consent. In essence, it
appears that Mr. Gurry unlawfully employed techniques
ordinarily reserved solely to Swiss law enforcement agencies
acting under a due warrant to attempt to determine the identity
or one or more WIPO employees critical of him. It has been
reported that he orchestrated raids of staff members' offices,
while they were not present, to achieve this goal.
Some of these allegations date back to 2008, and it took
substantial time before the Office of Internal Oversight
Service of the United Nations took the matter up. Officials of
the OIOS subsequently opened an investigation, reached
conclusions, and prepared a report. The report was copied, was
forwarded to the chair of the General Assemblies of WIPO, from
whom I have requested a copy. My reasoning was simple: If the
report exonerated Mr. Gurry, it is fair and proper to Mr. Gurry
that it be circulated and released so that his reputation might
be cleared.
But if the report criticizes Mr. Gurry, then it should be
released forthwith, subject to any redaction appropriate to
protect the identities of vulnerable witnesses. It should,
first and foremost, be released to the member states whose role
is to oversee the proper functioning of WIPO and of Mr. Gurry.
Only they can decide to sanction Mr. Gurry, dismiss him from
office, or waive his legal immunity from prosecution. They
cannot perform their oversight mandates without receipts of a
full copy of the report, as WIPO is required to do.
But the report should also be released to the Staff
Council, so that the more than 1,000 WIPO staff are informed of
the investigation's outcome. They have a right to know about
whether there is a conclusion that the Director General
violated their rights or otherwise acted in a manner
inconsistent with ethical management of the organization.
There is another issue I wish to share with the committee
today. The former chair of the WIPO Staff Council, Mr. Moncef
Kateb, was renowned as a severe critic of Director General
Gurry over several years. Unfortunately, he cannot be here
today. But I would like to say a few things about how he was
dismissed.
WIPO used to have a disciplinary regime for staff accused
of misconduct, in order to protect their rights and interests.
Last year, the entire system was dismantled by Mr. Gurry and
replaced with a system permitting him to suspend a staff member
without pay upon an accusation leveled by him. It might be fair
to classify this new system as a ``Court of Star Chamber,''
particularly where the sin of the staff member in question is
criticism of the Director General himself.
Mr. Kateb was among the first victims of this. He was
dismissed upon 7 days' notice on an absurd technicality. After
Mr. Kateb's dismissal, a new Staff Council was constituted.
Another arch-critic of Mr. Gurry was elected as Mr. Kateb's
successor by the members of the Staff Association. Now Mr.
Gurry is unilaterally changing the rules for Staff Council
elections, in order to force another election of staff members
to the Staff Council in an attempt to dislodge the new Staff
Council.
In view of the considerable power that the Director General
has over WIPO staff in terms of their job security, I had to
decide not to share drafts of my written testimony with the
WIPO Staff Council so that Mr. Gurry can't consider them to
have taken any individual actions that would lead him to
terminate them summarily from their jobs with WIPO, as he did
to Mr. Kateb, or to threaten them in other ways. That is the
state of employment with WIPO today.
The old adage that ``sunlight is the best disinfectant'' is
appropriate for the issues surrounding WIPO. The Congress is,
in my view, well-positioned to help generate the release of the
OIOS report and to provide greater transparency and
accountability into the operations of WIPO.
Thank you very much for listening to me today.
[The prepared statement of Mr. Parish follows:]
----------
Mr. Smith. Thank you very much, Dr. Parish.
Let me just begin the questioning. First, you know, to take
your last point first about trying and Congress generating some
pressure to release it, all of you might want to speak to what
the Congress might do. Should we be looking to a resolution,
for example, sense of the Congress or otherwise, calling on the
President to use his full voice and vote--our representative of
course at WIPO--to do just that?
I know you point out in your testimony that the Ambassadors
of the UK and the United States have asked by way of
correspondence, but a simple ask can be very easily ignored.
This ought to be a demand that is backed up by punch and by a
great deal of pressure just to get that report out. So that
would be number one.
Secondly, why hasn't the Obama administration been more
aggressive in trying to--I mean North Korea, you talk about
rogue states, there are few nations on Earth that are as
threatening as Pyongyang to the world, not just to South Korea,
but to the world--so why haven't they been more aggressive?
You might want to further detail what it is that was sent,
the servers and the like. What really did make its way to North
Korea?
The accusations made against WIPO are serious, including
vote buying by North Korea for the Director General, technology
transfers to Iran, of course North Korea, Cote D'Ivoire, DRC,
Iran, Iraq, Liberia, Libya, and Sudan. It was Dr. Brown who
said that WIPO is not bound by U.S. domestic and U.N. Security
Council sanctions. Are you kidding me? U.N. Security Council
sanctions don't apply to Mr. Gurry? I find that appalling. Is
that legal for him to suggest that? It would seem to me that it
applies to every player in the world. And this is a member
state organization, why wouldn't it apply to them, both U.S. as
well as U.N. Security Council resolutions?
I do have a number of questions but we do have a lot of
members here so I will just hold it to that for now and yield
to you for your response.
Mr. Pooley. If I may, Chairman Smith, I, there is perhaps
one of your questions I can't really answer because it is a
broad political one. I suppose we can speculate about why
certain actions were taken or not taken. But let me just say
that in my experience at Geneva, one thing I can tell you is
that the people that we have representing the United States
there are very fine professionals and represent the interests
of the United States very well.
I think the problem that we entered into in this broad
issue with WIPO came as a result of a miscalculation about what
our relationship with Australia really meant. And sometimes I
put it this way: Friends don't let friends drive drunk. You are
supposed to talk, in talking to a good friend, tell them the
bad news along with the good news.
And so I can only--I am not privy to the inside
conversations that they may have had, and there may have been
other issues. I don't know, but it sure felt like that to me.
Let me just say, I do believe that some sort of resolution by
Congress would be extremely helpful. Having spent 5 years in
Geneva talking with many diplomats from many other countries,
what I heard over and over again was: What is the United States
going to do? What does the U.S. think about this?
And for a lot of probably good reasons in certain
circumstances, our diplomatic representatives there are, well,
they are very diplomatic. And now and then if we think
something is very, very important, I think the representatives
of the American people here in Congress can have a voice heard
across the Atlantic in ways that may be more difficult to
ignore. And that is an example of the kind of cover that
Congress can give the State Department on matters of really
great importance.
So I can also, I think it would be helpful perhaps if I
responded on what the equipment was here, coming from Silicon
Valley. If anyone had come to me as a lawyer and said, I would
like to, I can buy these things. . . . They were a Hewlett-
Packard ProLiant DL360 G7 server which WIPO paid $7,845 for.
This is not something you get at Office Depot; right? A Hewlett
Packard Color LaserJet massive printer, almost $14,000; a 24-
terabyte disc array.
And remember, this was 4 years ago. Technology has come
pretty far since then. Back then a 24-terabyte disc array was a
massive storage device. And then, of course, there was the
SonicWall firewall which came, itself came in at almost $5,000.
That was the equipment. And, yes, I suppose it could have
been purchased in the U.S., but you can't buy it to send it to
North Korea. And if you did, you would go to prison for a long
time.
Mr. Smith. Before the other two witnesses answer, if you
could also answer the question, the lobbyist firm that was
hired, who is it? With whom did they meet? Was the pressure
primarily on the White House, the Congress? They certainly
didn't visit me as far as I know. If they did, I would have
showed them the door. Would have asked questions but shown them
the door, given what has to be a feeble response.
The Australians are very close friends and allies. I am
bewildered. I am shocked by this. In shock for many months, and
even years now. If you have a bad apple, you expunge the bad
apple. This is hurting their reputation. And, again, they are
good close friends.
And just for the record, too, I would just point out to my
colleagues, as they know, we did invite Francis Gurry to come
and brief us. It would be a briefing rather than a hearing,
pursuant to House rules. If he couldn't make it, we asked that
John Sandage come. We will repeat that over and over. We want
to hear from them and ask them honest questions and tough
questions.
So that will remain open, our door. All three of us want
them to come, our three subcommittees. But this lobby firm,
where did they put the pressure?
Mr. Pooley. Well that, Chairman Smith, I hope that if they
come you do ask them about that because, quite honestly, we
don't know and we can't find out. We didn't know, the U.S.
didn't know about WIPO spending this money on a lobbyist firm
here in DC until it was discovered by virtue of the lobbyist
disclosure regulations that apply here. And doing searches over
and over again for something about WIPO we finally found
something. And there it was, $193,000 paid to a company called
Manchester just in 2012.
Now, what actually happened as a result of that we have no
way of knowing. When Mr. Gurry sends somebody on an overseas
trip they are, of course, bound to absolute confidentiality.
And I am probably one of the last people they would report on
something like that.
So we, I would love to find out the answer to that
question.
Mr. Smith. And just to that final question, Dr. Brown,
about the Security Council sanctions not applicable as to WIPO;
how could that be?
Ms. Brown. Thank you. I think the point there is that in
the subsequent conversation with Mr. Gurry what he said was
that WIPO was not a member state, therefore it wasn't bound by
U.N. Security Council sanctions or resolutions.
I mean I, I am not a legal expert on this, but I have to
say that the intent of those resolutions is surely meant to be
binding on everybody, including the U.N. organizations.
And one point perhaps I could elaborate on is at the time
that these projects were taking place, the U.N. had gone
through some considerable soul searching about its relation to
engaging with North Korea. And, in fact, there had been an
inquiry. The Nemeth report had been issued. And from then on it
was determined that any engagement from the U.N. specialized
agencies, there would be a board essentially that would
establish the review projects, and the UNDP would administer
these projects.
And at that time the only projects that were really taking
place, the only U.N. projects taking place in North Korea were
very basic technical cooperation projects which related to seed
production, food production. And any equipment being taken in
by the U.N. was being closely monitored and had to come out at
the end of the project.
So this, this particular WIPO project was also in a way in
violation of the U.N.'s own structure that had been established
for North Korea.
Mr. Smith. Yes.
Mr. Parish. Sir, on the issue of sanctions, United Nations
sanctions, the entire analysis we have heard that came from Mr.
Gurry is obviously specious and fictitious as a matter of law.
It is completely absurd.
WIPO is a specialist agency of the United Nations. It is
designated as such, pursuant to treaty. The idea that an agency
of the United Nations can lawfully act as an agent for the
evasion of U.N. sanctions endorsed by the Security Council is
completely absurd. It is ridiculous. Nobody could defend that
for even 30 seconds. It is crazy.
One other comment, sir, on what Congress might do. We have
got to see this report. The report is being investigated. We
know that the investigators investigated it. We know the report
has been finished. We know it has been passed to Ambassador
Duque who is the chair of the WIPO General Assemblies. I have
asked him for it. He ignored me. I asked him again. He ignored
me. I asked his Foreign Minister. He ignored me. I have not had
any response whatsoever. This, everybody has been asking for
this report; nobody is getting it.
Where is it? Why can't we see it? I can't imagine of any
conceivable legal or policy reason for holding it back. And
there is nothing but a wall of silence.
Mr. Smith. Thank you.
Ranking Member Sherman.
Mr. Sherman. We seem to see the FIFA of U.N. agencies. I,
the only question from me is what should Congress do?
I sit here as ranking member of the Asia and Pacific
Subcommittee. First, I joined with colleagues here to introduce
a resolution demanding audit, disclosure and a copy of this
report. The question is, do we go further than that and
explicitly say in the resolution that Gurry should resign?
Based on what I have heard here, I am happy to throw that into
the resolution.
But then, and this comes before our subcommittee, should we
explicitly criticize the Government of Australia for sticking
the world with this person? Dr. Brown.
Ms. Brown. Thank you very much. I think the Australian
Government has been misled by Mr. Gurry.
Mr. Sherman. Well, they, when they use their power and
influence they have an obligation not to be bamboozled because
someone who is a native of Australia asks a favor. And whether
it is negligence from the Foreign Ministry of Australia or
whether it is gross negligence is something the resolution
could ask, that we would ask the Australians to tell us whether
it was negligence or whether it constituted gross negligence.
But the Australian Government has asked the United States
for help in its national security again and again. And now it
is responsible for technology that I realize now was more
advanced by the standards of when it was shipped than it is
today, they are responsible for North Korea and Iran for having
this technology. So if Australia is going to ask for our
soldiers and then foist this guy and put him in a position
where he can evade U.S. security sanctions, it sounds like the
only part of the world whose security they care about is
Australia. Yet they ask us to care about the security of the
world.
So I do think we need a resolution. I would like to see the
Australian Ambassador come here and brief us, our subcommittee,
either publicly or privately, should we simply discount as ill-
considered everything we hear from the Australian Foreign
Ministry? Because obviously they didn't spend any time
determining whether they should fight for Mr. Gurry.
Mr. Pooley.
Mr. Pooley. I, one thing I want to point out, I had a
similar reaction from Mr. Gurry, that Dr. Brown has reported,
when all of this happened. Later there was a study done by U.N.
lawyers who determined that when you parse the Security Council
sanctions very carefully, the kind of equipment here was not
radiation-hardened or otherwise of the sort that would
necessarily apply. There are lawyers I think who might
disagree, but that was the finding.
So I think in fairness what, what we need to focus on----
Mr. Sherman. What Mr. Gurry did is contrary to security,
national security interests of the United States. And he
obviously did not care whether he was violating U.N. security.
Now, even if as a technical matter he can come back after the
fact and point to some loophole, this is a man who has asserted
that he will boldly violate U.N. Security Council resolutions
designed to protect the national security of the United States
and the world. And he puts forward the idea that U.N. Security
Council resolutions do not apply if you have an entity created
by two countries, therefore it is not a country.
If that were the case, anyone, say Paraguay wanted to ship
something to North Korea, all they have to do is form the
Paraguay-Cayman Islands Joint Committee, and apparently every
U.N. Security Council resolution can be evaded by any country
completely legally so long as the Cayman Islands will
participate, or any one of the other tiny countries in the
world.
So the Australian Ambassador wants us to take them
seriously. They want us to listen to them on the theory that
they care about world security and that their comments are not
rubbish. Support for Mr. Gurry demonstrates one or other of
those statements is false: Either they will just repeat without
investigation anything that a well-paid Australian asks them to
say, or they really don't care about the sanctions against
North Korea, the sanctions against Iran, not to mention how
this agency is being run.
So I, I would hope that Australia would remedy this by
taking the lead on this organization in demanding this man's
resignation. And I think that that is something that would be
listened to because we are not the only country aware that this
gentleman was foisted on the world by a Australian Foreign
Ministry that either didn't know or didn't care.
But I will ask the panel, other than the soft resolution I
am talking about here, what else can Congress do?
Mr. Pooley. Well, one of the things we have indicated in
our written submissions is to reconsider the issue of
diplomatic immunity for top executives. We give unqualified,
more or less, diplomatic immunity. And it actually is qualified
in a certain way. But we need to have a different standard
applied so that they don't retreat and they don't know that
they can retreat into this safe harbor of diplomatic immunity.
Mr. Sherman. But in this case the gentleman is based in
Switzerland; correct?
Mr. Pooley. He is. He is. But and he has, he enjoys that
status because we have generally agreed to it. And that, that
allows him to know that he can't be pursued and he can't be
held accountable in some of the ways that would matter the
most. And so that is one thing that could be looked at.
Another thing is to create some sort of executive board
that he could not manipulate. And by ``he'' I mean any Director
General of any agency could not manipulate in a sense of seeing
to it who was appointed.
Mr. Sherman. How many countries are in the organization?
They each have an equal vote?
Mr. Pooley. It is one country, one vote. And it is about
185 I think.
Mr. Sherman. Gotcha.
Mr. Pooley. In that, it is in that range. So that would be
very, very helpful.
Mr. Sherman. That is how FIFA was run by a director who
then bought off the smallest and most needy countries.
Mr. Pooley. As a personal note, Congressman, I have to say
that when I saw the first long article about the FIFA problems
it almost threw me back on how you could substitute names. And
it represents----
Mr. Sherman. Does anybody else have a program for Congress?
Ms. Brown. No. I would agree with what Mr. Pooley and Dr.
Parish have said. I mean I think the Congress could play a very
significant role here. Your voice is what matters.
Mr. Sherman. I would say that we shouldn't criticize
Australia in the resolution so long as prior to the
introduction of the resolution Australia calls for the
resignation of Mr. Gurry.
Dr. Parish, anything else Congress can do?
Mr. Parish. The only point I would make, sir, is this: Mr.
Gurry is completely immune from any Swiss criminal or civil
jurisdiction. If the evidence you have heard today is correct,
then it does appear that he is has committed some very serious
criminal offenses. They are criminal offenses in Switzerland,
just like they are criminal offenses in the United States. But
there is nothing anybody can do about it because whereas he can
waive anybody's immunity that works for him, his immunity is
completely unwaivable unless you get a majority of these member
states to waive it. And it is an absolutely impossible bar to
achieve.
Mr. Sherman. I yield back.
Mr. Pooley. Mr. Chairman.
Mr. Smith. Mr. Pooley.
Mr. Pooley. If I might make one more suggestion, and that
is, and you may have noticed that external arbitration was
refused to me, we may benefit greatly from Congress taking
steps to enforce that idea, that across the U.N. the only way
that you can get justice for whistleblowers who have come
forward and presented something important and who have suffered
retaliation as a result, the only entity that can make a
judgment about whether or not that has happened and what to do
about it is an entity other than the U.N. itself or its
agencies.
So external independent arbitration would be very helpful.
Mr. Smith. Chairwoman Ileana Ros-Lehtinen.
Ms. Ros-Lehtinen. Thank you so much, Chairman Smith. And I
want to thank all of the witnesses for excellent testimony
today, especially Mr. Pooley and Dr. Brown. Thank you so much.
It has been a very long road to this point and you both have
been incredibly brave to continue coming forward despite the
grave risk involved. And I am very concerned by Mr. Gurry's
capacity to continue retaliating against you both.
Dr. Brown and Mr. Pooley, I want to ask, I want to ask you,
has the State Department been asked to watch Mr. Gurry closely?
Do you get that sense, Dr. Parish, that to ensure that these
whistleblowers, as well as Moncef Kateb are protected in the
months ahead? Do you get the sense that Mr. Gurry feels any
pressure whatsoever?
Mr. Pooley. Yes, thank you, Congresswoman Ros-Lehtinen. I
have probably been more closely in touch with State Department
personnel than others here. And I can say certainly the ones
that I have been dealing with are all very concerned and
watching very closely. There is no doubt that they receive all
of this information, they are concerned about it. At a personal
level they have made expressions of concern to me.
And so they certainly are aware.
Ms. Ros-Lehtinen. Does Mr. Gurry, do you think he feels any
pressure?
Mr. Pooley. I have no idea.
Ms. Ros-Lehtinen. And his behavior at WIPO by any standard
would be judged to have been absolutely despicable. And I am
shocked that he remains in office. Are you shocked as well or
do you know that agency so well that it is hard to shock you?
Mr. Pooley. Well, maybe that is true by now. As I said to
someone today, nothing would surprise me anymore.
I would prefer not to take a position on that. I have from
the beginning said that my involvement in all of this has one
goal and one goal only, and that is to get information to the
member states so the member states on an informed basis can
decide what to do.
Mr. Gurry has on various other occasions tried to make this
a personal issue. I do not want to go there and so I hope you
will forgive me if I don't comment.
Ms. Ros-Lehtinen. Absolutely. I understand.
But I hope that this administration would use every bit of
its voice, its vote, its influence at WIPO and with the member
states to ensure that Gurry is removed from office as soon as
possible. This administration must also ensure that
whistleblowers are reinstated at WIPO immediately.
So I will ask you both about whistleblowers. Dr. Brown, how
will the failure to protect whistleblowers like you impact the
entire U.N. system? And why are whistleblowers at one U.N.
agency subject to retaliation, if so, at another?
And then I will ask Mr. Pooley, continuing on
whistleblowers, if you could please comment on the impact on
whistleblowers like yourself and Dr. Brown, both in a personal
and in a professional capacity. How has it impacted you, Dr.
Brown?
Ms. Brown. Thank you. I think just looking at the U.N. more
generally, there is the U.N. Secretariat which has a U.N.
policy on whistleblowers, and then WIPO which has a separate
one. And each, the different bodies have different tribunals
where the staff go to take a complaint, for example. And the
problem really faced by whistleblowers is that in the case of
WIPO it will take 3 years before the tribunal will consider
your case. So you will find yourself unemployed potentially or
without a job for 3 years waiting for this tribunal to decide
on whether you will be reinstated or not.
This is why I took the decision to--I jumped before I was
pushed.
And then in terms of the vulnerability of whistleblowers, I
think generally when it comes to reporting wrongdoing or
allegations or wrongdoing by a U.N. agency head, we have to
remember that the senior echelons of the U.N. the staff move
around. This is a political situation, political body and
political appointees. And, therefore, one staff member who is
retaliated against in one organization may well face
retaliation if they move to another organization. There is no
protection for that across the system. There is not a uniform
policy across the system.
There is the ILO Tribunal for WIPO. There is the U.N.
Dispute Tribunal for the U.N. Secretariat. And staff easily get
caught in the morass, and there is very little that can, that
can be done if you are a staff member. Once the retaliation
starts it is difficult to respond to.
Ms. Ros-Lehtinen. Thank you.
Mr. Pooley.
Mr. Pooley. Thank you, Chair Ros-Lehtinen. At WIPO, like
other U.N. agencies, staff are prohibited from speaking with
the outside world except by permission. And because of this
confidentiality and secrecy, this cone of silence that is
imposed on staff members who are naturally fearful of losing
their jobs, the only way that we will ever learn of misconduct
within these organizations is from whistleblowers who are
prepared, notwithstanding those challenges, to come forward.
At this point, given what has happened with WIPO, many
others within the U.N. system are watching what is going to
ultimately happen as a result of what we have done here. And in
the event that we don't achieve something useful, you may be
looking at the last U.N. whistleblowers ever to come forward.
Ms. Ros-Lehtinen. That is what I worry about as well. Thank
you.
And finally, Mr. Pooley, you mentioned that you gave Mr.
Gurry a risk analysis, which he rejected, of his secret plan to
open offices in Russia and in China. What did you tell Mr.
Gurry about the risks of putting offices in these countries?
How do the risks impact WIPO's mission of protecting
intellectual property? And did Gurry understand that he might
be aiding and abetting violations of U.S. sanctions with the
transfers to Iran and North Korea?
Mr. Pooley. Thank you. The transfers to North Korea were
separate from the risk analysis that we did. But that, that
effort was a more or less standard management tool where you
look at some operation or proposed operation and you identify
all the things that can go wrong and what their effects would
be, and whether or not you can mitigate them, or if there is
some irreducible level of risk that you can't get rid of. That
was the process that I assembled a team to do with respect to a
particular office that he wanted to open in China. And I
presented that to him. And his response was to come back to me
with a note that said stop that work.
Ms. Ros-Lehtinen. Thank you, Mr. Chairman. It is just
incredible.
Mr. Smith. I know.
Ms. Ros-Lehtinen. Thank you.
Mr. Smith. Chairman Rohrabacher.
Mr. Rohrabacher. Thank you very much. And let me admit I am
not personally equipped with all the knowledge that I need to
analyze what your testimony is about today, so I am going to
ask you some fundamental questions. And that is the purpose of
WIPO itself as an organization, first of all, it is an official
United Nations organization. And that is right. Okay.
And the purpose of it is what? Is it to prevent, is it to
prevent the theft of American or other people's intellectual
property in certain countries? Or is it--and what is the other
purposes then, if not that?
Mr. Pooley. In general the purpose of WIPO is not to deal
with issues of enforcement of intellectual property rights.
Instead, WIPO exists to facilitate the acquisition in the
international sphere of intellectual property rights that are
essentially national in character.
There is no international patent. There is no international
copyright. There is no international trademark. But we have a
system at WIPO that allows you to use it as a portal to get
access in a much easier and more efficient way to these
national rights and bundle them much more easily and
efficiently. That is what it does. And it actually does that
very, very well. The Patent Cooperation Treaty that I oversaw--
--
Mr. Rohrabacher. So it does not protect the American
inventor who has a patent, that is not their purpose?
Mr. Pooley. It is not their purpose to enforce any
inventors' intellectual property rights; correct.
Mr. Rohrabacher. And it is only, and it is designed then to
facilitate the transfer of technology that if it is not owned
what, isn't it fair game then that people take what is not
owned?
Mr. Pooley. It is not part of their mission to deal with
the enforcement or what you do when someone steals someone
else's intellectual property rights. What they, what they
handle is the acquisition of those rights in the first place
and making it easier to do that.
Enforcement has to happen with the courts of countries that
recognize those rights. And sometimes those are cross-border
disputes.
Mr. Rohrabacher. Yes, I am--quite frankly this is all a
little confusing to me. And I----
Mr. Pooley. I can understand.
Mr. Rohrabacher [continuing]. And I consider myself someone
who knows a lot about our own patent system.
Mr. Pooley. I know that.
Mr. Rohrabacher. And this, so this organization is aimed at
trying to, how would you say, regulate or to be able to have an
overview of technology that is being transferred from one
country to another?
Mr. Pooley. It doesn't deal directly in technology
transfer. But what it does is bring together, in the case of
the Patent Cooperation Treaty, 148 countries from around the
world, all of whom have agreed to take an application that is
submitted to WIPO as if it was one of their own, and to
recognize it when it comes to their country. And that gives
those who want to acquire rights among a number of countries a
much more efficient way to go about it. And they get an extra,
they get 30 months to decide before they have to start spending
the money on any particular national application.
So it is about acquisition. People in the U.S. often start
out at the U.S. PTO and file their application there. They have
a year then to file that application with WIPO, which gives
them an additional period of time within which to think about
it, develop the technology before they go in and spend the
money to get patents in another jurisdiction. That is what it
is good at.
Mr. Rohrabacher. And but it is not dealing directly with
people in other countries that are engaged in theft, actual
hacking in and stealing someone's technology; is that right?
Mr. Pooley. That is correct. It doesn't, it doesn't deal
with those issues.
Mr. Rohrabacher. Doesn't do that. Okay.
And if, indeed, what we are talking about then is trying to
facilitate transfers, why would they want to have it secret
that they have an agreement or they are negotiating with
Beijing and Moscow to open up some kind of office there?
Wouldn't that facilitate discussions? And why would someone
want to keep that secret?
Mr. Pooley. All I can tell you is what Mr. Gurry told me,
which is that if people knew that he was doing this the flood
gates would open and he wouldn't be able to get it done. It was
for political purposes that he did this in a way that it could
be presented as a fait accompli. That is my understanding.
Mr. Rohrabacher. But in reality, do you see anything
philosophically or morally or legally wrong with opening up an
office in Beijing and Moscow to actually have someplace to step
forward with your claims, if nothing else?
Mr. Pooley. Well, having a, having a WIPO office in Beijing
I felt was at least, at least nominally justifiable because at
the time China was the fastest growing customer of the
international patent system and other systems. And it would
make sense, it seemed to me, to have a customer service office
there.
I have a lot more trouble understanding the office in
Russia because it didn't seem to meet any of those kinds of
guidelines. But then we were not asked our opinion on the
senior management team, this was just a decision by Mr. Gurry.
Mr. Rohrabacher. And we are talking about now there was a
transfer of some kind of equipment and technology that was
part, to North Korea. What was that equipment that we are
talking about?
Mr. Pooley. That equipment consisted of a, at least among
other things, a high-end server, a very, very fancy printer, a
24-terabyte disc array, a memory device that is, and an
electronic firewall, the only purpose of which was to keep
North Korea citizens from using this equipment to access the
Internet. All of that was transferred, ostensibly, in order to
support the North Korean Patent Office in its efforts to
modernize its technology.
Mr. Rohrabacher. And, okay, so we know that. I guess what
we are saying then, if a country is known to be a thief and
knowingly been involved or at least maybe not directly but they
are letting this happen, like North Korea, they steal
intellectual property, or is it the fact that they are
preceding with a nuclear weapons program? What is the reason
for singling out North Korea and Iran, for example?
Mr. Pooley. Yes. Whether or not a country seems to be
encouraging or allowing the theft of intellectual property is
not an issue, and probably shouldn't be an issue, when it comes
to just whether or not you support their Patent Office so that
they can be part of the international community.
Mr. Rohrabacher. Right.
Mr. Pooley. But whether or not they are using or could use
equipment that you send to them to help their Patent Office for
some other purpose that would violate U.N. Security Council
sanctions or would violate the intention of U.S. export
controls----
Mr. Rohrabacher. Right.
Mr. Pooley [continuing]. That is very much a concern.
Mr. Rohrabacher. It is export control and it is United
Nations sanctions that this organization then will be conscious
of in terms of enforcing those type of restrictions, and not
that there is a bunch of hackers up in North Korea who are
coming in and stealing Boeing's secrets on or patents on how to
build a wing for an airplane?
Mr. Pooley. That is, that is not part of their mission to
deal with that.
Mr. Rohrabacher. All right. Well, thank you for your
testimony today. I am still not fully satisfied that I
understand the whole process. But I am glad you brought this to
our attention.
And I am also glad that you have stepped forward to try to
have a public discussion on something that you felt was wrong
and you were willing to courageously step forward, even though
you could pay a personal price for it. And we want to thank you
for that because we will, you know, we are so busy here. You
know, you have got Chris over here who is the champion of human
rights all over the world, every country, and we are so busy at
times that we need, we certainly need people like yourselves to
draw our attention to these things so that we can have a proper
judgment of it and see if some legislation will help.
So thanks for guiding us in that today.
Mr. Pooley. Thank you.
Mr. Rohrabacher. Thank you.
Mr. Smith. Thank you very much.
Let me just ask some concluding questions and then we will
conclude the hearing. I remember, because I have been in
Congress now for 36 years, when U.S. Attorney General Richard
Thornburgh did extensive research and made landmark
recommendations for U.N. reform. And that was back in 1993, 23
years ago.
I remember when he sat right where you sit and called for
the establishment of Inspectors General; that there was no
accountability; waste, fraud, and abuse were habitual in the
U.N. It was degrading its image as well as the mission. And he
was very, very eloquent. And he was one of our best Attorney
Generals ever, Dick Thornburgh.
So my question, you know, that I would like to ask: The
U.N.'s response has been lackluster, I believe, when it comes
to IGs in terms of real robust interventions and protections
for whistleblowers. Are there other, as far as you know, other
agencies where there is a better situation, where
whistleblowers, while they may be seen as a nuisance, bring
forward information that honorable and noble people will take
and say this is a problem, we need to fix it?
Because, frankly, we are going to do a great deal of
follow-up on this. And I take to heart, as do the other chairs
and ranking members who are here today, when you said that if
you come forward, as you have done, and there is not a robust
response on the part of Congress, that that could spell the end
for whistleblowers coming forward because they know they will
not be pushing on an open door but it will be a cul-de-sac to
get in for them. We need to have your back. And I can assure
you this chairman will do everything humanly possible.
Because I remember Dick Thornburgh; he said, if we don't
fix this, the U.N. is in serious trouble going forward. It is
not a sustainable organization if we don't make sure that every
dollar is accounted for and that policies are followed.
And, again, as you pointed out, Dr. Parish, to suggest that
they are not covered, they being WIPO, by U.N. sanctions--and
Dr. Brown as well--is ludicrous. U.N. policies, Security
Council policies have application for the world, not just for
those who, you know, there is no immunity there. And we will
follow up on that as well.
But if you could speak to whether or not there is any other
sister agency where there might be a better situation, if you
would like to speak to that.
Dr. Brown, you spoke of the 9 months, March to November
2012, where you remained in close contact with the U.S. Mission
in Geneva, and also kept staffers from this committee, of
course, informed. When the U.S. Mission intervened do you
recall how they intervened? Was it just a letter? Was it a very
strong response? Was there any possible penalty affixed to it?
I do write a lot of laws on human rights, and the
trafficking laws, four of them now, including the Trafficking
Victims Protection Act. There were a lot of people who didn't
want that law because it had punitive sanctions. Our own civil
rights laws, as you know, in the United States would not have
had the kind of impact they have had if it wasn't for the
threat of a sanction. And I think the greater the Sword of
Damocles that hangs over the head of an agency or a state or a
country, the better, so long as the sanctions are judiciously
included and implemented.
What did our representative do, Dr. Brown, if you could
speak to that?
And let me finally, if I could, Mr. Pooley, on Shanghai--I
was just in Shanghai--what was the nature of the office that
was opened there? Or was it in Beijing; did I mishear that?
Mr. Pooley. The office ultimately that was opened was in
Beijing.
Mr. Smith. Oh, it was ultimately opened.
Mr. Pooley. Yes.
Mr. Smith. If you could, Dr. Brown and Dr. Parish.
Ms. Brown. Thank you. Well, this morning I can only really
comment on what I know and what I was told, which is
essentially that the U.S. Mission made multiple representations
to Mr. Gurry and demanded that he fully protect whistleblowers.
I am not aware apart from that. And, of course, the U.S.
Mission or the U.S. Government pursued the whistleblower policy
which wasn't in existence at WIPO.
But I'm not aware, I can't really comment on any other
initiatives; I'm not aware of them.
Mr. Smith. And the 15 percent contribution, because our
contribution is de minimis anyway, only because so much of it
is derived from patents, if I am not mistaken--what kind of
impact would that have? Why not a 100-percent cut and some
other action that says we are not kidding?
And that is what kills me. You have put your lives, your
careers on the line. And again, I say to my Australian friends,
please take note: You are good friends and allies. This is an
aberrant departure; hopefully it is an exception. There needs
to be more introspection on the part of that great friend and
ally.
I like what you said: Friends don't let friends drive
drunk. Well, friends don't let friends commit human rights
abuses or back a bureaucrat who with impunity is misusing his
authority.
And, again, we invite him to come and testify. I can't wait
to ask questions. We invited him today and they sent a note. I
would rather have him in the flesh and let's hear their side of
the story. It will be a briefing, not a hearing, and they could
ask us, the chairs and ranking members, any questions they want
to ask as well.
Mr. Pooley. Well, Mr. Chairman, all I would say is we would
very much welcome any kind of ``we really mean it'' consequence
that Congress, working with the professionals at the State
Department, can develop that would prevent these kinds of
things from happening in the first place, and that would
protect whistleblowers, give whistleblowers strong enough
protection so that you can get the kind of information that you
need in order to be able to engage in the oversight that you
are supposed to do.
Mr. Smith. Yes, Dr. Parish.
Mr. Parish. Well, Mr. Chairman, thank you. I followed
issues relating to the accountability of various different
international organizations within the U.N. system, some are
without, outside the U.N. system, and some that seem to be
appended to the U.N. system like WIPO, for about the last 10 to
12 years. And I am just going to offer some general
observations in as far as they can be helpful to you.
I would say that things are patchy and they have generally
and gradually improved within the United Nations system. The
United Nations Disputes Tribunal is one form of staff right
protection, which is certainly better than what came before.
And we found that in some cases the system of dispute
resolution has, has improved, has become more public, and has
created a, we hope, a more effective structure to protect staff
rights, whistleblowers' rights. But it is patchy. It is not
perfect.
But the real bottom of the barrel, if I can describe it
like that, sir, are cases where there are organizations which
sit on the outskirts of the United Nations system, like WIPO,
over which the hands of tradition may be more for loss of
public scrutiny of any kind whatsoever, which have kind of
fallen away. And the danger you find with an organization like
that is that they might become captured by any one particular
individual who doesn't frankly have, may not have model
scruples of any particular kind, and may not be at all
committed to the goals of transparency and accountability, in
which case the danger in a case like that is that the
organization may simply be run off, run away with by such
person and ends up who knows where.
And it might be that the committee concludes on the basis
of the evidence it has heard today that WIPO is an organization
in that category.
Now, as to the question of what the committee can do, I am,
certainly my own view is that although, yes, the 15 percent cut
is effectively de minimis for reasons of WIPO's funding,
nonetheless the message of Congress is going to be an extremely
important one because U.S. entrepreneurs and businesses are
major users of WIPO. And, therefore, the United States does
have a very, very strong voice. And a 100 percent cut is one
option.
But in any event, a public statements of censure in the
strongest possible terms is something that is going to cause
people to say, hang on, this is an important organization. My
own view is that it has an extremely important mandate which is
to promote intellectual property rights worldwide. The basic
idea is that a U.S. entrepreneur can obtain some sort of patent
pending protection in many of the jurisdictions through
applying with WIPO. It is a very important mandate to promote
the obvious goals of intellectual property advancements.
And perhaps what is necessary is that some public light of
scrutiny is shone into what the organization is doing, and that
is something which I respectfully suggest it would be most
appropriate for Congress to do.
Thank you, sir.
Mr. Smith. I just have one last question and then any
concluding comments, if you would like. Anything that my
colleagues and I may have missed or not asked, please speak
out.
Dr. Brown, you mentioned that Mr. Gurry ``decided not to
renew my contract.'' It will ``take over 3 years of litigation
in the International Labour Organization's Administrative
Tribunal'' before being granted a hearing, as WIPO, like most
international organizations is immune to national laws.
``During that period, I would not have a salary,'' you said,
``and would most likely not have been allowed by the Swiss
Government to remain in Geneva, where my children are
schooled.''
Let me ask you, even with a hearing, how much longer would
it have taken for them to adjudicate the case and render an
opinion?
And then, is that standard operating procedure that it
takes so long to get a hearing, and meanwhile you are out of a
job?
That seems to me--``justice delayed is justice denied''--
that seems to me that that is a de facto advantage to the
offending party because you don't have a right of recourse
there.
Ms. Brown. Thank you. Yes. I think you have summarized the
situation accurately. Essentially if you go through the
Tribunal, you will find that it is 3 years, most likely it will
take 3 years before your case is heard. And during that time
you will be waiting to find out what happens. You will be
unemployed probably or you have to look for----
Mr. Smith. And there is no provision to continue your
employment pending the outcome of the case?
Ms. Brown. No.
Mr. Smith. Wow.
Ms. Brown. And the ILO Tribunal can order reinstatement. So
at WIPO, after 3 years if you win your case you could be
reinstated. But there again, the Director General would have to
implement what the Tribunal orders. And in the case of Mr.
Gurry, on occasion that has not occurred.
I would then add that in the U.N. system it is probably a
little bit faster. But the problem there is that the Tribunal
does not necessarily order the reinstatement and it is the
Secretary General who decides whether or not his staff member
is reinstated. And in practice, what happens is that the staff
member is usually given a small payout.
So whichever system you look at, it doesn't work well for
whistleblowers. And I would like to emphasize that the
situation in general, probably, whistleblowers across the U.N.
system, and it may have improved in some respect, but where
this problem is really exacerbated is where the allegations of
wrongdoing involve the U.N. agency head. There the system just
doesn't work.
Mr. Smith. Thank you.
Mr. Pooley. If I may add, Chairman, the problem that you
have identified is a very serious one. The way that the system
is set up now encourages the agency to not only take a position
against a staff member, but to string it out for as long as
possible.
And I have to say that, again I have been a lawyer for a
long, long time, and I know that there is a certain view of the
law that focuses on procedure and delay. And I think Dickens
gave us some really good examples of it. Some of what happened
in Bleak House, you find repeated and worse at WIPO.
In terms of focus on tiny distinctions in procedural issues
in order to try to produce the longest possible delay to the,
to the detriment of the staff member. And basically, as you
said, it becomes so delayed that there is no possibility of
reasonable justice. Mr. Gurry used to be the organization's
legal counsel. And he is very well-versed in how to take
advantage of these procedural rules.
Mr. Smith. I do have one final question. And that is, is
there anything or any provision in the founding documents that
established WIPO that protects personnel from retaliation other
than these long, drawn-out, the Tribunal process for example?
And can a member, can member states table a resolution
perhaps at the Assembly to reform WIPO to get it right, so
that, you know, a hearing could be within 30 days or 60 days so
that everything is on the table?
Because I would think, and I do believe whistleblowers are
one of the most noble and important groups of persons in any
organization. They are the canaries in the coal mine. If there
is a problem and somebody comes forward, corrective action can
be taken.
And I would think that the way you have been misdealt with
has had a chilling effect on anybody else in WIPO coming
forward. As they say, except for the grace of God, there goes
I; jobless because of your courage.
Is there anything can be done? Is there anything in the
founding documents? And again, can a member state like America,
the United States, table a resolution that would reform this
flawed system?
Mr. Pooley. Thank you, Mr. Chairman. Indeed, if I would
leave you with one final thought it is that WIPO belongs to the
U.S. and the other member states. It is up to them, if they
don't like what they see in how it is being governed, to change
it. And one of the most impactful ways to change that and
resolve some of the concerns that we have seen here would be to
ensure that staff members have a legitimate, easy to use, and
fair way to get their problems and issues resolved.
And for whistleblowers, as I have said earlier, that really
needs to include external independent arbitration. Thank you.
Mr. Smith. Thank you. Thank you.
Dr. Brown or Dr. Parish, any final comments?
Ms. Brown. I would agree with what Mr. Pooley says.
External arbitration is really vital. And at the moment it is
denied to U.N. staff across the system.
Mr. Parish. One final remark from me, Mr. Chairman. The
problem in WIPO, specific to WIPO, is that there are internal
rules and procedures but they all start and finish at the end
of the day with the Director General. So if you have got a
complaint against the Director General there is absolutely
nothing you can do because he can, and he will, be able to
block you at absolutely every touch and turn. And that may well
be, sir, why we are here giving evidence before you today.
Mr. Smith. Thank you so very much. I can assure you we will
follow up. You have provided enormous insight and wisdom to the
committees. And we need to come up with an action plan.
The hearing is adjourned.
[Whereupon, at 3:39 p.m., the subcommittees were
adjourned.]
A P P E N D I X
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Material Submitted for the Record
Material submitted for the record by the Honorable Ileana Ros-Lehtinen,
a Representative in Congress from the State of Florida, and chairman,
Subcommittee on the Middle East and North Africa
Material submitted for the record by the Honorable Christopher H.
Smith, a Representative in Congress from the State of New Jersey, and
chairman, Subcommittee on Africa, Global Health, Global Human Rights,
and International Organizations
__________
Material submitted for the record by the Honorable Christopher H.
Smith, a Representative in Congress from the State of New Jersey, and
chairman, Subcommittee on Africa, Global Health, Global Human Rights,
and International Organizations
__________
Material submitted for the record by the Honorable Christopher H.
Smith, a Representative in Congress from the State of New Jersey, and
chairman, Subcommittee on Africa, Global Health, Global Human Rights,
and International Organizations
Material submitted for the record by Mr. James Pooley, attorney at law
(former Deputy Director for Innovation and Technology, World
Intellectual Property Organization)