[Senate Hearing 109-570]
[From the U.S. Government Publishing Office]
S. Hrg. 109-570
U.S.-U.K. EXTRADITION TREATY
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 21, 2006
__________
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COMMITTEE ON FOREIGN RELATIONS
RICHARD G. LUGAR, Indiana, Chairman
CHUCK HAGEL, Nebraska JOSEPH R. BIDEN, Jr., Delaware
LINCOLN CHAFEE, Rhode Island PAUL S. SARBANES, Maryland
GEORGE ALLEN, Virginia CHRISTOPHER J. DODD, Connecticut
NORM COLEMAN, Minnesota JOHN F. KERRY, Massachusetts
GEORGE V. VOINOVICH, Ohio RUSSELL D. FEINGOLD, Wisconsin
LAMAR ALEXANDER, Tennessee BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
LISA MURKOWSKI, Alaska BARACK OBAMA, Illinois
MEL MARTINEZ, Florida
Kenneth A. Myers, Jr., Staff Director
Antony J. Blinken, Democratic Staff Director
(ii)
?
C O N T E N T S
----------
Page
Dodd, Hon. Christopher J., U.S. Senator from Connecticut, opening
statement...................................................... 3
Linnon, Professor Robert C., Ph.D., Irish American Unity
Conference, Washington, DC..................................... 10
Prepared statement......................................... 12
Lugar, Hon. Richard G., U.S. Senator from Indiana, opening
statement...................................................... 1
McNulty, Paul J., Deputy Attorney General, U.S. Department of
Justice, Washington, DC........................................ 35
Prepared statement......................................... 38
Meehan, John J., Jr., National President of the Ancient Order of
Hibernians, Quincy, Massachusetts.............................. 5
Prepared statement......................................... 8
Morris, Madeline, Professor, Duke University Law School, Durham,
North Carolina................................................. 14
Prepared statement......................................... 19
Witten, Samuel M., Deputy Legal Adviser, U.S. Department of
State, Washington, DC.......................................... 41
Prepared statement......................................... 44
Appendixes
Appendix I: Responses to Additional Questions Submitted for the
Record by Members of the Committee............................. 65
Appendix II: Statement Submitted by Professor Francis A. Boyle... 89
(iii)
U.S.-U.K. EXTRADITION TREATY
----------
FRIDAY, JULY 21, 2006
U.S. Senate,
Foreign Relations Committee,
Washington, DC.
The committee met, pursuant to notice, at 10:00 a.m. in
Room SD-419, Dirksen Senate Office Building, Honorable Richard
G. Lugar, chairman of the committee, presiding.
Present: Senators Lugar and Dodd.
OPENING STATEMENT OF HONORABLE RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
The Chairman. This hearing of the Senate Foreign Relations
Committee is called to order. The committee meets today to hear
testimony on the Extradition Treaty between the United States
and the United Kingdom.
Within the Congress, the Senate Foreign Relations Committee
is charged with the unique responsibility of reviewing treaties
negotiated by the administration. Our colleagues in the Senate
depend on us to make timely and judicious recommendations on
treaties. In addition to the treaty before us today, the
committee is working hard to advance several other important
treaties, including the Cybercrime Convention, the Corruption
Convention, the Israel Extradition Protocol, the Convention on
Supplementary Compensation for Nuclear Damage and the Uruguay
Bilateral Investment Treaty. I'm hopeful the Senate will be
able to act on these measures this year.
The United Kingdom is one of this country's closest allies,
with them we enjoy a deep cultural affinity and an excellent
partnership. The British Government and people have taken a
leadership role on numerous foreign policy challenges,
including stabilizing Iraq, protecting democracy and pluralism
in Afghanistan, working for nuclear non-proliferation in Iran,
fighting disease and poverty in Africa, and improving global
cooperation on climate change. These contributions and many
others have been crucial to international security and order.
This new extradition treaty with the United Kingdom is
designed to update our existing extradition relationship,
bringing it into line with other modern U.S. extradition
treaties. Upon entry into force, the new treaty would replace a
treaty that dates back to 1972. Extradition treaties are
critical tools for United States law enforcement in combating
transnational crime, as they ensure that those who commit
crimes in this country cannot escape justice by fleeing to
other countries.
Among other provisions, the new treaty would adopt a modern
dual criminality standard for extradition, allowing extradition
for offenses that are punishable by one year or more in both
countries. It would also ensure the continued application of a
new, less burdensome evidentiary standard for extradition
requests by the United States to the United Kingdom. Moreover,
it would permit the temporary surrender for trial of fugitives
who are serving sentences in the requested state.
The committee held a first hearing on the treaty on
November 15 of last year, at which time we heard from the
administration. Today, the committee is joined by three
witnesses from outside of our government. We welcome Mr. Jack
Meehan, President of the Ancient Order of Hibernians; Dr.
Robert Linnon, President of the Irish American Unity
Conference, and Professor Madeline Morris of Duke University
Law School. Professor Francis Boyle of the University of
Illinois College of Law at Urbana-Champaign was also invited to
testify--we've been informed that the sudden thunderstorms that
hit the Midwest yesterday resulted in numerous canceled
flights, and as a result he has not been able to reach
Washington this morning. He has provided extensive written
testimony in advance of the hearing which will be made
available to members, and it will be included in the hearing
record in full.
[The information referred to appears in Appendix II of this
hearing print.]
The Chairman. Following the first panel, the administration
will have an opportunity to update the information it provided
to the committee in November. We also want to give members who
were not present at the first hearing a second opportunity to
question the administration about the treaty or to raise
concerns about individual provisions. We are pleased to welcome
Deputy Attorney General Paul McNulty, representing the
Department of Justice, and Deputy Legal Adviser Samuel Witten,
representing the Department of State.
We look forward to the contributions of all of our
witnesses today, as the committee continues its consideration
of this treaty. I will ask the witnesses to deliver the
statements in the order that I have mentioned them in this
introduction. If you are summarizing your statement, let me
simply state the entire text of your presentation will be
included in the hearing record in full, and so you need not ask
for permission, that will be granted in advance, and you will
be asked to proceed however you would wish.
So I note that our colleague, Senator Dodd is on the way
and we waited a few moments, and when he comes we will
recognize him for an opening statement, if he has one, so that
our record will be complete with that testimony. But at this
point, we would like to proceed.
Well, Senator Dodd has arrived, just at the right time.
Senator Dodd, I just indicated that we were anticipating your
presence and I would recognize you for an opening statement,
just having delivered one myself.
OPENING STATEMENT OF HONORABLE CHRISTOPHER J. DODD, U.S.
SENATOR FROM CONNECTICUT
Senator Dodd. Very good, Mr. Chairman, my apologies to all
of you for being a couple of minutes late, but I'm very
grateful to the Chairman for his willingness to reschedule this
morning's hearing on the 2003 U.S.-U.K. Extradition Treaty. It
was originally scheduled--as all of you are probably aware--to
be held earlier this week so that I am able to actually attend
that. I'm grateful to you, again, Mr. Chairman for that.
Recognizing that the committee has already held one hearing
on this treaty--last November--I'm very grateful that the
Chairman decided to hold a second hearing on the treaty so that
the committee can have an opportunity to hear from additional
witnesses, including representatives of certain Irish-American
organizations.
The 2003 U.S.-U.K. Extradition Treaty was signed on March
31, 2003 and transmitted to the Senate on April 19, 2004. If
ratified, this treaty would replace a 1972 treaty as modified
by the highly controversial 1985 Supplementary Treaty.
Other than last year's hearing on the proposed treaty, the
last time the subject of extradition came before this committee
relative to the United States and the United Kingdom was two
decades ago. At that time, you were Chairman, Mr. Chairman, and
I was a freshman United States Senator, new to the committee.
And I had black hair in those days, as I recall.
The committee's consideration of the 1985 Supplementary
Treaty was the subject of intense review and scrutiny. It was
the subject of three hearings and two markups, over the course
of roughly twelve months--with more than twenty witnesses heard
by this committee. Ultimately, of course, this body gave its
advice and consent, but not before adopting three amendments
and a declaration relative to the treaty, including an
amendment related to the political offense exception to
extradition.
Mr. Chairman, I am not suggesting that the Extradition
Treaty now before us needs that amount of the committee's time
or is it necessarily as controversial. However, I do believe
that before deciding whether to give our advice and consent to
this new treaty, and under what conditions, we need to fully
understand the changes that are being proposed to the existing
extradition framework.
In addition to our public panel, I believe is was extremely
wise of you to invite the administration witnesses--and I thank
you for doing that--back to testify again after the public
panel, so that they will have an opportunity to comment on
their testimony. I believe there are a number of very important
questions raised by the pending treaty.
Among the most important are why was Article 3 of the
Supplementary Treaty removed? And what is the cumulative effect
of that change coupled with the elimination of the statute of
limitations requirements related to extraditable offenses that
exists in the current treaty?
Article 3 was added by this committee in 1986, and was the
subject of painstaking negotiations. It bars extradition if the
person sought establishes that the extradition request has been
made with a view to try an individual on account of race,
religion, nationality or political opinions, or that if
surrendered, that individual would be prejudiced at trial or
punished because of those reasons. This provision also provides
for judicial review of these questions, a provision unique to
our bilateral extradition treaties. I recognize that it is
unique proviso--but there were unique reasons for its inclusion
twenty years ago.
I understand that there have been only a handful of cases
in which Article 3 of the treaty has been invoked related to
incidents involving the Northern Ireland conflict, and that
none are pending now.
Without a doubt, much has changed since 1985 and the 1985
Supplementary Treaty entered into force. First and foremost was
the conclusion of the 1998 Good Friday Accords, which has
established a framework for resolving the root causes of the
political conflict in Northern Ireland. While there have been
bumps along the road, obviously, with respect to the full
implementation of the Accords, I believe very deeply that it
has been largely effective in ending the sectarian conflict
that had cost so many lives in Northern Ireland.
Since the signing of the Good Friday Accords in 1998, the
British authorities have taken a number of legal steps to
address legal questions related to that sectarian conflict. In
1998 the U.K. introduced an early release program whereby IRA
and Loyalist prisoners could apply for release on probation
after they had served two years in prison. Four hundred and
forty seven individuals have been released under this scheme;
however, some fugitives remain outside the early release
program--namely those who went ``on the run'' before trial or
escaped from prison before serving two years of their
sentences. Legislative efforts to deal with these individuals
have thus far been unsuccessful and therefore at least some
remain in limbo despite the Good Friday Accords. These are
important legal steps that have been taken since the committee
considered the 1985 Supplementary Treaty.
Full implementation of the Good Friday Accords is still a
work in progress. As many in this room, I'm sure, are aware,
Northern Ireland is once again being governed from London
following the suspension of the Northern Ireland Assembly in
2003. Efforts to stand up that assembly and select an executive
directorate are now ongoing. I'm very hopeful that those
efforts will be successful by the November deadline set by the
British and Irish Governments, however, absent full
implementation of the peace process, past grievances, fears and
suspicions will remain fresh in the minds of Irish activists on
both sides of the Atlantic.
So it is in this context and climate that we must review
the proposed treaty. Our administration witnesses need to help
this committee and the public at large understand how the
provisions of the new treaty compare to the new treaty with the
United Kingdom, why changes were made, and whether those
changes will create new potential legal jeopardy for Americans
who have been politically active in their opposition to the
British rule in Northern Ireland should the treaty be ratified
in its current form.
What benefits will the United States gain, in its effort to
obtain the extradition of suspects to the United States? In
other words, to state it plainly, what is in it for this Nation
if we approve this treaty? All of this information will be of
enormous help to this committee in its consideration of the
treaty.
I apologize for taking so much time, Mr. Chairman, to raise
these issues, and again let me express my deep gratitude to you
on a Friday here, when we're out of session, the Chairman of
this committee holding this special hearing and allowing us to
hear these witnesses and the administration to comment on that
is something that I'm very, very grateful to Dick Lugar for.
He's been a great Chairman of this committee, we've served
together now for a quarter of a century, and I'm not surprised
he would do this, but I want all of this room to know what a
special debt of thanks we owe to Dick Lugar, the Chairman of
this committee.
The Chairman. Well, Chris, you're most generous and I
appreciate that, but I'm very glad we had your important
opening statement, because it does set historical record as we
listen to our witnesses.
Now, we appreciate very much your coming and accommodating
the change of schedule of the committee. I would like to now
call upon Mr. Jack Meehan for his testimony, to be followed by
Dr. Linnon, and then Professor Boyle. Mr. Meehan?
STATEMENT OF JOHN J. MEEHAN, JR., NATIONAL PRESIDENT OF THE
ANCIENT ORDER OF HIBERNIANS, QUINCY, MASSACHUSETTS
Mr. Meehan. Distinguished members of the U.S. Senate
Foreign Relations Committee, guests, and others present.
My name is John Meehan, I reside at 60 Longwood Road,
Quincy, Massachusetts. I am the National President of the
Ancient Order of Hibernians in America, the oldest, largest,
and only nationally represented Irish Catholic fraternal
organization in the United States. The Ancient Order of
Hibernians is widely recognized as the quintessential Irish
American organization and the most highly respected voice of
the Irish in America. As National President, I am authorized to
speak on behalf of the approximately 80,000 members of our
noble order, the vast majority of whom are American citizens
and voters in the 46 states in which we are represented.
Thousands of our members are also veterans of the United States
armed forces.
Although I have a deep and abiding love for Ireland and her
people as evidenced by the fact that I am also a citizen of
Ireland, a property owner there, and a speaker of the Irish
language, whose late wife and current wife were both born
there, there is no doubt that my first allegiance is to the
country of my birth and in whose armed forces I very proudly
served. That country is, of course, the United States of
America.
And now, if I may, let me cut right to the chase and give
you some background on what we, the members of the Ancient
Order of Hibernians, do. Are we primarily activists in issues
that affect Irish Americans and Catholics? The answer is
clearly yes. Have we spoken out in opposition to documented
human rights violations by the British Government in the North
of Ireland throughout the recent conflict from 1968 to the
present? The answer is clearly yes.
The human rights violations to which I refer were
perpetrated on the Catholic Nationalist minority community on a
regular basis during the conflict and verified by such
respected human rights advocacy groups as Amnesty
International, the European Court of Human Rights, and Human
Rights Watch.
Do we advocate violence? The answer is absolutely not. As a
matter of fact, we are bound by the Preamble to our National
Constitution which requires us to, and I quote, ``to aid and
advance by all legitimate means the aspirations and endeavors
of the Irish people for complete and absolute independence,
while promoting peace, justice, and unity for all of the people
of Ireland.''
We are on record as solidly supporting the full
implementation of the Good Friday Agreement including all of
the policing reforms recommended by the Patten Commission. We
are also on record as having recommended complete disarmament
by the Irish Republican Army long before that became a reality.
Now let me give you some reasons why we, as American
citizens and voters, vehemently oppose the acceptance of this
treaty by our government. We can not overemphasize the fact
that contrary to the opinion of some persons who should know
better, this is not an Irish issue. Our position is that any
treaty which negatively impacts American citizens is an
American issue, pure and simple.
There is already an extradition treaty in existence between
the United States of American and the British Government. It
has, for all intents and purposes, served both nations well for
quite some time, while at the same time, not sacrificing the
rights guaranteed to American citizens in our most cherished
document, the Constitution of the United States of America. The
proposed treaty does not include these constitutional
guarantees.
Why would the United States Government need this proposed
treaty in order to extradite anyone we seek in fighting the war
on terror? Have we not already extradited a number of people
under the British Extradition Act of 2003? It would appear then
that the only logical reason for ratification of this proposed
treaty is to make it easier for the British Government to
extradite American citizens. Are we wrong in making this
assumption? We don't believe that we are.
Further, British subjects extradited to the United States
are guaranteed the right to a trial, the right to remain
silent, the presumption of innocence and all of the other
rights guaranteed to American citizens by our Constitution.
However, if this proposed treaty is ratified, American citizens
extradited to Britain are not guaranteed those same rights that
we grant to British subjects. Is this not a true statement?
Why, then, would the United States Senate, a legislative
body elected by the citizens of the United States, even
consider ratification of a treaty which ensures our
constitutional rights to persons from foreign countries that
are extradited here, while denying those same rights to United
States citizens who face trial overseas?
Is it not a true statement that this treaty proposes
surrendering the constitutional rights of United States
citizens for the sole purpose of avoiding political
embarrassment for the British Government ahead of their
upcoming elections?
At the prior hearing on this treaty which was held on
November 15, 2005, Senator Lugar, the chairman of the committee
clearly stated that: ``The committee will consider this treaty
and expects to hold an additional hearing next year from
witnesses outside our government. Today we want to establish a
record of the administration's views on the treaty to which the
committee and all interested parties can refer as we continue
our deliberations.'' With all due respect to Chairman Lugar, I
certainly hope that the good citizens giving testimony today,
in opposition to the administration's position on ratification
of this treaty are not considered ``witnesses outside our
government.'' If so, one would have to wonder what became of
the phrase we all learned as schoolchildren, ``government of,
for, and by the people.''
Can we live with a document between our country and Britain
that transfers the sole responsibility for determining whether
an extradition request is politically motivated, or not, from
the Federal courts to the executive branch thereby denying
American citizens their right to have their day in court before
an impartial judge? The answer is clearly no. Never before in
our Nation's history has our government even considered
subjecting the liberty of American citizens to the whims of a
foreign government.
Can we live with a document that allows for the provisional
arrest and detention of American citizens for 60 days upon
request by the British Government without even submitting a
formal extradition request providing the details supporting the
reason for their request? The answer is clearly no.
The proposed treaty permits retroactive application. Simply
stated, this means that the terms of the proposed treaty will
apply retroactively for offenses allegedly committed before the
treaty's ratification. It also provides that American law need
not have been violated in order for extradition to take place.
If this treaty is ratified, no American citizen who is or
ever has been active in Irish political affairs and who has
publicly spoken in opposition to British governmental policy in
the North of Ireland will be safe from the possibility of being
extradited to Britain for merely exercising his right to free
speech guaranteed under the First Amendment of the Constitution
of the United States of America.
It is a sad day, indeed, when the United States of America,
the greatest democracy the world has ever known, would allow
the pacification of any foreign government, regardless of how
close an ally they may be perceived to be, to take precedence
over protecting the constitutional rights of American citizens.
Whether one agrees or disagrees with our country's
involvement in the war in Iraq and Afghanistan, the fact is
that thousands of true American heroes are over there fighting
to protect our beloved country and the cherished ideals
enshrined in our United States Constitution. It is
incomprehensible to me that we, the beneficiaries of their
sacrifice, could even think of compromising those time honored
ideals when these valiant young men and women are sacrificing
so much to protect them and our American way of life.
It is worthy to note upon closing that over the last few
weeks there has been a hue and cry by rank and file British
citizens and voters urging their government to scrap this
treaty as they have determined that it unfairly impacts on
their citizenry. Perhaps it is time that we adopt this same
conclusion with regard to the potentially devastating effect
that this proposed treaty could have on our American citizens
who have rightfully criticized the many documented human rights
violations perpetrated by the British Government and their
military units on the Catholic Nationalist minority community
in the North of Ireland.
We urge the members of the United States Senate to very
carefully study the possible detrimental effects that this
proposed treaty might impose on United States citizens and vote
to soundly reject the acceptance of Treaty Document 108-23.
May I take this opportunity to extend my personal thanks,
as well as those of the entire membership of the Ancient Order
of Hibernians to the United States Foreign Relations Committee
for allowing me to express our opposition to the acceptance of
this very dangerous treaty in this open forum.
Distinguished members of the committee, as a footnote to my
statement, I believe I should tell you very frankly, that
unlike some of the other persons giving testimony here today, I
am neither a professor, nor an attorney. I am a person who is
fiercely proud of his heritage and deeply concerned about the
human rights violations that have taken place in Ireland over
the last 35 years. But more importantly than that, I am an
American citizen, a veteran, and a political activist. As such,
I believe I have every right to express my opinion, whether or
not it is in concert with that of the British Government in
their policies with regard to the North of Ireland, without
fear of reprisal. That right is guaranteed me in the United
States Constitution. Under no circumstances will I stand idly
by, and watch the rights and privileges that are guaranteed to
American citizens in the Constitution of the United States to
be eroded, in order to pacify a foreign government.
Thank you very much, Mr. Chairman, thank you very much, Mr.
Dodd.
[The prepared statement of Mr. Meehan follows:]
Prepared Statement of John J. Meehan, Jr.
Distinguished members of the U.S. Senate Foreign Relations
Committee, guests, and others present, my name is John J. Meehan Jr. I
reside at 60 Longwood Road Quincy, MA. I am the National President of
the Ancient Order of Hibernians in America, the oldest, largest, and
only nationally represented Irish Catholic fraternal organization in
the United States. The Ancient Order of Hibernians is widely recognized
as the quintessential Irish American organization and the most highly
respected voice of the Irish in America. As National President, I am
authorized to speak on behalf of the approximately 80,000 members of
our noble Order, the vast majority of whom are American citizens and
voters in the 46 states in which we are represented. Thousands of our
members are also veterans of the United States armed forces.
Although I have a deep and abiding love for Ireland and her people
as evidenced by the fact that I am also a citizen of Ireland, a
property owner there, and a speaker of the Irish language, whose late
wife and current wife were both born there, there is no doubt that my
first allegiance is to the country of my birth and in whose armed
forces I very proudly served. Thaw country is, of course, the United
States of America.
And now if I may, let me cut right to the chase and give you some
background on what we, the members of the Ancient Order of Hibernians,
do.
Are we primarily activists in issues that affect Irish Americans
and Catholics? The answer is clearly yes.
Have we spoken out in opposition to documented human rights
violations by the British Government in the North of Ireland throughout
the recent conflict from 1968 to the present? The answer is clearly
yes.
The human rights violations to which I refer were perpetrated on
the Catholic Nationalist minority community on a regular basis during
the conflict and verified by such respected human rights advocacy
groups as Amnesty International, the European Court of Human Rights,
and Human Rights Watch.
Do we advocate violence? The answer is absolutely not.
As a matter of fact we are bound by the Preamble to our National
Constitution which requires us ``to aid and advance by all legitimate
means the aspirations and endeavors of the Irish people for complete
and absolute independence, while promoting peace, justice, and unity
for all of the people of Ireland.''
We are on record as solidly supporting the full implementation of
the Good Friday Agreement including all of the policing reforms
recommended by the Patten Commission. We are also on record as having
recommended complete disarmament by the Irish Republican Army long
before that became a reality.
Now let me give you some of the reasons why we, as American
citizens and voters, vehemently oppose the acceptance of this treaty by
our government.
We can not overemphasize the fact that contrary to the opinion of
some persons who should know better this is not an Irish issue. Our
position is that any treaty which negatively impacts American citizens
is an American issue, pure and simple.
There is already an extradition treaty in existence between the
United States of America and the British Government. It has for all
intents and purposes served both nations well for quite some time
while, at the same time, not sacrificing the rights guaranteed to
American citizens in our most cherished document, the Constitution of
the United States of America. The proposed treaty does not include
these constitutional guarantees.
Why would the United States government need this proposed treaty in
order to extradite anyone we seek in fighting the war on terror? Have
we not already extradited a number of people under the ``British
Extradition Act of 2003?''
It would appear then that the only logical reason for the
ratification of this proposed treaty is to make it easier for the
British Government to extradite American citizens. Are we wrong in
making this assumption? We don't believe that we are.
Further, British subjects extradited to the United States are
guaranteed the right to a trial by jury, the right to remain silent,
the presumption of innocence, and all other rights guaranteed to
American citizens by our Constitution.
However, if this proposed treaty is ratified, American citizens
extradited to Britain are not guaranteed those same rights that we
grant to British subjects. Is this not a true statement?
Why then would the United States Senate, a legislative body elected
by the citizens of the United States, even consider ratification of a
treaty which ensures our constitutional rights to persons from foreign
countries that are extradited to our country, while denying these same
rights to United States citizens sent to face trial overseas?
Is it not a true statement that this treaty proposes surrendering
the constitutional rights of United States citizens for the sole
purpose of avoiding political embarrassment for the British Government
ahead of their upcoming elections?
At the prior hearing on this treaty which was held on November 15,
2005, Senator Lugar, the Chairman of the committee clearly stated that:
``The committee will consider this treaty and expects to hold an
additional hearing next year from witnesses outside our government.
Today we want to establish a record of the administration's views on
the treaty to which the committee and all interested parties can refer
as we come continue our deliberations.''
With all due respect to Chairman Lugar, I certainly hope that the
good citizens giving testimony today, in opposition to the
administration's position on ratification of this treaty are not
considered ``witnesses outside our government.'' If so, one would have
to wonder what became of the phrase we all learned as school children,
``government of, for, and by the people.''
Can we live with a document between our country and Britain that
transfers the sole responsibility for determining whether an
extradition request is politically motivated, or not, from the federal
courts to the executive branch thereby denying American citizens their
right to have their day in court before an impartial judge? The answer
is clearly no.
Never before in our Nation's history has our government even
considered subjecting the liberty of American citizens to the whims of
a foreign government.
Can we live with a document that allows for the provisional arrest
and detention of American citizens for 60 days upon request by the
British Government without even submitting a formal extradition request
providing details supporting the reason for the request. The answer is
clearly no.
The proposed treaty permits Retroactive Application. Simply stated
this means that the terms of the proposed treaty will apply
retroactively for offenses allegedly committed before the treaty's
ratification. It also provides that American law need not have been
violated in order for extradition to take place.
If this treaty is ratified, no American citizen who is or ever has
been active in Irish political affairs and who has publicly spoken in
opposition to British governmental policy in the North of Ireland will
be safe from the possibility of being extradited to Britain for merely
exercising his right to free speech guaranteed under the First
Amendment of the Constitution of the United States of America.
It is a sad day, indeed, when the United States of America, the
greatest democracy the world has ever known, would allow the
pacification of any foreign government, regardless of how close an ally
they may be perceived to be, to take precedence over protecting the
constitutional rights of American citizens.
Whether one agrees or disagrees with our country's involvement in
the war in Iraq and Afghanistan, the fact is that thousands of true
American heroes are over there fighting to protect our beloved country
and the cherished ideals enshrined in our United States Constitution.
It is incomprehensible to me that we, the beneficiaries of their
sacrifice, could even think of compromising those time honored ideals
when these valiant young men and women are sacrificing so much to
protect them and our American way of life.
It is worth noting, upon closing, that over the last few weeks
there has been a hue and cry by rank and file British citizens and
voters urging their government to scrap this treaty as they have
determined that it unfairly impacts on their citizenry.
Perhaps it is time that we adopt this same conclusion with regard
to the potentially devastating effect that this proposed treaty could
have on our own American citizens who have rightfully criticized the
many documented human rights violations perpetrated by the British
Government and their militant units on the Catholic Nationalist
minority community in the North of Ireland.
We urge the members of the United States Senate to very carefully
study the possible detrimental effects that this proposed treaty might
impose on United States citizens and vote to soundly reject the
acceptance of Treaty Document 108-23.
May I take this opportunity to extend my personal thanks as well as
those of the entire membership of the Ancient Order of Hibernians to
the U.S. Senate Foreign Relations Committee for allowing me to express
our opposition to the acceptance of this very dangerous treaty in this
open forum.
The Chairman. Well, thank you very much, Mr. Meehan, we
appreciate your testimony and your thoughtfulness as you've
proceeded. We look forward, now, to hearing from Dr. Robert
Linnon. Would you please proceed, doctor?
STATEMENT OF PROFESSOR ROBERT C. LINNON, Ph.D., IRISH AMERICAN
UNITY CONFERENCE, WASHINGTON, D.C.
Dr. Linnon. Thank you, Mr. Chairman. I'd like to express my
greetings to all of the other members of the committee who are
here, to other witnesses, and especially to the audience, which
includes my wife. So, I had to make sure I included her.
Now, what is the Irish American Unity Conference? It's
devoted to a peace and justice in the United Ireland, through
non-violent means. We send no money to Ireland, and we have
never done that. We never want to be accused of supporting the
armed conflict in Ireland, we simply don't do it.
Now, I was informed that you'd let me just summarize my
written testimony. And I can do that in two words: grossly
unfair. These are the points in my written testimony.
It ignores the separation of powers, which is at the heart
of our Constitution. It's supposed to keep things balanced. And
yet, some presidents, I've been led to believe, abuse their
presidential powers. I'm not referring, of course, to the
current administration, but it is something that has to be
considered in the approval of this treaty. It denies those
charged with having a day in court. That is so fundamental to
our basic way of life here in America. I can't conceive of why
the United States Senate would even consider any treaty which
denies the right of an American citizen to go before an
impartial judge and make his case.
Thirdly, it allows for provisional arrest of up to 60 days.
Do you know what can happen when you arrest a person for 60
days? Put him in jail, his reputation is ruined. Secondly, he
could lose his job in that time, it can cause many financial
problems, and it's simply unfair without just cause. And just
cause comes from the supposition of a foreign government.
Which, incidentally, has no Constitution, and no Bill of
Rights. That's the government that's asking us to take rights
away from our own citizens for their benefit. Very important
consideration.
It also provides that American law need not be violated,
which impacts on our First Amendment rights of free speech.
And, the retroactive application. If that is approved, it can
even apply to activity before the approval of this treaty. I
mean, that's grossly wrong.
And I do want to stress that our testimony here today is
simply an effort to preserve our basic Constitutional rights
and civil liberties.
I want to tell you, when I graduated from high school in
1955, the United States was in an international conflict to
preserve all of the freedoms that we enjoy. I volunteered for
service in the United States Navy and I served two years and
never, never in my wildest imagination would I dream that the
United States Senate would consider taking away such basic
rights. That's the way I feel about this treaty.
The United Kingdom in Northern Ireland has a terrible,
atrocious record of human and civil rights violations. I could
enumerate them, but surely you're aware of them. And I know
many of those subjected to those abuses personally. I mean, I
don't speak in an abstract sort of way here. I know what goes
on in Northern Ireland, I've seen it so many times, and it's
essentially wrong.
Now, one of our members wrote to a member of this committee
some time ago, and the Senator wrote back. And I will read you
part of his letter to his constituents. He says, ``The United
States has a long history of protecting persons within its
borders from extradition for politically motivated crimes. It
is important to me that the proposed treaty with the United
Kingdom continues this tradition.'' It doesn't. It doesn't, and
it frightens me to think that the United States Senator and
this committee wrote that to one of his constituents. I find
that very difficult to understand.
I'd just like to point out a couple of other things. The
United Kingdom recently sent two females over to this country
to address many of you Senators and this committee. And I can
understand what happens there, women with a charming British
accent, and the epitome of respectability appeal to the
Senators, and the basic facts are overlooked, and that's why
we're here today--to make sure that they are not overlooked. I
was President of the Irish American Unity Conference in 1985
when the previous Supplemental Extradition Treaty was approved.
And at that time, I thought we conceded many points we didn't
want to concede, but we were convinced that maybe as a tradeoff
there was a balance, and we should go with it. Senator Lugar,
I'm sure that you remember all of that.
Now, here we are again, facing further erosion of our basic
rights. I beg you, I beg you not to approve this treaty. Even
right now, what's happening in Northern Ireland is, it's just
so typical of the way the United Kingdom has treated one of its
colonies, that it prefers to keep as a colony for numerous
reasons.
The Good Friday Agreement was mentioned earlier, approved
in 1998--where is it now? In limbo. Why is it in limbo? Because
the British Government accused the IRA of having a spy ring in
the assembly. And so it suspended the Good Friday Agreement.
Was anyone ever prosecuted or charged with that crime? All
charges were dropped. And it turns out later that one of their
key witnesses in that debacle was a spy for the British
Government. I mean, does it appear like an inside job to have
this spy ring revealed and exposed so that the assembly could
be dissolved? Subsequent to that there was, I guess you could
say, a bar fight, and a couple of members of the IRA who were
there--not in the capacity of being an IRA member, but simply
for a few drinks--got in a fight and they killed another bar
patron. That also became a reason to, not to reinstall the Good
Friday Agreement, and the assembly and the executive. Did the
IRA have anything to do with that? No, absolutely not.
This--all these years now since that spy ring case about 8
years ago--the assembly has not been operating again. I mean,
we asked for our own government--I won't say we as in me--but
that's our position. Every state, whatever you want to call it,
it's only six counties, would like to have their own
government. But because of gerrymandering and manipulating,
they haven't got it. Even--and this came as a complete shock to
me--my first trip to Northern Ireland was 1973. I found out at
that time that if you didn't own property in Northern Ireland,
you couldn't vote. And if you were a Catholic, you couldn't get
a good job, you were hired occasionally, low man on thetotem
pole, and when things got tough, you were let go.
Now, how can you buy a home, how can you buy a piece of
property when you can't even get a job? And so therefore, they
couldn't vote. The city of Derry has had a Catholic majority
forever. They never had a Catholic mayor until just very
recently. Because of the gerrymandering that took place.
Those are the things that are grossly unfair, and they have
all been perpetrated by this United Kingdom, the government
that is asking our United States Senate to relinquish our
Constitutional rights. Thank you, gentlemen.
[The prepared statement of Dr. Linnon follows:]
Prepared Statement of Professor Robert C. Linnon, Ph.D.
I am very grateful for the opportunity to express my concerns with
the pending United States-United Kingdom Extradition Treaty now being
considered for ratification by the United States Senate. I am here
today to express my opposition to the proposed treaty for a variety of
reasons. Since I don't want to speak in generalities I would now like
to enumerate those objections.
Article 2, section 4, page 4 allows for extradition even if no
United States federal law has been violated.
Article 4, pages 5 and 6, basically removes the political exception
protections. The current extradition treaty, still in force, provides
the very important safeguard that:
. . . extradition shall not occur if the person sought
establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or
punish him on account of his race, religion, nationality, or
political opinions. . . . (Article 3(a), U.K.-U.S. Supplemental
Treaty, 1986)
This protective language is missing from the new proposed
extradition treaty between the United States and Great Britain.
This agreement would hinder our First Amendment right of free
speech. If the new treaty is ratified, an American citizen who opposes
British policy--for example, an investigative journalist who wrote of
current and past police abuses in the north of Ireland for an American
newspaper--could face arrest and extradition without having any ability
to challenge, in an American court before an impartial judge, whether
the criminal charges are really a pretext for the punishment on account
of race, religion, nationality or political opinion. This denial of due
process and our ``day in court'' is something totally foreign to our
American way of life and a serious erosion of over two centuries of
freedoms every American takes for granted.
Article 4, sections 3 and 4, page 6. The last two sentences of
these sections remove the role of the judiciary from the extradition
process. These sentences transfer responsibility for determining
whether the extradition request is politically motivated from the
federal courts to the executive branch. Under this provision a person
will not have the right of his or her ``day in court'' before an
impartial judge. This will seriously impact the separation of powers
that is at the very heart of our American system of law.
Article 6, page 6. The terms of the proposed treaty will apply
retroactively for offenses allegedly committed even before the treaty's
ratification. No American citizen active in Irish and Irish American
affairs who oppose British policy in the north of Ireland will be safe
if this treaty comes into force.
Article 12, page 9. The new treaty will allow for provisional
arrest and detention of Americans for 60 days upon request by Great
Britain with no formal extradition request providing supporting
details. Under this provision, a person will not have the right of his
or her ``day in court'' before an impartial judge.
Article 16, page 11 and 12. The new treaty allows for the seizure
of our assets in the United States by the British Government.
In conclusion I am strongly opposed to this treaty because so much
of what is being proposed ignores and rebuts our Constitution and the
Bill of Rights. It is suspected that this treaty is, in large part,
intended to stifle Irish-American support for the full and rapid
implementation of the Good Friday Agreement which could facilitate a
full democracy in the partitioned six counties and for any active
support for a united Ireland.
This treaty:
1. Ignores the separation of powers because it transfers
responsibility from the federal courts to the executive branch;
2. Denies those charged with having a day in court;
3. Allows for provisional arrest;
4. Provides that American law need not be violated; and
5. Permits retroactive application to alleged activity
conducted even before the treaty's ratification.
This effort on our part has nothing to do with Homeland Security or
partisan politics. It is solely an effort to preserve our basic
constitutional rights and civil liberties.
This treaty could, and undoubtedly will release American citizens
to a government with no constitution and no bill of rights, and with a
terrible record of human and civil rights. There are numerous cases on
record of confessions being extracted by torture or threats to one's
family if the suspect would not confess. These are not from the time of
our American Revolution against the very same country that is now
trying to gain by diplomacy what they could not gain by force, they are
of very recent vintage.
I implore you not to open this door to gross injustices. I implore
you to defeat this treaty.
The Chairman. Thank you very much, Dr. Linnon, for your
testimony. I'd like to call now on Professor Morris. Please
proceed.
STATEMENT OF MADELINE MORRIS, PROFESSOR, DUKE UNIVERSITY LAW
SCHOOL, DURHAM, NORTH CAROLINA
Professor Morris. I must say, and I wasn't planning to say,
that I've been very moved by the testimony that I've heard so
far, and by the enormous recognition given to the value of our
basic rights and our Constitution and protections that we enjoy
under it--I just couldn't possibly agree more and I felt very,
very, as I said, touched in hearing that. And I would oppose
the treaty if I had the view of it at all that it put into
question or into any kind of jeopardy those rights that we all
do value.
I think there are misunderstandings about the effects of
the treaty and about what the treaty does and doesn't do. And
for that reason, and only that reason, I don't think that it
ought to be rejected on the grounds that have been raised, and
I will explain why, of course.
Before doing that, I need to correct one point on the
record. It's been suggested by Professor Boyle in various
contexts that I work for the State Department. I do not have
that honor, and I've never had that honor, and so that is a
mistake that ought to be recognized as such.
In the brief time that we do have, I'd like to address two
of the concerns that have been voiced, or two sets of concerns,
about rights Constitutional and other general human rights
internationally, that it is said would be violated by adoption
and ratification of this treaty.
It's been suggested first that the treaty violates rights
that are protected under the International Covenant on Civil
and Political Rights, the ICCPR. And second, it's said that the
treaty would violate the prohibition against the retroactive
application of criminal laws. That has been posed in a number
of different ways, and I will address each of the different
scenarios that are presented for how we would end up with--if
we were to have this treaty in force, with retroactive
criminalization.
First, the treaty as I've said, is purported to be unlawful
under the International Covenant on Civil and Political Rights.
For example, one of the documents that you have before you for
this hearing is a letter by Professor Boyle, who unfortunately
is not with us, dated March 4, 2004 to Senators Lugar and Biden
stating that the proposed treaty would violate 19 specified
provisions of the ICCPR. Exactly how or in just what ways the
treaty would violate those provisions isn't addressed in the
letter.
Also not addressed in the letter is the complex and just
fundamental threshold question of which ICCPR provisions would
obligate, or states which of the parties in an international
extradition proceeding would be bound by which of the Covenant
provisions. Obviously that question would need to be answered
before we could determine whether the treaty would violate any
U.S. obligations under the ICCPR. If we look at the ICCPR
carefully, we see that some of the provisions are, in there
terms, applicable to only the requested state or to only the
requesting state, so we would have to sort out which
obligations fall to which states before even producing a
genuine analysis of whether and when this treaty would violate
the provisions of the ICCPR.
That said, I'm going to--in order to fully address the
substantive concerns, the concerns going to the basic
fundamental rights--I'm going to proceed as though all of the
ICCPR provisions did apply to this treaty, because again the
rights that are implicated are what need to be addressed, even
without regard to whether U.S. obligations under the ICCPR
specifically are violated from a legal point of view.
It appears to me that even if we assume, for argument, that
the 19 cited provisions allegedly violated by the new treaty,
that those provisions actually would not be violative of the
ICCPR and not unlawful under the ICCPR in any way. My analysis
that leads me to that conclusion is as follows: Five of the 19
ICCPR provisions purportedly violated by the treaty concern the
rights of freedom of religion, opinion, expression, assembly
and association. Obviously the rights also protected by our own
first amendment to the U.S. Constitution. Nothing in the
proposed treaty threatens or impinges on the peaceful exercise
of those civil and political rights. To the contrary, the
treaty provides explicit protection of those rights in the
context of extradition. Article 4 of the treaty states that,
``extradition shall not be granted if the offense for which
extradition is requested is a political offense.'' By doing
that, the treaty prohibits extradition for political crimes
such as treason or sedition--again, crimes constituted by their
political content.
Article 5 of the treaty further protects those rights by
requiring ``extradition shall not be granted if the competent
authority of the requested state determines that the result was
politically motivated.'' So that even in a situation like the
one described, in which there was a bar fight, a regular common
crime of murder was committed, that crime would not have been
considered a political crime and therefore exempted from
extradition, because it wasn't committed for political
purposes, however, after the treaty gets through the question
of if it's a political offense, the treaty then also has
provision for a questioning of the political motivation for the
prosecution. So that if it were the case that those
prosecutions that you spoke of were motivated because of the
fact that thee were IRA members, that also would be looked at.
So, you have two different kinds of protection if the offense
itself is political, or if the prosecution decision is
politicized. Both of those protect the underlying civil and
political rights at issue here, and they need to be understood
as distinct protections and protections that provide for a
sophisticated political analysis as well, to be provided as
another part of the protection against violation in the
extradition context of the principles covered by the First
Amendment.
Even while providing those protections for the peaceful
exercise of civil and political rights, the treaty explicitly
excludes from the definition of ``political crimes'' grave
violent crimes and weapons offenses. Under the treaty, those
crimes are recognized for their violent nature regardless of
whether that violence was driven by political beliefs or
otherwise. Fully in accordance with the ICCPR and other
multilateral conventions, the U.S.-U.K. Extradition Treaty does
not accord to alleged perpetrators of alleged serious violent
crimes, the protections afforded to those accused of political
crimes that are a peaceful, if forceful, exercise of political
rights. As the ICCPR itself states: ``Nothing in the present
Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act
aimed at the destruction of any of the rights and freedoms
recognized herein. . . '' Similarly, under the multilateral
conventions on hijacking and other crimes on aircraft, hostage-
taking and other violent crimes that typically are committed
for political purposes, the covered crimes are subject to
prosecution ``without exception whatsoever'' and they're not
considered political offenses.
In the same vein, the U.N. General Assembly in its 1986
resolution asks states to ``cooperate in combating terrorism
through the apprehension and prosecution or extradition of
terrorists, and the conclusion of treaties regarding the
extradition or prosecution of terrorists.'' And it provides no
protection in terms of treating violent crime as a political--
coming under the political exception to extradition, and
therefore as an exception to these provisions that require
states to extradite or prosecute individuals suspected of
terrorist offenses. And so the treaty before you does not
violate the protected civil or political rights reflected in
our First Amendment or our International Covenant by excluding
crimes of the greatest violence from the political offense
classification.
Also among the rights provisions that this treaty
purportedly would violate are provisions articulating a set of
rights protecting criminal suspects and defendants. Of course,
extradition proceedings aren't criminal proceedings, and so the
rights applicable to criminal proceedings don't properly apply
to this extradition treaty, but nonetheless if we were to
entertain an analogy between extradition proceedings and
criminal proceedings it is not clear how the treaty would
violate the rights in question: rights to a speedy, fair,
public trial or extradition hearing; to a presumption of
innocence; to freedom from arbitrary arrest and the like. The
treaty--especially when put together with the body of U.S. law
governing extradition--provide multiple safeguards going to due
process, sufficiency of the evidence, authentic documentation
and the like. And then to foster the efficacy of those
safeguards, habeas corpus review is available to detainees
pending extradition. For those reasons, if the rights
applicable to criminal proceedings were, in fact, applicable to
this treaty--which they are not--nevertheless the treaty would
satisfy them, and the treaty satisfies the underlying
principles embodied in the ICCPR provisions.
There's also complained of, a violation of the general rule
of the ICCPR favoring the pre-trial release of individuals
subject to guarantees to appear for trial. Again, that refers
to a criminal trial--not an extradition proceeding--but using
our analogy, it's important to note that in the United States,
U.S. courts can and sometimes do grant bail pending extradition
hearings, and U.S. Supreme Court has indeed upheld the right of
courts to grant bail in that context.
The other rights, the other main rights objection or
complaint that has been raised about the proposed treaty goes
to the idea that the treaty would criminalize conduct
retroactively, and that is an important point that has been
raised in a number of different--with reference to a number of
different treaty provisions--and so I would like to go through
those separately in order to address them. It's a terribly
fundamental concept for a constitutional system that we can't
have conduct criminalized after it's already been performed.
And so I will address the three ways that this treaty would
purportedly permit that, but where I don't think that is
actually the case.
The ICCPR provision on retroactivity--just to lay out the
rule--is that ``no one shall be held guilty of any criminal
offense . . . which did not constitute a crime at the time when
it was committed.'' The principle is well known and is
embodied, of course, in the ex post facto clause of the U.S.
Constitution.
Now it's claimed that articles 2, 6 and 22 of the proposed
treaty each violate this rule against retroactivity. In fact I
believe that none of those provisions do violate the
retroactivity rule.
Article 2(4) of the treaty governs cases in which the
substantive elements of a crime meet the dual criminality
standard, but the jurisdictional elements differ in that the
law of the requesting state provides for extraterritorial
jurisdiction over that crime, while the law of the requested
state does not. Article 2(4) provides that under those
circumstances, the requested state may, at its discretion,
grant extradition.
It's asserted that that permits retroactive
criminalization. The assertion in the documents I've read is
not accompanied by a fully articulated argument, but my
understanding is that the outline of that argument would be
something like the following: First, the argument is
necessarily premised on the proposition that jurisdictional
differences defeat dual criminality, which is inaccurate.
States are very different in their treatment of jurisdictional
provisions when they evaluate the, when they try to equate or
find different, the criminal statutes of two different states
in order to make a dual criminality determination. The practice
of the United States has tended to consider dual criminality
requirements satisfied, notwithstanding differences in the
scope of jurisdiction exercised over that crime by the
respective states. Even within the treaty we're looking at that
you have before you, in which Article 2(4) is being questioned
in this respect, if you look at the preceding paragraph, under
Article 2(3), we say there that we will consider dual
criminality to be met even if the U.S. Federal law in question
requires use of the Federal mails or other hooks with Federal
jurisdiction, even if those jurisdictional provisions aren't in
place in our extradition partner's law. Nevertheless, we say
that's merely jurisdictional, just as Article 2(3) says here,
and we nevertheless find that dual criminality is met. And in
the domestic context in the U.S. we do the same.
So, jurisdictional differences don't necessarily defeat
dual criminality, but nevertheless, based on that premise, the
argument seems to go forward that if we then allow extradition
in that context, where jurisdictional differences exist between
the two criminal statutes in the two states, that then somehow
that means that conduct that was, that the conduct being
prosecuted is being retroactively criminalized in the requested
state, and that's simply flawed in its logic regardless of
differing jurisdictional scope, and regardless of whether dual
criminality is met or not.
Under Article 2(4) of the treaty, the alleged perpetrator
is held liable only if he committed the conduct while in the
jurisdiction in which he committed that conduct, that conduct
constituted a crime at the time of its commission. He is only
being extradited for having committed a crime that, where he
committed it was indeed a crime at the time of its commission.
As long as that's so in the requesting state, the state where
the crime occurred, extradition by the requested state does not
retroactively criminalize the conduct--the requested state is
not prosecuting, and has therefore not imposed any criminal
liability at all. The requesting state is prosecuting based
upon criminal provisions that were in place at the time of the
conduct, so that neither state violates the retroactivity rule.
It's claimed that Article 6 of the treaty constitutes yet
another violation of the rule against retroactive
criminalization, by saying that ``The decision by the requested
state whether to grant the request for extradition shall be
made without regard to any statute of limitations in other
State.'' But Article 6 doesn't criminalize anything,
retroactively or prospectively.
Now, as it happens, Article 6 also doesn't abolish statues
of limitations. The statutes of limitations in the requesting
state, the place where the prosecution will occur remain in
place just as they normally would in any prosecution. All the
treaty says is that it is that state that will make a
determination of the application of the statute of limitations
in that particular instance.
But even if it did eliminate a statute of limitations, even
if Article 6 were to have said ``whenever we extradite under
this treaty, no statutes of limitations will apply,'' it still
wouldn't retroactively criminalize any conduct in each case--
the conduct in question has to have been in place at the time
that the conduct was committed.
Article 22 of the treaty, which is the last of the three
articles which it is said leads to a retroactivity violation
states, ``this treaty shall apply to offenses committed before,
as well as after, the date it enters into force.'' It is said
that by applying the treaty retroactively, as it were, somehow
this is criminalizing conduct retroactively. That is not the
case. Article 22 presents and refers to a framework to govern
extradition for crimes that were committed when they were
already criminalized in the jurisdiction where they were
committed, so the conduct was criminal at the time, and the
treaty applies a framework for extraditing only for conduct
that was criminal at the it was committed.
And so in my view, no article of this treaty violates the
rule against retroactive criminalization. I understand the
various ways that it has been said to do that, but in my view,
and on serious consideration, I don't think that it does that,
and I don't think that it, therefore, suffers from various
serious constitutional impediment that would exist if it did.
In my view, also, as I went through at the beginning of my
remarks, no article of the treaty indeed violates the other
rights protected by the ICCPR and our Constitution that have
been the articles that have been called into scrutiny in that
respect in the context of this treaty.
Thank you for the opportunity to address these matters, and
of course, I welcome your questions.
[The prepared statement of Ms. Morris follows:]
Prepared Statement of Professor Madeline Morris, Duke Law School
Mr. Chairman, ranking member Biden, and other members of the
committee:
In the brief time that we have, I would like to address two
concerns that have been voiced with respect to the lawfulness of the
proposed U.S.-U.K. Extradition Treaty.\1\
---------------------------------------------------------------------------
\1\ Extradition Treaty Between the United States and the United
Kingdom, 31 March 2003 (Treaty Doc. 108-23).
---------------------------------------------------------------------------
It has been suggested: first, that the treaty violates rights that
are protected under the International Covenant on Civil and Political
Rights (``ICCPR''); \2\ and second, that the treaty violates the
prohibition against the retroactive application of criminal laws.\3\
---------------------------------------------------------------------------
\2\ International Covenant on Civil and Political Rights, G.A. Res.
2200A (XXI) of 16 Dec. 1966 (hereinafter ``ICCPR'').
\3\ See, e.g., ICCPR, supra note 2, art. 15; U.S. Constitution,
art. 1, sec. 9 (ex post facto clause).
---------------------------------------------------------------------------
It is suggested that the treaty is unlawful under the International
Covenant on Civil and Political Rights. For example, Professor Boyle's
March 4, 2004 letter to Senators Lugar and Biden states that the
proposed extradition treaty would violate nineteen specified provisions
of the ICCPR.\4\ How or in what ways the new treaty would violate those
provisions is not addressed in the letter.
---------------------------------------------------------------------------
\4\ Letter from Prof. Francis Boyle to senators Lugar and Biden, 3/
4/04 (on file with author).
---------------------------------------------------------------------------
The May 4, 2004 letter does not raise the complex threshold
question of which ICCPR provisions obligate which state or states in
the course of an international extradition. That question, obviously,
would need to be answered before determining whether the treaty would
violate any U.S. obligations under the ICCPR. For today, I will only
note that critical issue in passing. In order to address fully the
substantive concerns that have been raised, I will proceed as if each
of the nineteen ICCPR provisions cited were in fact relevant to U.S.
obligations under the ICCPR in the context of international
extradition. It appears to me that, even if we were to assume arguendo
that the nineteen cited provisions do apply, the treaty would not be
unlawful under the ICCPR. My analysis is as follows.
Five of the nineteen ICCPR provisions purportedly violated by the
treaty concern the freedoms of religion, opinion, expression, assembly,
and association \5\--rights also protected under the First Amendment to
the U.S. Constitution. Nothing in the proposed treaty threatens or
impinges upon the peaceful exercise of those civil and political
rights. To the contrary, the treaty provides explicit protection of
those rights in the context of extradition. Article 4 states that
``[extradition shall not be granted if the offense for which
extradition is requested is a political offense.'' The treaty thereby
prohibits extradition for political crimes such as treason or sedition.
Article 5 of the treaty provides further protection of those rights by
requiring that ``extradition shall not be granted if the competent
authority of the requested state determines that the result was
politically motivated.''
---------------------------------------------------------------------------
\5\ ICCPR, supra note 2, arts. 18, 19, 21, 22.
---------------------------------------------------------------------------
Even while providing those protections for the peaceful exercise of
civil and political rights, the treaty explicitly excludes from the
definition of ``political crimes'' grave violent crimes and weapons
offenses. Under the treaty, those crimes are recognized for their
violent nature regardless of whether that violence was driven by
political beliefs or otherwise. Fully in accordance with the ICCPR and
other multilateral conventions, the U.S.-U.K. Extradition Treaty does
not accord to alleged perpetrators of serious violent crimes the
protections afforded to those accused of political crimes that are a
peaceful, if forceful, exercise of civil and political rights. As the
ICCPR states: ``Nothing in the present Covenant may be interpreted as
implying for any State, group or person any right to engage in any
activity or perform any act aimed at the destruction of any of the
rights and freedoms recognized herein . . .'' \6\ Similarly, under the
multilateral conventions on hijacking and other crimes on aircraft,\7\
hostage-taking,\8\ and other violent crimes that typically are
committed for political purposes, the covered crimes are subject to
prosecution ``without exception whatsoever'' and are not considered
political offenses. In the same vein, the U.N. General Assembly in its
1986 resolution asks states to ``cooperate in combating terrorism
through the apprehension and prosecution or extradition of terrorists,
and the conclusion of treaties regarding the extradition or prosecution
of terrorists.'' \9\ The treaty before you thus does not violate
protected civil or political rights by excluding crimes of the gravest
violence from the political offense classification.
---------------------------------------------------------------------------
\6\ ICCPR, supra note 2, arts 5.
\7\ Convention for the Suppression of Unlawful Seizure of Aircraft,
Dec, 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105; Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974, U.N.T.S. 177.
\8\ International Convention Against the Taking of Hostages, Dec.
17, 1979, TIAS No. 11, 081, 1316 U.N.T.S. 205.
\9\ G.A. Res. 61, 40 U.N. GAOR Supp. No. 53 (1986).
---------------------------------------------------------------------------
Also among the nineteen ICCPR provisions that this treaty
purportedly would violate are the provisions articulating a set of
rights protecting criminal suspects and defendants.\10\ Extradition
proceedings, of course, are not criminal proceedings. So the rights
applicable to criminal proceedings do not apply to this extradition
treaty.
---------------------------------------------------------------------------
\10\ ICCPR, supra note 2, arts. 9, 10, 14, 15.
---------------------------------------------------------------------------
If we were, nevertheless, to entertain an analogy between
extradition proceedings and criminal proceedings, it is not apparent
how the treaty would violate the rights to a speedy, fair, and public
trial hearing, to a presumption of innocence, or to freedom from
arbitrary arrest.\11\ The treaty and the U.S. law governing extradition
\12\ provide multiple safeguards going to due process, sufficiency of
the evidence, authentic documentation, and the like. To foster the
efficacy of those safeguards, habeas corpus review is available to
detainees pending extradition.\13\ For these reasons, if the rights
applicable to criminal proceedings were applicable to this treaty--
which they are not--the treaty would satisfy them.
---------------------------------------------------------------------------
\11\ These rights appear in ICCPR, supra note 2, arts. 9, 14.
\12\ See 18 U.S.C. Sec. 3181 et seq.
\13\ See Restatement of the Law 3d, The Foreign Relations Law of
the United States, Sec. 478, Comment C; id. at Reporters' Note 2
(1987).
---------------------------------------------------------------------------
The availability of habeas review satisfies another of the nineteen
ICCPR provisions cited as being violated by the treaty. This provision
articulates the right ``to take proceedings before a court [to] decide
without delay the lawfulness of [one's] detention. . . .'' \13\ Habeas
review, clearly, is precisely what is required.
---------------------------------------------------------------------------
\14\ ICCPR, supra note 2, art. 9(4).
---------------------------------------------------------------------------
The list of nineteen also includes an ICCPR provision that
recommends a ``general rule'' permitting pre-trial release ``subject to
guarantees to appear for trial.'' \15\ Again, an extradition is not a
criminal trial and so this ICCPR provision is, in fact, inapplicable.
---------------------------------------------------------------------------
\15\ ICCPR, supra note 2, art. 9(3).
---------------------------------------------------------------------------
Nevertheless, it is worth noting that U.S. courts can and sometimes
do grant release on bail pending extradition hearings. Indeed, the U.S.
Supreme Court has specifically upheld the courts' authority to do
so.\16\
---------------------------------------------------------------------------
\16\ Wright v. Henkel, 190 U.S. 40, 63 (1903).
---------------------------------------------------------------------------
It also has been asserted that, in violation of the ICCPR, this
treaty would criminalize conduct retroactively. This brings me to the
second issue that I will address: retroactive criminalization. It is
claimed that the treaty would violate the rule against retroactive
criminalization in three separate ways.
The ICCPR provision on retroactivity states that, ``[n]o one shall
be held guilty of any criminal offense . . . which did not constitute a
crime at the time when it was committed.'' \17\ The principal is well
known and is embodied, of course, in the ex post facto clause of the
U.S. Constitution.\18\
---------------------------------------------------------------------------
\17\ ICCPR, supra note 2, art. 15.
\18\ U.S. Constitution, supra note 3, art. 1, sec. 9.
---------------------------------------------------------------------------
It is claimed that articles 2, 6 and 22 of the proposed treaty each
violate this rule against retroactivity in criminal law. In fact, I
believe, none of those provisions violates the retroactivity rule.
Article 2(4) of the treaty governs cases in which the substantive
elements of a crime meet the dual criminality standard but the
jurisdictional elements differ in that the law of the requesting state
provides for extraterritorial jurisdiction over that crime while the
law of the requested state does not. Article 2(4) provides that, under
these circumstances, the requested state may, at its discretion, grant
extradition.
It is asserted that this provision permits retroactive
criminalization. The assertion is not accompanied by a fully
articulated argument. It seems, though, that the outlines of the
argument are as follows.
First, the argument is necessarily premised on the proposition that
jurisdictional differences defeat dual criminality. That premise is
inaccurate in many or most cases. States vary in their treatment of
jurisdictional differences in evaluating dual criminality. The practice
of the United States has tended to consider the dual-criminality
requirement satisfied notwithstanding differences in the scope of
jurisdiction exercised over the crime by the respective states. The
paragraph preceding article 2(4) (article 2(3)) is typical of U.S.
treaties on this issue. Article 2(3)(b) provides that an offense shall
be extraditable ``whether or not the offense is one for which United
States federal law requires the showing of such matters as interstate
transportation, or use of the mails or of other facilities affecting
interstate or foreign commerce, such matters being jurisdictional
only.''
In the domestic context as well, U.S. law typically treats
jurisdictional provisions very differently from the other elements of a
crime. Mens rea requirements provide a good example. U.S. courts have
frequently held that the mens rea (mental state) requirement for
conviction of a given crime (i.e., negligence, recklessness, knowledge
or purpose) applies to all of the elements of a crime except the
jurisdictional elements. Those are frequently described as
``jurisdictional only.'' \19\
---------------------------------------------------------------------------
\19\ See Wayne R, LaFave, Vol. 1 Substantive Criminal Law, Sec.
4.1(b); id. at Sec. 5.1(b) n. 13 (2d ed. 2003).
---------------------------------------------------------------------------
Notwithstanding its flawed premise, the retroactivity argument
concerning art. 2(4) goes on from here. It appears to reason,
implicitly, that if, because of jurisdictional differences in the two
states' statutes on the crime, the requested state would not have
jurisdiction to prosecute but the requesting state would, then
extradition for that crime retroactively creates criminal liability for
that crime in the requested state.
That reasoning is flawed. It conflates the dual-criminality
requirement with the non-retroactivity requirement. It does so by,
first, assuming that dual-criminality is not met if there are
jurisdictional differences in the two states' provisions and then by
further assuming that, if dual-criminality is not met, then extradition
constitutes retroactive criminalization in the requested state. Neither
assumption is correct. Regardless of differing jurisdictional scope,
and regardless of whether dual criminality is met or not, under article
2(4) of the treaty, the alleged perpetrator is held liable only if he
committed the conduct while in the jurisdiction in which that conduct
constituted the crime at that time. As long as that is so in the
requesting state, extradition by the requested state does not
retroactively criminalize the conduct, The requested state is not
prosecuting and has, therefore, not imposed any criminal liability at
all. The requesting state is prosecuting based on criminal provisions
that were in place at the time of the conduct. Neither state violates
the retroactivity rule.
It is claimed that article 6 of the treaty constitutes yet another
violation of the rule against retroactive criminalization. Article 6
reads: ``The decision by the requested state whether to grant the
request for extradition shall be made without regard to any statute of
limitations in either State.'' Article 6 criminalizes nothing,
retroactively or prospectively. As a matter of fact, Article 6 does not
abolish the operation of the applicable statutes of limitations; it
merely leaves to the prosecuting state the application of the statute
of limitations required under its own laws. But even if article 6 did
abolish a statute of limitations, it still would not violate the
prohibition against criminalizing conduct that did not constitute a
criminal offense at the time the conducted occurred.
Article 22 of the treaty states: ``This treaty shall apply to
offenses committed before as well as after the date it enters into
force.'' This article too is asserted to violate the rule against
retroactive criminalization. But Article 22, like Article 6,
criminalizes nothing, retrospectively or prospectively. Article 22
concerns the framework governing extradition for crimes that
constituted crimes at the time of their commission. Article 22 in no
way conflicts with the rule against retroactive criminalization.
In sum, no article of the new treaty violates the rule against
retroactive criminalization articulated in the ICCPR and in the U.S.
Constitution. And no article of the treaty violates the other rights
protected by the ICCPR that have come under scrutiny in this context.
I thank for the opportunity to address these matters and welcome
your questions.
The Chairman. Well, thank you very much, Professor Morris.
I will now proceed to questions of the panel of witnesses. At
our first hearing on this treaty, the committee heard testimony
from the administration, and used that opportunity to seek the
administration's views regarding several concerns that have
been raised by opponents of the treaty. There are a number of
points on which the testimony the committee has received from
the panel today diverges from the testimony the committee
received from the administration. In order to ensure a
comprehensive record for the committee's consideration, I'm
going to use much of our time here today to explore these areas
of divergence with our witnesses. Many of the areas for
discussion today are raised by the written testimony of
Professor Boyle. Unfortunately, as I mentioned in my opening
statement, Professor Boyle is not able to join us. In order to
make good use of the hearing, however, I will take up issues
raised in his written testimony, and seek the views of our
other witnesses on these points.
Let me just say that we will alternate between my
questions--and they are extensive, simply to make certain that
our record is complete as possible--and questions that Senator
Dodd may raise, and after I've proceeded for awhile, Chris, I
will defer to you to take up the slack, and then I will be back
at it again.
Now, for all three of the witnesses, I have this question.
Mr. Meehan has testified that the proposed treaty ``provides
that American law need not have been violated in order for
extradition to take place.'' Likewise, Dr. Linnon has indicated
in his testimony that the treaty ``allows for extradition even
if no United States federal law has been violated.'' The
administration has testified that extradition could only take
place under the proposed treaty for conduct that is
criminalized in the United States. However, given the Federal
system in the United States, the conduct could be criminalized
under either U.S. Federal law or state law. The administration
further noted that ``this is an established practice in
extradition law . . . because we do not have a full Federal
criminal code.''
Now, Mr. Meehan, or Dr. Linnon, do either of you wish to
respond to the administration's testimony on this issue? And
then, following Mr. Meehan and Dr. Linnon's comments, Dr.
Morris, would you care to comment?
Mr. Meehan. Mr. Chairman, I've asked for permission to
utilize the services of our national legal counsel, Mr. Jim
Magee, to answer questions of a legal nature. He is eminently
more qualified to do so than I am, and I thank you for the
opportunity to allow him to do that.
The Chairman. Yes, sir.
Mr. Magee. Thank you, Mr. Chairman. I believe your question
was, the treaty as we understand it proposes to allow for
criminality in the United Kingdom where criminality would not
exist in this country. And I think that position has been
addressed fairly well by Professor Boyle in both his March 4
letter, as well as his statement that would have been presented
here today where he talks specifically--I believe we're talking
about the concept of conspiracy that would not have otherwise
been included in this country in reference to prior acts--that
existed prior to the treaty. Whether it be criminalization in
the United Kingdom would not be criminal here, and would in
fact require this country to extradite a United States citizen.
The Chairman. Thank you. Dr. Linnon, do you have a further
comment on this issue?
Dr. Linnon. Not on this issue, sir, thank you.
Senator Dodd. I have sort of a similar question, and maybe
if we could move this along a little bit.
The Chairman. Very well.
Senator Dodd. Just as a practical matter, let me raise this
with you, because this is a concern. Because this has been the
answer I think the administration's response to a question
regarding the earlier testimony suggested that, in fact, that
if a state law--was not Federal law--but was a state law
created a certain crime that would qualify, then as an
extraditable offense, we agree on that point. We have
situations, for instance, where the District of Columbia--
possession of a firearm you get, is it 12 years? Twelve months
in jail. Britain has a similar provision. Now, presumably,
someone that was apprehended in the District of Columbia where
that statute existed, or that ordinance exists, would then be
qualified as an extraditable offense. And that's where the
concern comes in here--that you would be using a jurisdictional
provision which may not, in fact very limited in the United
States, may only exist in certain areas. In fact, this
particular provision, I know, that is something that was highly
objected to by the National Rifle Association--you can imagine,
then, the suggestion that someone would be extraditable in some
of the states where a provision in North Carolina, for
instance, might have different views on the possession of a
firearm than they do in the District of Columbia. Yet, if a
person were here in the District of Columbia where that was an
offense, that would become an extraditable offense, because
Britain has a similar national law in that regard. That is a
concern that people have about this. How do you address that?
Professor Morris. Yes, I'd be happy to address it.
Senator Dodd. Did you understand the point that I made?
The Chairman. I think that I do, perhaps Professor Morris
does. Would you please proceed?
Professor Morris. Thank you. There are two ways in which
that potential problem is eliminated, or virtually eliminated.
One is by operation of law itself. It is not necessarily the
case that the law of the state or jurisdiction where the
suspect is found, not necessarily the case that that's the law
that will then be compared with foreign law in order to
determine dual criminality.
Senator Dodd. The residence?
Professor Morris. It may not necessarily be the state with
which the subject has nexus, if the state with which the
suspect has nexus is, if that state's law on the subject is in
some sense anomalous, another option which is sometimes applied
is to look at the laws that exist in most, or many, states. And
that is a choice to be made.
Senator Dodd. Isn't that an unequal application of law? I
mean, if I live in the District of Columbia, I'm extraditable,
if I live in Maryland or Virginia, I'm not.
Professor Morris. Well, that's what I'm saying is remedied.
I'm sorry, I haven't been clear enough. The point, precisely,
is that it need not necessarily be the law in the District of
Columbia that is applied, it's sometimes, it's the law where
there's, the place where there is nexus, and sometimes instead,
a general survey of state law on the subject is undertaken and
some rough estimation of what most U.S. law is with reference
to this crime is what is used instead as the baseline for a
number of reasons, including to avoid anomalous situations
where you have a suspect that is unfortunate enough to have
showed upon the wrong jurisdiction.
Senator Dodd. Doesn't this raise the problem, potentially,
of forum-shopping by the Justice Department, in a sense? Where
you go around in order to get an extraditable offense, you
would find a state that had an extraditable offense that the
U.K. would have as well and the danger of forum-shopping for
that purpose? I don't want to dwell on it, I think it's an
interesting point, but it just raises concerns with me about an
unequal application of law here.
Professor Morris. I guess that would be true of any
extradition treaty.
Senator Dodd. Thanks. Indeed, did you want to comment on
that? Did you have any comments on this?
Dr. Linnon. I see your point, Senator, but I don't see how
it's easily resolved if the legislation is different in
different jurisdictions.
The Chairman. Very well. We'll try another question. Mr.
Meehan explained in his testimony that he opposes the treaty in
part because he believes it would allow persons to be
extradited to the United Kingdom, and I quote ``for merely
exercising their right to free speech, guaranteed under the
First Amendment of the Constitution.'' Professor Boyle has
similarly asserted in his written testimony that this treaty
would violate the United States Constitution by permitting the
extradition of U.S. citizens for conduct protected under the
First Amendment.
The committee raised this very serious matter with the
administration witnesses at the November hearing. The
administration explained as follows, and I quote, ``the treaty
requires the finding that the conduct at issue would constitute
a criminal offense punishable by a sentence of one year or more
if committed in the United States. Since engaging in
constitutionally-protected free speech cannot be punished in
the United States, this test of dual criminality would fail,
and therefore the conduct in question would not be
extraditable.''
Now, Mr. Meehan, how do you respond to the administration's
statement?
Mr. Meehan. Mr. Chairman, my understanding is that any
speech, any opposition to British policy in the North of
Ireland would be extraditable under this new treaty. That's the
understanding that I have, and that is why I made that
statement. I hope that answers your question.
The Chairman. Well, it explains at least your view, and
your belief about the subject. I'm not here to argue with you,
we're really trying to establish----
Mr. Meehan. Absolutely not, Mr. Chairman, I'm not trying to
be argumentative, I'm merely stating my position.
The Chairman. I understand, and I asked you to do that. Dr.
Linnon, would you like to comment further on this issue?
Dr. Linnon. No, thank you, Senator.
The Chairman. Professor Morris, what is your view of the
issue? Do you believe the dual criminality test adequately
shields conduct that is protected by the First Amendment from
being extraditable under this treaty? And what other
protections does the treaty provide for such conduct?
Professor Morris. The dual criminality requirement provides
enormous protection for First Amendment rights, and maybe alone
would be enough. But it is not alone. There are protections for
the same principles embodied in the political offense exception
and the political motivation enquiry. The dual criminality
requirement, in effect, prohibits extradition for prosecution
of conduct that would receive protection under the U.S.
Constitution, in other words, under dual criminality, the U.S.
can only extradite if we would be able to prosecute here for
the conduct in question. We can't prosecute here for conduct
that is protected by the First Amendment, so the dual
criminality requirement provides enormous, virtually complete
protection in that way.
But then there is the possibility of manipulation of
exceptions, and so the political offense exception to
extraditability takes up the slack there.
The Chairman. Now, specifically, if Mr. Meehan was in a
public forum in the United States as a citizen, he makes some
comments about Northern Ireland, about politics, about the
administration of justice, about whatever--now he's concerned,
and we would be too, that these comments about Northern
Ireland, about politics, about British administration of
justice or whatever would lead him to potentially being
extradited to the United Kingdom for prosecution. Now, that is
the concern as I understand it, and now you're asserting that
he could not be extradited--do I hear you correctly?
Professor Morris. Yes, he absolutely could not be
extradited under American law in those circumstances, if the
supposed crime were limited to political speech, to an
expression of opinion about a political topic with regard to
the United States or anywhere else in the world. If that were
the conduct constituting the purported crime, then that
individual could not be under U.S. Constitution and statutory
law, extradited for that offense for the reasons both that they
couldn't be prosecuted here for saying that, and so dual
criminality is not met, and also because, if the offense were
limited to political speech, does it include violence and so
on? And then it would be a political offense under the treaty,
and therefore, not be subject to extradition.
If all of that failed, and somehow there were some prospect
of extradition, then presumably a political motivation would be
identified that would also provide discretion, at least, to
prevent that extradition. But it wouldn't get that far. The
fact of the matter is that if we couldn't prosecute here
because of the First Amendment, then we can't extradite for
that very conduct because of the First Amendment.
The Chairman. Mr. Meehan?
Mr. Meehan. Excuse me, Mr. Chairman, but I seem to
understand that these determinations up to this point have been
made in a court of law. And the new treaty removes that
determination factor from a court of law and turns it over to
the executive branch, who is to determine whether the executive
branch follows through on the rule of law in the same way that
a court would follow through on a question of this nature?
These are some of the things that scare us.
The Chairman. Does anyone have a response?
Dr. Linnon. If I could make a comment, Mr. Chairman.
Article 4, sections 3 and 4--the last two sentences of these
sections remove the role of the judiciary, and it turns it over
to the executive branch, so Professor Boyle is talking about
current law, the law is going to change when this treaty is
approved--that is my concern.
The Chairman. Well, we probably should raise that later
with the administration. Is the executive branch not subject to
the law and to the courts? My guess is, as an American citizen,
probably so. But nevertheless, it's important, the binding
aspects of the treaty. Yes, Professor Morris?
Professor Morris. I think this is one of the points that
requires clarification. The determination of extradition, the
determination of whether there is sufficient evidence, the
determination of whether the offense is political, remains with
the courts. That was true before, that is true now. The
Judiciary conducts a hearing in which those conditions are
addressed. If we look at the conditions for the political
offense exception under Article 4, we see that it is the judge
or magistrate carrying out the hearing that determines not only
whether there is sufficient evidence presented, but whether the
offense was political, and therefore exempt from extradition.
Where the Executive comes in and why this treaty is different
from the Supplementary Treaty of 1985 is that it is the
Secretary of State and the judge that determines the political
motivation. Where there is no political exception for
extradition, the person would be perfectly extraditable, the
only remaining protection is the question, is the requesting
state doing this in order to prosecute this person for
political purposes? That question has been taken from the
judicial realm to the Secretary of State where it is for all
other U.S. extradition treaties. I understand the argument that
this is different, but it's been taken there, not in order to
limit the judicial. Well, what it doesn't do is to limit the
judicial inquiry, but it adds another level of inquiry that
brings to bear the resources of the U.S. State Department--its
expertise, its access to intelligence information, the entire
Executive apparatus for understanding the motivations of a
foreign government, which presumably can't be well-analyzed by
a judge or a magistrate after hearing witnesses at an
extradition hearing. So, it doesn't diminish, I believe, the
judicial goal in an inappropriate way, but does bring in the
resources of the executive branch to evaluate again whether
this is a proper extradition request or prosecution-based
extradition request.
The Chairman. Mr. Meehan?
Mr. Meehan. Under Article 4, item 3 it clearly states
``notwithstanding the terms of paragraph 2 of this article,
extradition shall not be granted if the competent authority of
the requested state determines that the request was politically
motivated.'' In the United States, the executive branch is the
competent authority for purposes of this article, that is, in
the new proposed reading, it clearly removes the determination
as to whether an offense is politically motivated from the
courts to the executive branch. That scares me, I don't know
about anybody else.
Dr. Linnon. That's my position also, Senator.
The Chairman. Ms. Morris?
Professor Morris. There's a difference between a crime's
political character--whether something is a political offense
and whether it is a perfectly common crime, something that
someone would be extradited for in any other circumstance,
except that the requesting state is motivated by political
persecution motives in its request. So that when we look at
Article 4, first we see that the judge may not extradite if the
offense is one of the ones listed as a political offense, or
rather, pardon me--if the judge determined, pardon me--that the
crime is a political offense. Article 4 goes on to say that if
it involves this kind of violence, it's not a political offense
but the judge determines, other than the excluded violent
crimes here, whether the crime is the basis for the extradition
request is a political offense. The judge did that before, the
judge does that in the new treaty. The judge cannot extradite
if he determines the offense in question is a political one.
That's Article 4(1) and (2).
And then as you refer us to Article 3, Article 3 adds yet
another layer of review. It says that after the judge has
finished with that inquiry and has said ``No, the crime charged
is not a political offense.'' If he says it's a political
offense, the inquiry is over. If he says it's not a political
offense, if he says, ``This person can be extradited'' in terms
of those aspects of the question, then the Secretary of State
takes another look at it and determines another separate
questions which is, ``Well, even if it's not a political
offense, even if this involved killing someone, nevertheless,
is the requesting state asking for this person to be extradited
because they want to persecute the person?'' They have some
other agenda going for asking for this extradition.
The Chairman. Let me just say, the purpose of the hearing
is to get these views in front of us. The Senate is finally
going to have to make a decision. While we're attempting to get
informed views, and we'll have some more, and maybe perhaps
Senators will want to discuss this particular issue at greater
length, and I think you illuminated it--I don't want to cut off
the debate on this particular issue, but I would just say that
we're not going to try to resolve this between Senator Dodd and
myself today. We will make this hearing record available to all
of our colleagues, as well as to staff and to others, to
examine carefully, but obviously the issue has been raised and
views have been expressed about it. Yes, Senator Dodd?
Senator Dodd. Yes, what I hear you saying, Ms. Morris, is
actually what this provision is is a protection against those
people who might otherwise be extraditable because a court has
ruled them not to qualify under the political exception, and
that by providing a provision that would then turn it over to
the Secretary of State that actually provides some protection.
If the reverse were true that the court has ruled that the
political exception applies--is there, can they then, the
government in this case, appeal to the Secretary of State to
reverse the decision by the court, to conclude in fact that it
is not politically motivated? And thus make the person
extraditable?
Professor Morris. That would not be possible, the terms of
the treaty give that power to the judiciary. If the judiciary
at the hearing, if the judge or magistrate determines that it
is a political offense, that is the end of the matter.
Senator Dodd. So, it's really only designed to provide a
protection from the person being extradited when the courts
have ruled that they are extraditable, in your opinion?
Professor Morris. Precisely. One way to look at it is to
say that as a matter of law, they are extraditable. Now we're
going to look at it from a political point of view, is there
something going on that is wrong here? And that is best done by
the Secretary of State, and not by a magistrate in an
extradition hearing.
Dr. Linnon. But if the Secretary of State has the right to
overturn an extraditable offense, wouldn't he also have the
same right to overturn a non-extraditable offense?
Senator Dodd. That was my question, and she says no.
The Chairman. Apparently the Secretary of State, at least
from Senator Dodd's questioning, is another court of appeal. In
other words, you're protected by the court and if you win
there, that is it. Now, if you lose in the court, the Secretary
of State can still say, ``No, we're not going to extradite you,
Mr. Meehan, because we suspect that the reason for this request
for you to go somewhere is political. And that's my
understanding, is that is an extra protection for you, rather
than one in which you overturn the court with the Secretary.
But I appreciate Senator Dodd raising the question, we will all
circle around that again, because it's a very important issue
which is raised quite correctly.
Dr. Linnon. Senator? The thing that bothers me about this,
first of all, Professor Morris talked about the intent--is it
the intent of the requesting state--intent is an extremely
difficult thing to prove, legally, as any attorney knows. And
secondly, as I mentioned before, Sections 3 and 4, the last two
sentences transfer responsibility for determining whether the
extradition request is politically motivated to the Executive.
Well, that takes the judge out of it. That takes the judge out
of it, and that's frightening.
The Chairman. What we're hearing, Dr. Linnon, is the judge
is very much in it. If the judge has made a determination that
the person can't be extradited, now that's the end of the
affair. Now let's say the judge has ruled that a person can be
extradited, then the question is, can the Secretary of State
then overrule the judge to prevent the person from being
extradited? And that is the issue.
Dr. Linnon. Senator, remember the case of Joe Dougherty?
The Chairman. I don't remember the case.
Senator Dodd. I remember the case.
Dr. Linnon. The judge ruled he was not extraditable. He was
sent back to Northern Ireland. He wasn't extradited back there,
he was sent back there as an illegal immigrant. So, you see,
there's a way around it. He had such a marvelous case, every
aspect of it was justifiable, but he went back anyway. That's
the sort of thing that frightens me.
Senator Dodd. Let me just, if I can, I've raised the issue
one way, but let me raise it another way, because I think it's
important. Under the existing treaty, of course, the
Supplemental Treaty of 1985, we don't go to the Secretary of
State, appeal matters, even to the fact situation I've
described, when determined by a court of law, appealed
judicially. There is the issue--and I don't deny this at all--
but once you get into the, move into the ``political realm'' of
the decision-making process here, even under a fact situation
that the courts have ruled that someone is extraditable, that
when you go up to the political world, the Secretary of State,
in deciding whether or not a matter between our country and
other countries is going to be determined has to consider a lot
of factors. There are a lot of things going on--who's an ally
in our present conflict? Whose not? What are the considerations
on trade? There are all sorts of things, like you're getting
advice from a lot of people telling you what the implications
are going to be--politically--of your decision. Whereas, in
court of law, we like to think of a judge making a decision
based upon strictly what the law is, regardless of what the
other implications may be. While it may be offensive to the
country who is seeking extradition, while it may hurt your
trade politics and may cause you to lose a vote in the United
Nations because they're upset about it, a judge will make a
decision based upon what they think the law is. There is a
danger, and I'll say this to the Chairman, once you've asked
someone whose portfolio is much larger than just deciding what
the law is, then you run into the further complications in
making that decision, and these are matters of law as to
whether or not these person's rights, their rights and
liberties are being violated. And therefore, I think that more
thought needs to be given to this question.
I wonder if you want to comment on this, I don't want to
delay this, we have a lot of questions, but there is the
problem--do you understand? That when you're asking the
Secretary of State, and I'm not talking about Condoleezza Rice,
but any Secretary of State, and the question of Great Britain--
Great Britain is a great ally, in many cases they were one of
the few countries that supported the United States in Iraq.
There are all sorts of votes that come up in the United
Nations, and we're not unmindful of those considerations when
the Secretary of State is making decisions, and so even though
the courts have said someone is extraditable, and even though
the Secretary of State may think, ``You know, I think that was
a bad decision, but I've got all of these other matters in
front of me, I've got the President telling me how important
this relationship is, I've got everyone else telling me how
important it is, maybe my decision on this matter is going to
be colored by other factors other than just what these
individual's rights are, as I understand them to be.'' That's
the danger, I think, about moving from the court of law to an
otherwise political position to make a determination, I think
that is the concerning thing expressed, if I may say so, by
others.
Dr. Linnon. That is correct.
The Chairman. Professor Morris?
Professor Morris. My point is only that each of these
provisions within Article 4 is a negative--is a showstopper.
First, the judiciary has a crack at it in a context in which
the judicial function is best exercised. If the judiciary says,
``It ends here.'' It ends there. It's not that the Secretary of
State can reverse that. Then we have another negative
provision, that extradition shall not be granted if, in each
case ``extradition shall not be granted'' so if it goes from
the judiciary to the Secretary of State, as we've said, the
Secretary of State can't then, for political reasons,
nevertheless extradite, so the only slippage, the only
conceivable loss, I think, in judicial power that you're
talking about is, if the judiciary said, ``Well, it's not a
political offense, but now it's our job to decide whether it's
politically motivated.'' Then I suppose you're suggesting that
the judiciary might have a lesser set of factors of political
considerations that would be applied than the Secretary of
State, but that has to be balanced against the fact that the
judiciary has a less perspicacious view about politics so that,
the Judiciary is not in much of a position to make that
evaluation, the Secretary of State is in a better position, it
is conceivable, that the Secretary of State would
inappropriately ask a different question. Ask the question of
what was good with regard to some other political matter, but
under the treaty, the question is supposed to be, this
particular extradition request isn't motivated for reasons of
political persecution.
Senator Dodd. Thank you.
The Chairman. Very well. Yes?
Mr. Magee. If I could just interject briefly, Article 8 of
the treaty provides for the extradition procedures and required
documents and as I read the treaty from cover to cover, maybe
Professor Morris will be able to help me understand where the
judiciary is interjected into this procedure at all. It's
purely a State Department function when it makes reference to
extradition requests being supported, they're talking in terms
of the requesting State would need a request, or an arrest
issued by a judge or other competent authority. Well, that
order of arrest coming our way would be from somebody in the
United Kingdom that would come through diplomatic channels and
be acted upon by the State Department. I don't see where we
have the judicial safeguards that are guaranteed in the
Constitution anywhere in this Article. And that's the main
concern that we have as American citizens, is that when you
take in whether you're looking at the retroactivity, the
removal of the statute of limitations, Joe Dougherty was
mentioned briefly, there's a big hurrah ten, fifteen or twenty
years ago, actually, back during the time of the 1985, 1987,
1990 hearings. As I read this treaty, if I aided and abetted
and assisted Joe Dougherty in avoiding British authorities,
with the passage of this treaty, I could now be extradited to
the United Kingdom for something that occurred more than 20
years ago. Again, without any judicial determination.
The Chairman. Professor Morris?
Professor Morris. When an extradition request is received
by the United States through diplomatic channels, it goes
through the following process: the State Department checks it
for compliance with the treaty, if it's in compliance with the
treaty, it's then sent to the Justice Department to check for
the legality of whether everything is in order with regard to
the lawfulness of the request. If the Justice Department
determines the request is lawful, it's passed through a judge
or magistrate. A judge or magistrate in a judicial forum, to
then hold an extradition hearing in a judicial manner, in which
it will be determined whether the evidence is sufficient and
whether the crime that the person is accused of is a political
offense. That takes place in a judicial context, and only after
that determination is made in the judiciary, does it then go
back to a final check with the Secretary of State. That is the
operation of this treaty, together with the provisions of the
United States extradition law, which unfortunately do not
appear in this treaty.
The Chairman. Very well. Well, we'll leave it at that, that
there is a body of law, and there is this treaty, but now we'll
all circle around and make certain that the safeguards that are
being asserted here, in fact appear to work that way.
Let me ask another question--Professor Boyle has asserted
in written testimony that under the proposed treaty the
Department of State, not a U.S. Federal judge, would adjudicate
First Amendment issues. We're back to this problem again, in a
way. However, the administration has testified the U.S. Federal
courts will determine both whether the dual criminality
requirement is satisfied and whether the political offense
exception is applicable. The administration stated in its
testimony, ``U.S. extradition proceedings are undertaken
pursuant to Title 18 of the United States Code, Section 3184,
which provides that a U.S. judge or magistrate judge determines
whether there is sufficient evidence to make a finding of
extraditability. . . . The Court also determines whether the
offense for which extradition is sought is an extraditable
offense under the treaty. In the case of the new treaty, the
relevant question would be whether dual criminality exists.
That is, whether the conduct at issue is punishable under the
laws in both states by deprivation of liberty by a period of
one year or more, or by a more severe penalty. In this context,
the court would also consider any claims raised by the fugitive
that the offense is a political offense.'' End of quote from
the administration. Now, this explores much the same territory
we've just been talking about. On the other hand, I would ask
once again to Mr. Meehan and Dr. Linnon--do you have comment,
or your attorney, on this point?
Mr. Magee. If I can, I think again this is just what we've
been addressing, as this treaty is read in its four corners,
there is no safeguard, there are no safeguards which may or may
not be provided under Section 18, I believe it's Section 18
that's reciting Title 18, and I think the concern that we have
is that, does this treaty, in fact, override the provisions
once it is passed into law, so that we will have a situation
where there's now a conflict between the treaty and the
statute?
Dr. Linnon. Senator, my only concern is that the provisions
that Professor Morris mentions are not in the treaty when I
look at this. And I'm not an attorney, but when I look at this,
and they are absent, and it says, ``The decision will remain
with the executive branch,'' that, to me, is frightening.
The Chairman. Well, without re-writing the treaty, it seems
what we all are saying is that essentially--and the
administration has testified that we have a body of law now--
that extradition proceedings, Title 18 and so forth that
governs extraditions now the treaty is on top of this. You
mentioned, however, you look at the treaty by itself, you don't
find Title 18 and therefore how do you know that Title 18 and
all of this pertains to this. Now, maybe they are all good
answers to this, and it's an interesting question, as a layman,
and I'm not an attorney either, and we're all thinking about
this together today, but I understand your concern, and there
may be a good answer to that. But that seems to be a question--
how do you take this block of law as to how you are to be
extradited into consideration of the treaty?
Mr. Meehan. I think, Mr. Chairman, we've all at one time or
another heard the statement ``Show it to me in writing.'' Would
that not apply here? If we don't see it in writing, it is not
there.
The Chairman. Fair enough, we're just sort of wandering
around. Now let me ask another question. Professor Boyle has
provided testimony that the proposed treaty would ``effectively
eliminate the political offense exception for all practical
purposes'' and I quote, ``the political offense assumption is
eliminated for any offense allegedly involving violence or
weapons, including any solicitation, conspiracy or attempt to
commit such crimes.'' Mr. Meehan, Dr. Linnon, Professor Morris,
do you have any comments about that idea of Professor Boyle's?
Mr. Meehan. I have nothing to say about that, sir.
Dr. Linnon. The only thing I would like to say with regard
to that, Senator, is that is there a possibility that written
questions could be put to Professor Boyle, since these are his
comments and he could answer them for the committee?
The Chairman. We could do that, and we should do that,
we're attempting to get as complete a record as we can, and
that is why we're exhausting all of you. Not to be tedious, but
this is an attempt, really, to make a comprehensive search.
Dr. Linnon. And we appreciate it, don't get me wrong.
The Chairman. Good point. So we will ask Professor Boyle to
respond to his own question, but he will say, ``Well, I have in
my testimony.'' that is the reason that I raise his quote.
Nevertheless, good point. Now finally, Professor Boyle has
offered testimony that the proposed treaty would, ``eliminate
the need for any showing of probable cause.'' However, the
administration testifies as follows, ``The United States
constitution, together with Federal case law, provides the
standard used by the court to evaluate the sufficiency of
foreign evidence provided in support of an extradition
request--probable cause to believe the person who is before the
court is the person charged or convicted in the foreign country
and in those cases where the person has not been convicted,
probable cause to believe that person committed the offenses
for which the extradition is sought,'' end of quote by the
administration.
Once again, I suppose we have a question of what the treaty
has to say and what the Constitution has to say and how the two
are melded and how they're referred to that they may be too
oversimplifying the case, but it appears once again that we
have a disconnect in terms of our thinking today, thinking
about the law, Title 18 to begin with, of the Constitution
here. I don't mean to oversimplify it, but do any of you have
further comment on Professor Boyle's statements in this
respect, or the administration's response?
Senator Dodd. I was going to suggest, Mr. Chairman, in this
regard what we may want to do at the appropriate time, I think
all of us probably agree this treaty should not, in any way,
supersede first of all, the Constitution, and secondly,
statutory law, at least that is my view. I can't imagine us
adopting a treaty that would undermine Title 18. It might be
important to adopt an understanding to the resolution of
ratification to clarify that the nothing in this treaty would,
in any way, subvert or whatever the proper language of Title
18, the language to that effect, nor the Constitution, for that
matter. That may help any future adjudication here to make it
quite clear that none of us on this committee nor the Senate
would be ratifying a treaty that in any way undermined Title 18
or the Constitution of the United States. That's just an idea
we might want to consider.
The Chairman. Do you have an idea about that, Professor
Morris?
Professor Morris. I have an idea about that idea.
Congressional legislation about how to implement a treaty is
dispositive as to the way that treaty will be implemented. And
so if there is legislation in Title 18 about what we do when we
are acting pursuant to an extradition treaty, then that tells
us what we do when we're going to implement an extradition
treaty. It is not in conflict with the treaty, but it does
answer a lot of questions along the way about exactly how we're
going to do this, and under Title 18, we're going to do it in
that very way. So, the treaty doesn't provide the details for
its own implementation, but the Congressional legislation is
binding on that. Certainly one could add a proviso that this
treaty will not be interpreted or applied to be violative of
the United States Constitution or Title 18, maybe you want to
say Title 18 as it exists, or may be amended in the future.
The Chairman. All right, well that's roughly what Senator
Dodd, I think, is saying.
Senator Dodd. Are you saying it's self-executing?
Professor Morris. I'm saying it's not self-executing,
that's exactly what I'm saying, I'm saying implementing the
legislation in Title 18 is binding.
Senator Dodd. That is the point, you want to make it clear,
then. That is my point, that it isn't self-executing, therefore
you'd be avoiding Title 18.
Professor Morris. You could say that this treaty is not
self-executing, as Congress has done so many times, so there
would be no harm in that.
The Chairman. Very well. Well, than Senator Dodd and I will
be so advised, and sort of think our way through how we may
clear what I think is the evident unanimity of our panel here
today, however we approach this, that the Constitution applies,
Title 18 applies and then finally we get to this treaty, but we
still have those basic elements of Constitutional law and
statutory law.
Thanks, Senator Dodd for making that very wise suggestion,
thank you, Senator.
Senator Dodd. As a fellow Irishman, I appreciate that.
[Laughter.]
Senator Dodd. We don't often compliment one another. George
Mitchell once said we're the only race that would go 50 miles
out of our way to receive an insult.
[Laughter.]
The Chairman. I will second the commendation to my
colleague.
Well, we thank this panel very much, you've been most
patient.
Senator Dodd. Just one basic question, and I thank the
Chairman, I'm going to address some of the questions that have
been raised here to our administration witnesses, but as I hear
the panel here--aside from the obvious questions, the legal
question that has been raised here is--and correct me if I'm
wrong--but the fear, I think, aside from Professor Morris, is
that this treaty is going to be used to go back and deal with
past offenses. Sort of disregarding the Good Friday Accords and
other things that have been adopted by the United Kingdom since
1985. That the fear is this is going to be a reaching back, Mr.
Chairman. Am I articulating that fear? Is that the basic
concern?
Mr. Meehan. Yes, it is.
Senator Dodd. You're not objecting, necessarily, although
obviously from other places to future matters in light of
what's been adopted by the United Kingdom as a result of
certain actions that have been taken over the last 20 years,
it's really more of a concern about reaching back.
Mr. Meehan. Correct.
Senator Dodd. We'll be looking at, there are a series of
steps that have been taken, some which I mentioned in my
opening statement, which have released programs and the like,
which we applaud and we commend, but they raise certain other
issues as well about reaching back. So that is a worthwhile
document to have as a part of this record, I think.
Mr. Meehan. I would have to respond to that, Senator, by
saying that if this is true, then why is there a hue and cry by
the British public? Ordinary rank and file voters in Britain
are screaming for the scrapping of this treaty. They feel that
their citizenry is being adversely affected by it as well?
Senator Dodd. I raise the issue, the only other point I
wanted to raise with you, Professor Morris, is this--and that
is clearly the 1985--and I just ask you whether or not you
agree or disagree, I don't want to get into a long answer here,
but clearly there were--we went through elaborate processes, as
we mentioned, to get through that 1985 agreement, the Chairman
was tremendously forthcoming, and many members who were
involved here in the crafting of that agreement. Would you not
agree that this agreement, what we're about to adopt here or
may adopt here, certainly is going to retreat from the rights
that were extended in the 1985 agreement? There are fewer
rights extended under this proposal then exist in the 1985
agreement, is that not true?
Professor Morris. That is not true, I don't agree with
that.
Senator Dodd. You don't agree with that?
Professor Morris. No. We could go through point by point
where that is supposed to have happened, and in each case, I
would disagree.
Senator Dodd. I was just curious.
Professor Morris. May I address the ``hue and cry'' point
for one moment?
The Chairman. Fine.
Professor Morris. The hue and cry, as I understand it,
arising in the U.K. about this treaty, is that we have been in
the U.S. receiving the benefit of the treaty, even though the
U.S. hasn't ratified it yet, and as time has gone on, that has
been viewed as unfair and unequal and disadvantageous to the
U.K. that they're giving us the benefit of a treaty that we
haven't ratified and therefore, are not providing the benefit
of, that I understand to be the basis of the debate in the U.K.
Not that, if ratified, this treaty works some injustice on U.K.
citizens or persons present in the U.K. Many of the newspaper
articles that I've read recently would fly in the face of that
opinion, I would say.
Senator Dodd. By the way, would you address the question
I've raised with Professor Morris, it is the opinion of you,
Mr. Meehan, and Professor Linnon, that in fact the protections
that were provided in the 1985 have been eroded with this
proposal, that is your conclusion?
Dr. Linnon. That's correct, yes sir. I would just like to
say that even though Professor Morris states that it's the
feeling it's unfair and that's why they're opposed to it.
There's currently an extradition request of a United States
citizen by the United Kingdom, so I mean, they're not totally
inactive about it.
The Chairman. Thank you. Well, we thank you all three, very
much.
Dr. Linnon. Thank you, Senator.
Mr. Meehan. Thank you, Mr. Chairman, thank you, Senator
Dodd.
The Chairman. We would like to call our second panel of
witnesses, the Honorable Paul McNulty, Deputy Attorney General,
United States Department of Justice, and Mr. Samuel M. Witten,
Deputy Legal Adviser of the Department of State.
Gentlemen, we welcome you to the Senate Foreign Relations
Committee hearing today, and I want to ask that you testify in
the order that I introduced you, and that would be, first of
all, Deputy Attorney General, Mr. McNulty, and then Mr. Witten.
Will you please proceed, Mr. McNulty?
STATEMENT OF PAUL J. McNULTY, DEPUTY ATTORNEY GENERAL, U.S.
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. McNulty. Good morning, Mr. Chairman, Senator Dodd. I'm
pleased to appear before you today to present the views of the
administration and the Department of Justice regarding the 2003
U.S.-U.K. Extradition Treaty.
Mr. Chairman, I'm here to reiterate the importance of this
treaty to U.S. national security and law enforcement. And I
also would like to briefly rebut some of the statements which I
believe are misleading, and inaccurate, as criticisms of this
important treaty.
Mr. Chairman, Senator Dodd, approval of this treaty is an
urgent priority for the administration. As the Deputy Attorney
General, I know firsthand that we face increasing need for
cooperation and assistance from the international community in
the investigation of terrorism, violent crime, trafficking in
persons, drugs and firearms, large-scale financial crimes and
other offenses. This treaty would further the goal by
modernizing our extradition relationship with the United
Kingdom.
On the other hand, failing to approve this treaty will have
serious negative consequences for the American people. The
United Kingdom House of Lords last week overwhelmingly voted to
rescind its designation of the U.S. under the U.K.'s 2003
Extradition Act for relief from the onerous prima facie
evidence standard for extradition. The House of Commons has
also begun to take steps in that regard. This action is in
response to increasing pressure in the U.K.--in some political
circles, the business community and the press--to correct a
perceived ``imbalance'' in the current U.S.-U.K. extradition
relationship resulting from the fact that the U.K. has approved
the treaty, but the U.S. has not. If this rescission ultimately
were to take effect, it would mean, among other things, that
the United States would be subject to the pre-2003 extradition
requirements of submitting prima facie evidence of guilt in our
extradition applications. As a result, it would be much harder
to extradite terrorists, violent criminals, drug traffickers,
white collar criminals and others. We would be forced to meet a
very high standard.
Now, this is something that I personally experienced as a
United States Attorney in Eastern Virginia from 2001 to 2006.
We had cases in our jurisdiction involving individuals in the
U.K., in one case in particular, the case began, the largest
hacking case in United States' history began prior to 2003. And
to meet the standard at that time required a stack of documents
at least this tall or higher [indicating]. We had to basically
prepare the entire case as though it was going to court.
After 2003, that extradition process was reduced
substantially in terms of burden, where we now meet the
probably cause standard, rather than the prima facie standard.
And what was lost in perhaps the previous discussion was this:
the benefits of this treaty are enormous for the United States
because we have to meet a burden over there. And while the U.K.
has enacted the treaty there, and we can now enjoy those
benefits, and are enjoying it through the extradition of
terrorists back to the United States, we stand a real
possibility of losing that benefit if we do not carry through
on our end of ratifying this treaty.
Even if the United Kingdom does not ultimately rescind its
favorable designation of the U.S. under its Extradition Act,
continuing delay in the United States' approval of this treaty
would still have serious consequences in our law enforcement
cooperation, particularly in terrorism cases. For example, the
United States is seeking the extradition from the U.K. of Abu
Hamza on charges of kidnapping U.S. and other Western tourists
in Yemen, sending recruits to Afghanistan for terrorist
training, and conspiring to establish a jihad training came in
the United States. Abu Hamza is currently serving a sentence in
the U.K. for incitement of racial hatred. If the new treaty
were in effect, the U.K. would be able to send Hamza to the
U.S. for trial under the treaty provision permitting
``temporary surrender.''
Absent temporary surrender, we will have to wait to try him
until he completes his sentence in the United Kingdom, and
there are real risks in substantially delaying a trial of this
nature.
Mr. Chairman, over the past two decades, this committee has
approved a series of new extradition treaties that have
significantly improved our ability to deny terrorists and
criminals safe haven from facing justice in U.S. courts.
Surely, our law enforcement relationship with the U.K., one of
the most critical and most successful partners in preventing
and prosecuting terrorism and other crimes, should benefit from
the same extradition regime, the same modern regime that we
share with so many other countries.
As I noted earlier, one of the primary benefits of the new
treaty is that it removes the prima facie evidence requirement
imposed by the U.K. in extradition cases and replaces it with a
less stringent standard under the U.K. extradition laws. In
addition, the treaty is a dual criminality treaty, which is a
significant improvement over the pre-2003 treaty. As a result,
the treaty expands the scope of extraditable offenses well
beyond those specifically recognized in the existing treaty's
list, or in domestic U.K. extradition law.
Accordingly, the treaty automatically applies to new
felonies enacted into law. The new treaty will allow us a
faster, more direct channel for requests for provisional
arrests. Provisional arrests are used in urgent circumstances
to prevent the flight of serious felons, or to promptly detain
dangerous and violent suspects. These requests can be made
directly between the Department of Justice and an authority
designated by the United Kingdom, thus obviating the need to go
through formal diplomatic channels in order to secure emergency
assistance.
Mr. Chairman, those provisions and others will
significantly advance the law enforcement interests of the
United States. I would, however, like to rebut briefly the
primary objections that have been put before this committee by
various groups and individuals, including the witnesses who
appeared before this committee this morning.
I must refute in unequivocal terms the suggestion of the
opponents that the United States has entered into this treaty
in order to collude with the United Kingdom in a campaign of
retaliation against Irish-American citizens. The heated
rhetoric, the idea that this would strip away Constitutional
rights, is simply not true. It is not at all accurate. The
purpose of this treaty is to enhance law enforcement
cooperation between the U.S. and the U.K. for the benefit of
the American and the British people. There is no erosion of
rights.
Mr. Chairman, as this committee well knows, we face an
increasing need for cooperation and assistance from the
international community in the investigation of terrorism,
violent crime and other offenses. This treaty would further
that important national security and law enforcement goal by
modernizing our extradition relationship with the United
Kingdom, while protecting the Constitutional rights of all
Americans. In the end, the harm that the opponents say will
occur if the committee approves this treaty are illusory and
purely hypothetical. In fact, every one of the provisions in
this treaty has an analog in other modern extradition treaties
that this committee has approved and which have been
administered consistent with the United States Constitution.
There's a well-established framework already in existence
that allows for the application of these treaties, with the
working of the United States Code for the implementation of
those treaties. As I have emphasized today, the new treaty with
the United Kingdom is entirely consistent with other modern
extradition treaties. Our law enforcement relationship with the
United Kingdom is one of our most important, and it should
benefit from the same sort of modern extradition treaty that we
have with so many other of our significant allies is in
combating terrorism and crime. Yet, we're not at the stage
where further delay in approving this treaty is threatening an
unnecessary strain if not a step backwards in our critical law
enforcement dealings with the United Kingdom.
Mr. Chairman, Senator Dodd, just about a month ago I was in
London meeting with my law enforcement counterparts there. And
this concern was expressed repeatedly to me, and as you know,
the Deputy Secretary, Home Secretary was in the country last
week, met with the Attorney General and myself to discuss this
concern. And I saw firsthand the concern that's in existence
now that there will be a movement backwards if we are not able
to ratify this treaty.
The Department of Justice believes this treaty will improve
our extradition relationship with the United Kingdom and
protect our citizens without undermining in any way the
commitment of the United States to the protection of
Constitutional rights for all Americans. The Department,
therefore, respectfully urges this committee to approve the
treaty as soon as possible.
I would be happy to answer any questions the committee has
for me. Thank you very much.
[The prepared statement of Mr. McNulty follows:]
Prepared Statement of Paul McNulty
I. INTRODUCTION
Mr. Chairman and members of the committee, I am pleased to appear
before you today to present the views of the administration and the
Department of Justice regarding the 2003 United States-United Kingdom
Extradition Treaty. This morning, I would like to reiterate the
importance of this treaty to U.S. national security and law enforcement
interests. I would also like to rebut some of the false and inaccurate
criticisms that have been leveled against this important treaty.
Approval of this treaty is an urgent priority for President Bush
and the Attorney General. I do not need to tell this committee that we
face an increasing need for cooperation and assistance from the
international community in the investigation of terrorism, violent
crime, trafficking in persons, drugs and firearms, large-scale
financial crimes and other offenses. This treaty would further that
goal by modernizing our extradition relationship with the U.K.
On the other hand, failing to approve this treaty will have serious
negative consequences. For example, the U.K. House of Lords last week
overwhelmingly voted to rescind its designation of the U.S. under the
U.K.'s 2003 Extradition Act for relief from the onerous prima facie
evidence standard for extradition, The House of Commons has also begun
to take steps in that regard. This action is in response to increasing
pressure in the U.K.--in some political circles, the business community
and the press--to correct a perceived ``imbalance'' in the current
U.S.-U.K. extradition relationship resulting from the fact that the
U.K. has approved the treaty but the U.S. has not. If this rescission
ultimately were to take effect, it would mean, among other things, that
the U.S. would be subject to the pre-2003 extradition requirements of
submitting prima facie evidence of guilt in our extradition
applications. As a result, it would be much harder to extradite
terrorists, violent criminals, drug traffickers, white collar criminals
and others.
Even if the U.K. Government does not ultimately rescind its
favorable designation of the U.S. under its Extradition Act, continuing
delay in the United States' approval of this treaty would still have
serious consequences in our law enforcement cooperation, particularly
in terrorism cases. For example, the United States is seeking the
extradition from the U.K. of Abu Hamza on charges of kidnapping U.S.
and other western tourists in Yemen, sending recruits to Afghanistan
for terrorist training, and conspiring to establish a jihad training
camp in the United States. Abu Hamza is currently serving a sentence in
the U.K. for incitement of racial hatred. If the new treaty were in
effect, the U.K. would be able to provide Hamza to the U.S. for trial
under the treaty provision permitting ``temporary surrender.''
In the absence of the new treaty, however, the U.K. Home Office has
indicated that the U.K. will refuse to extradite Abu Hamza based on
their view that, although the U.K. could ``temporarily surrender'' Abu
Hamza to the U.S. prior to the expiration of his U.K. sentence (because
they have ratified the treaty), the U.S. could not return him to the
U.K. to finish serving his U.K. sentence after his U.S. trial (because
we have not yet ratified the treaty). The result is that the U.S. will
not be able to try Hamza until he is extradited following his U.K.
sentence. This delay, which is likely to be for several years, may have
serious consequences: it will render it more difficult for the U.S. to
try an individual who has been charged as a dangerous terrorist.
Mr. Chairman, over the past two decades, this committee has
approved a series of new extradition treaties that have significantly
improved our ability to deny terrorists and other criminals safe haven
from facing justice in U.S. courts. Surely, our law enforcement
relationship with the U.K.--one of our most critical and successful
partners in preventing and prosecuting terrorism and other crimes--
should benefit from the same modern extradition regime. That is why
approval of this treaty is such an urgent national security and law
enforcement priority for the administration. On behalf of the
administration and the Department of Justice, I respectfully urge this
committee to approve this treaty as soon as possible.
II. LAW ENFORCEMENT BENEFITS OF THE TREATY
Before I address the inaccurate assertions about this treaty, let
me briefly reiterate how the treaty improves law enforcement
cooperation with the U.K.
One of the primary benefits of the new treaty is that it removes
the ``prima facie'' evidence requirement imposed by the U.K. in
extradition cases and replaces it with a less stringent standard under
new U.K. domestic extradition laws. After the treaty was signed, the
Government of the United Kingdom undertook as of January 2004 to
designate the United States for favored treatment under its domestic
legislation--in particular, to permit the United States to meet the
lower standard of proof--even though the United States ratification
process was not yet complete. This designation has made the preparation
of extradition requests far easier and, in some cases, allowed us to
proceed with cases that we might earlier have declined to pursue.
Unfortunately, as time has passed since the administration first
presented this treaty to the committee, the Government of the United
Kingdom has been the recipient of increasingly sharp criticism in the
press and in Parliament over having given the United States the
beneficial designation without a showing of reciprocal support for an
improved extradition relationship through United States approval of the
new treaty.
Additionally, a number of significant defendants in pending
extradition cases from the United States are starting to raise the
allegation of a ``flawed'' designation process in the lower courts and
on appeal. Most notably, three U.K. bankers who are defendants in
Enron-related proceedings opposed extradition on those grounds, among
others. The so-called ``NatWest 3'' were extradited to the U.S. last
week, but their case has received significant attention in the British
press and has stirred up significant support for suspending the U.K.'s
current extradition relationship with the U.S.
In addition to eliminating the prima facie requirement, the treaty
is a ``dual criminality'' treaty, which is a significant improvement
over the pre-2003 treaty. As a result, the treaty expands the scope of
extraditable offenses well beyond those specifically recognized in the
existing treaty's list or in domestic U.K. extradition law.
Additionally, the treaty automatically applies to new felonies enacted
into law.
The new treaty will also allow a faster, more direct channel for
requests for provisional arrest. Provisional arrests are used in urgent
circumstances to prevent the flight of serious felons or to detain
promptly dangerous and violent suspects. These requests can be made
directly between the Department of Justice and an authority to be
designated by the United Kingdom, thus obviating the need to go through
formal diplomatic channels in order to secure emergency assistance.
As noted above, another provision in the new treaty of particular
significance is that authorizing ``temporary surrender.'' Under the
current treaty, the extradition of an individual who is being
prosecuted or serving a sentence in one country must be deferred until
the completion of the trial and any sentence imposed. Such a deferral
can have disastrous consequences for a later prosecution due to lapse
of time, the absence or death of witnesses, and the failure of memory.
The new provision will allow the individual being tried or punished in
one country to be sent temporarily to the other for purposes of
prosecution there and then returned to the first country for resumption
of the original trial or sentence.
III. CRITICISMS OF THE TREATY ARE UNFOUNDED
I would, however, like to rebut briefly the primary objections that
have been put before this committee by various groups and individuals,
including objections Professor Boyle expressed in his March 2004 letter
to the committee and which I understand are reiterated in his testimony
today.
At the outset, I must refute in unequivocal terms the suggestion of
Professor Boyle and others that the United States has entered into this
treaty in order to collude with the United Kingdom in a campaign of
retaliation against Irish American citizens. This is false. This is a
treaty, like all other extradition treaties to which the United States
is a party, concerned with crimes recognized as such under the laws of
the United States, The United States has entered into this treaty
because it benefits the law enforcement interests of the United States,
and those interests extend to protecting all our citizens who may fall
victim to crime. Every one of its provisions has an analogue in other
modern extradition treaties that this committee has approved, and which
have been administered in conformity with United States laws and the
United States Constitution. There is no basis for Professor Boyle's
claims to the contrary.
A. Political Speech, Political Offense and Political Motivation
One of Professor Boyle's central criticisms of the treaty has been
his view, as articulated in his March 2004 letter, that it is
``directed primarily against Irish American citizens engaged in the
lawful exercise of their constitutional rights under the First
Amendment'' and that it would make them ``extraditable to the British
Crown . . . [for] exercising their rights under the First Amendment . .
.'' The treaty does no such thing. Speech protected by the First
Amendment is not, and cannot be, recognized as a criminal offense under
U.S. law. Conduct that does not constitute an offense under U.S. law
fails the core dual criminality test of the new treaty, the current
treaty, and all other extradition treaties to which the United States
is a party. Therefore, extradition simply is not permitted with respect
to speech protected under the First Amendment.
Critics also claim that the new treaty with the U.K. represents a
dramatic departure in the treatment of political offenses, for which
extradition is barred, and of assertions that a particular request for
extradition is motivated by a desire to punish an individual for his or
her political beliefs. Contrary to these claims, the new treaty is
completely in accord with other modern extradition treaties, and U.S.
law.
First, the new treaty, like the 1985 Supplementary Treaty now in
force, makes it clear that persons engaged in serious crimes of
violence, including crimes involving explosives and firearms, may not
avoid extradition by invoking the political offense doctrine. As the
committee well knows, this provision, which has now become a standard,
was a reaction to terrorism and the potential for abuse of the
political offense doctrine by terrorists as a means to avoid
extradition. Put simply, this treaty, like so many others, does not
countenance a terrorist asserting that he can evade justice because his
designs of murder and mayhem were motivated by his political
objectives. Other than these specific exclusions, however, it will
remain for the courts to determine whether the offense constitutes a
political offense for which extradition is barred.
Second, the treaty deals with the question of ``political
motivation''--a claim that a request for extradition is in fact
motivated by the Requesting State's desire to punish the person for his
political views--in the same manner as virtually every other
extradition treaty, and in the same manner specified by longstanding
U.S. court decisions, All U.S. courts, and every extradition treaty
that addresses the issue, adhere to the rule of ``judicial non-
inquiry,'' reserving such questions for decision by the executive
branch. The only departure, and one never repeated since, was the 1985
Supplementary Treaty with the U.K.
Although no defendant has ever succeeded under the current treaty
in defeating his extradition to the U.K. on the basis of political
motivation, the years of litigation generated as our courts grappled
with these claims demonstrated that under the U.S. system, such issues
are better reserved, as for all other treaty partners, for decision by
our Secretary of State. Thus, it is wrong to suggest that the 2003
treaty somehow reverses ``centuries'' of treaty precedent. It does
nothing of the kind--the new treaty will simply restore the legal
standard applicable in every other U.S. extradition treaty.
B. Other Objections
I would like to address, briefly, a number of other criticisms of
the treaty. First, there is no basis for claims that the provisional
arrest provisions of the treaty either violate the Fourth Amendment or
provide for indefinite detention. As the Department of Justice has made
clear in prior testimony and questions for the record, the Fourth
Amendment does apply to the issuance of a warrant for provisional
arrest. The provisional arrest language of the new treaty is entirely
consistent with that of numerous extradition treaties that have been
approved by the committee and that have been applied by U.S. courts in
conformity with constitutional requirements. Moreover, the provisional
arrest article, like that in all other treaties, sets a time frame in
which the formal request for extradition must be submitted. Should that
fail to be done, the U.S. court may then release the defendant. This is
not indefinite detention.
There is no basis for the claim that the treaty eliminates statutes
of limitation. The treaty has no impact on application of statutes of
limitations. Rather, it preserves for the courts where the case is to
be tried the determination whether the applicable statue of limitations
would bar the prosecution, rather than calling on the extradition court
to interpret a foreign statute of limitations, or to try to en graft
its domestic statute of limitations on the foreign charge. This
approach is reflected in many of our modern extradition treaties.
There is no basis for the claim that the treaty eliminates the
necessity of a showing of probable cause. Both the treaty and
longstanding U.S. law make it clear that a U.S. court must make a
determination that there is sufficient information in the extradition
request to find probable cause that a crime has been committed and that
the fugitive committed that crime before the fugitive may be ordered
surrendered to face trial in the foreign country.
There is no basis for the claim that the treaty permits prosecution
in violation of the ex post facto clause of the Constitution. This
treaty, like the 1985 Supplementary Treaty, makes it clear that the
treaty may apply to offenses committed before it enters into force.
This is a standard treaty provision, and it does not permit a
retroactive application of the underlying criminal statute for which
the fugitive has been charged or convicted.
There is no basis for the claim that the treaty permits extradition
for conduct that is not considered an offense in the United States.
Article 2 of the treaty makes it clear, as do all other treaties, that
extradition is permitted only if the conduct charged in the U.K. would
also constitute an offense under U.S. law. Because federal criminal
jurisdiction is limited, many common offenses, such as murder, sexual
assault, burglary and theft are ordinarily punishable under State law,
rather than federal criminal law. Thus, for purposes of assessing the
core requirement of dual criminality, U.S. courts have long held that
they may look to state law as well as federal law to assess this
requirement. This approach, which is simply reflective of the United
States' unique federal system, in no way undermines the fundamental
requirement of dual criminality that is enshrined in this and other
U.S. extradition treaties.
Finally, as explained in our prior submissions to the committee,
the treaty does not eliminate the rule of specialty. To the contrary,
this principle, which limits the prosecution of a person for offenses
other than those for which he or she has been extradited, is fully
preserved in Article 18 of the treaty. The only substantive variation
from the current treaty is that it provides an explicit provision for
the extraditing state to waive the rule of specialty, if in its
discretion and considering the particular circumstances of the case, it
deems it appropriate to do so, This sort of clause has been a standard
treaty provision for years. And although such an explicit provision for
waiver is not necessary for the United States, it was necessary for the
United Kingdom.
IV. CONCLUSION
Mr. Chairman, as I have emphasized today, the new treaty with the
United Kingdom is entirely consistent with other modern extradition
treaties. Our law enforcement relationship with the United Kingdom is
one of our most important, and it should benefit from the same sort of
modern extradition treaty that we have with so many other of our
significant allies in combating terrorism and crime. We are now at the
stage where further delay in approving this treaty is threatening an
unnecessary strain, if not steps backward, in our critical law
enforcement dealings with the United Kingdom.
We have appreciated the opportunity--in the prior hearing, in our
responses to the thoughtful questions for the record posed by members
of the committee, and in my testimony today--to respond to the various
objections and criticisms of the treaty. I believe that each of these
has now been addressed, and should not prevent this committee from
approving the treaty. The Department of Justice believes that this
treaty will significantly improve our extradition relationship with the
United Kingdom--and protect our citizens--without undermining in any
way the commitment of the United States to the protection of
constitutional rights for all Americans. The Department therefore
respectfully urges this committee to approve the treaty as soon as
possible.
I would be happy to answer any questions the committee may have.
The Chairman. Thank you very much for that testimony. Mr.
Witten, we would like to hear from you now.
STATEMENT OF SAMUEL M. WITTEN, DEPUTY LEGAL ADVISER, U.S.
DEPARTMENT OF STATE, WASHINGTON, D.C.
Mr. Witten. Thank you very much, Mr. Chairman.
Mr. Chairman, and Senator Dodd, I'm pleased to appear
before you today to testify once again in support of Senate's
advice and consent to ratification of the U.S.-U.K. Extradition
Treaty. I till take the opportunity today to bring to the
committee's attention developments that make entry into force
of this key law enforcement treaty a matter of even greater
urgency than when I testified in favor of Senate approval on
November 15, 2005.
As reflected in Mr. McNulty's comments, the United Kingdom
of course is one of our closest partners in the war on
terrorism. The new, modern treaty before the Senate has the key
provisions found in virtually all of our modern treaties and
reflects this close relationship. I will discuss briefly in
this testimony the key benefits that will accrue to the United
States from this treaty, but before doing so, I need to
highlight for the committee several additional challenges that
have emerged from the delay in entry into force of this treaty.
In 2003, the U.K. adopted domestic legislation simplifying
its extradition practice, and in a show of good faith in
anticipation of this new treaty coming into force, it applied
the benefits of its new domestic law to the United States. The
British Government was accused in Parliament of acting
prematurely, with critics saying that this change should wait
until the Senate ratified the Extradition Treaty. The British
Government answered that criticism by stating that it
anticipated quick ratification by the United States.
Our delay in ratification has become a major political
issue in the United Kingdom. The issue is being seen by the
British media and public as a question of good faith on the
part of the United States. Inaction on our part now not only
threatens the favorable treatment we receive in extradition
matters, but it is undermining British public opinion that we
are a reliable ally. Recent editorials and articles in the
London Times, for example, reflect the sentiment held by many
in the U.K. that justice is not being done for the United
Kingdom. A June 28, 2006 London Times article notes that the
treaty has been cited by Prime Minister Blair's critics as an
example of U.S. government indifference to the United Kingdom.
Under the changes to the U.K. domestic law brought about by
the 2003 U.K. Extradition Act, the U.S. received preferential
designation in the British system as a ``part 2 country.'' The
most significant result of this favorable designation is that,
when seeking the extradition of a fugitive, we benefit from an
evidentiary standard that is analogous to the U.S. probably
cause standard that is imposed on the United Kingdom for
requests to the United States. The United States also can use
hearsay evidence in British courts. This change greatly
facilitates the presentation of extradition request from the
United States to the U.K., and enhances our ability to obtain
fugitives wanted for trial in the United States on a range of
serious offenses.
Recently, however, the U.K. executive branch has been
facing increasing pressure from those who complain of a lack of
``reciprocity'' in the U.S.-U.K. extradition relationship
because the U.S. Senate still has not approved this treaty and
the executive branch has therefore not been able to bring it
into force. As a result of this criticism, amendments have been
proposed to the U.K. Extradition Act that would remove the
preferential treatment currently afforded the United States in
advance of the treaty's entry into force, and the good faith of
the United States has been called into question by members of
the British Parliament. Indeed, as Mr. McNulty mentioned, just
last week, the House of Lords voted by a wide margin to strip
the United States of its preferred status under the Extradition
Act. It was a source of sadness that one of the members voting
to restore the more burdensome extradition arrangements with
the U.S. was former Prime Minister Margaret Thatcher, a staunch
ally of the United States. Following the vote in the House of
Lords, an equally fierce debate on the issue took place is the
House of Commons. A binding vote on the proposed amendments may
take place later this year, and could undermine major interests
of the United States and erode our credibility further in the
United Kingdom. The risk of this adverse result increases with
each passing week and month of inaction on the part of the
United States, and debate in the United Kingdom about the good
faith of the United States is doing immeasurable harm to our
reputation and standing.
In addition to these potential adverse changes in U.K. law
and ongoing criticism of the United States that result from our
delay, the U.S. of course can not benefit from the provisions
of the new treaty not otherwise addressed in U.K. law that,
once in force, would meaningfully advance some of our most
important law enforcement efforts. For example, the new treaty
has, like most modern extradition treaties, a provision
allowing for the temporary surrender for prosecution in the
Requesting State of a fugitive who has already been proceeded
against, or is serving a sentence in the Requested State.
There's no such provision in the current treaty. Temporary
surrender would be critical to many of our terrorism-related
prosecutions and would allow us to try expeditiously fugitives
such as Abu Hamza, who is currently serving a prison sentence
in the U.K. but is wanted to stand trial in the U.S. on a range
of charges, including providing material support to terrorist
organizations and attempting to set up a terrorist training
camp in the U.S. Without the new treaty, there is no mechanism
for the United States to obtain custody of individuals like
Hamza for the purpose of prosecution until they have completed
their sentence in the U.K.
The importance of improving our law enforcement
relationship with the United Kingdom is therefore even more
pressing now than it was when we testified in November, 2005.
The United States should benefit from the best possible
extradition relationship with the United Kingdom. Ratification
of this treaty would significantly further such efforts.
As I noted in my prior testimony to this committee, and in
my responses to the committee's questions for the record. This
new treaty will strengthen and modernize our extradition
relationship with the U.K. and will bring significant advantage
to U.S. and U.S. law enforcement efforts. Among the other
provisions in the treaty that will benefit the United States
are provisions on dual criminality, temporary surrender, the
U.S. will not have to face the more onerous prima facie
standard when submitting extradition requests to the U.K. These
and other improvements in the treaty will enhance the efforts
of the United States as it confronts increasing transnational
criminal threats, including those related to international
terrorist activities.
For these reasons, entry into force of this treaty is one
of the administration's highest law enforcement priorities.
Finally, I think it is very important to address the unfounded
claims made by some groups and that we've noted, we've heard
today that this new treaty with the United Kingdom is somehow
specifically targeted to the Irish-American community. These
arguments are simply not accurate. There's nothing in this
treaty that justifies these misinterpretations that have been
thrust upon it by these critics. To the contrary, this treaty
is no different in its scope of application than any of our
other extradition treaties, and it is entirely consistent with
U.S. obligations under relevant law. It applies to a full range
of criminal conduct and crimes, it does not target any
particular group, and contains all of the protections that are
expected under U.S. law and practice, including the fundamental
protections contained in the Bill of Rights.
The treaty modernizes one of our most important law
enforcement relationships. It's critical to the continued
efforts of the United States in the global war on terrorism and
should be ratified forthwith.
Mr. Chairman and Senator Dodd, we very much appreciate the
committee's decision to consider this important treaty, I will
also be happy to answer any questions the committee may have.
[The prepared statement of Mr. Witten follows:]
Prepared Statement of Samuel M. Witten
Mr. Chairman and members of the committee: I am pleased to appear
before you today to testify once again in support of Senate advice and
consent to ratification of the U.S.-U.K. Extradition Treaty. I will
take the opportunity today to bring to the committee's attention
developments that make entry into force of this key law enforcement
treaty a matter of even greater urgency than when I testified in favor
of Senate approval on November 15, 2005.
The United Kingdom is of course one of our closest partners in the
war on terrorism. The new, modern treaty before the Senate has the key
provisions found in virtually all of our modern treaties and reflects
this close relationship. I will discuss briefly in this testimony the
key benefits that will accrue to the United States from this treaty,
but before doing so, I need to highlight for the committee several
additional challenges that have emerged from the delay in entry into
force of this treaty.
In 2003, the U.K. adopted domestic legislation simplifying its
extradition practice, and in a show of good faith in anticipation of
this new treaty coming into force, it applied the benefits of the new
law to the United States. The British Government was accused in
Parliament of acting prematurely, with critics saying that this change
should wait until the Senate ratified the extradition treaty. The
British Government answered that criticism by stating that it
anticipated quick ratification by the United States.
Our delay in ratification has become a major political issue in the
U.K. The issue is being seen by the British media and public as a
question of good faith on the part of the United States. Inaction on
our part now not only threatens the favorable treatment we receive in
extradition matters, but it is undermining British public opinion that
we are a reliable ally. Recent editorials and articles in the London
Times, for example, reflect the sentiment held by many in the U.K. that
justice is not being done for the United Kingdom. A June 28, 2006
London Times article notes that the treaty has been cited by Prime
Minister Blair's critics as an example of U.S. government indifference
to the U.K.
Under the changes to U.K. domestic law brought about by the 2003
U.K. Extradition Act, the U.S. received preferential designation in the
British system as a ``part 2 country.'' The most significant result of
this favorable designation is that, when seeking the extradition of a
fugitive, we benefit from an evidentiary standard that is analogous to
the U.S. probable cause standard that is imposed on the United Kingdom
for requests to the United States, The United States also can use
hearsay evidence in British courts. This change greatly facilitates the
presentation of extradition requests from the United States to the
U.K., and enhances our ability to obtain fugitives wanted for trial in
the United States on a range of serious offenses.
Recently, however, the U.K. executive branch has been facing
increasing pressure from those who complain of a lack of
``reciprocity'' in the U.S.-U.K. extradition relationship because the
U.S. Senate still has not approved this treaty and the executive branch
has therefore not been able to bring it into force. As a result of this
criticism, amendments have been proposed to the U.K. Extradition Act
that would remove the preferential treatment currently afforded the
United States in advance of the treaty's entry into force, and the good
faith of the United States has been called into question by members of
the British Parliament. Indeed, we understand that just last week the
House of Lords voted by a wide margin to strip the United States of its
preferred status under the Extradition Act. It was a source of sadness
that one of the members voting to restore the more burdensome
extradition arrangements with the U.S. was former Prime Minister
Margaret Thatcher, a staunch ally of the United States. Following the
vote in the House of Lords, an equally fierce debate on the issue took
place in the House of Commons. A binding vote on the proposed
amendments may take place later this year, and could undermine major
interests of the United States and erode our credibility further in the
United Kingdom. The risk of this adverse result increases with each
passing week and month of inaction on the part of the United States,
and debate in the United Kingdom about the good faith of the United
States is doing immeasurable harm to our reputation and standing.
In addition to these potential adverse changes in U.K. law and
ongoing criticism of the United States that result from our delay in
bringing the treaty into force, the U.S. of course cannot benefit from
provisions of the new treaty not otherwise addressed in U.K. law that,
once in force, would meaningfully advance some of our most important
law enforcement efforts. For example, the new treaty has, like most
modern extradition treaties, a provision allowing for the temporary
surrender for prosecution in the Requesting State of a fugitive who is
already being proceeded against or serving a sentence in the Requested
State. There is no such provision in the treaty currently in force.
Temporary surrender would be critical to many of our terrorism-related
prosecutions and would allow us to try expeditiously fugitives such as
Abu Hamza, who is currently serving a prison sentence in the U.K. but
is wanted to stand trial in the U.S. on a range of charges, including
providing material support to terrorist organizations and attempting to
set up a terrorist training camp in the U.S. Without the new treaty,
there is no mechanism for the United States to obtain custody of
individuals like Hamza for the purpose of prosecution until they have
completed their sentences in the U.K.
The importance of improving our law enforcement relationship with
the United Kingdom is therefore even more pressing now than it was when
we testified in November, 2005. The United States should benefit from
the best possible extradition relationship with the United Kingdom.
Ratification of the U.S.-U.K. Extradition Treaty would significantly
further such efforts.
Turning to the treaty itself, in my testimony before this committee
in November of last year, I emphasized the very strong interest of the
administration in bringing this treaty into force quickly. I have
testified in detail to this committee already on the importance of this
treaty and therefore will just highlight several key reasons here.
Once the treaty is ratified, the United States will be
certain to receive the benefits of the 2003 changes in U.K.
law, including the reduction in the evidentiary standard that
the United States is required to meet when seeking the
extradition of a fugitive from the United Kingdom, thereby
making it easier to bring fugitives to justice in the United
States. The new treaty makes the evidentiary standard required
by both sides broadly comparable.
The proposed treaty defines conduct as an extraditable
offense if the conduct on which the offense is based is
punishable under the laws in both States by deprivation of
liberty for a period of one year or more or by a more severe
penalty. This kind of pure ``dual criminality'' clause will be
an improvement over the treaty regime currently in place, which
lists categories of offenses plus other offenses listed in
relevant U.K. extradition law and considered felonies under
U.S. law. It will put the U.S.-U.K. relationship on a par with
virtually all of our other major extradition relationships that
have been updated in the last thirty years. As with all of our
dual criminality treaties, this provision means that the United
States would not be required to extradite a fugitive where the
U.K. charge would not be a crime if committed in the United
States. Because of the protections of dual criminality, it is
simply not possible, as some opponents of the treaty have
argued, that an individual could be extradited from the United
States if the conduct for which extradition is sought is
protected by the U.S. Constitution.
The treaty requires that extradition be denied if the
competent authority of the Requested State determines that the
request is politically motivated. Like all other modern U.S.
extradition treaties, the new treaty grants the executive
branch rather than the judiciary the authority to determine
whether a request is politically motivated. This change makes
the new treaty consistent with U.S. practice with respect to
every other country with which we have an extradition treaty.
U.S. courts will of course continue to assess whether an
offense for which extradition has been requested is a political
offense. The proposed treaty deals with the treatment of the
statute of limitations in away that is consistent with most of
our new extradition treaties. The party that receives an
extradition request does not decide on the statute of
limitations that applies to the crime, but leaves that to the
courts and legal system of the state that has brought the
criminal charges. Contrary to the claims of some, therefore,
the proposed treaty does not eliminate statutes of limitations,
but rather reserves their interpretation to the courts most
equipped to do so.
The treaty sets forth a clear ``Rule of Specialty'' which
provides, subject to specific exceptions, that fugitives can
only be tried for the charges for which they were extradited,
absent specific consent by the State that has extradited the
fugitive. The current U.S.-U.K. treaty does not contain a
provision for waiver of the rule of specialty, and the proposed
provision is substantially the same as the parallel provision
in our modern extradition treaties. It serves an important
purpose in rare cases where, for example, evidence of other
extraditable offenses surfaces after extradition.
The treaty also includes modern provisions on provisional
arrest, which is limited to a specific period of time during
which a formal extradition request is to be submitted, and
application of the treaty to conduct prior to entry into force
that, contrary to the claims of critics, does not allow the
United States to seek extradition for conduct that was not
criminalized in the U.S. at the time it took place. These
provisions will put our relationship with the United Kingdom on
a par with our other major allies and treaty partners.
After the hearing before this committee in November 2005, the
committee submitted certain questions for the record to me and to the
Department of Justice witness, Mary Ellen Warlow. We were pleased to
provide answers to all of those important questions and, in doing so,
address particular concerns of the committee in relation to the treaty.
For example, we explained the reasons for modifying the exceptions to
the political offense clause under the new treaty.
We also explained why the new treaty does not include Article 3 of
the 1985 supplementary treaty, which allowed fugitives to avoid
extradition if they could establish before a U.S. court that the
request for extradition was politically motivated. We explained that,
in U.S. law and practice, questions of political motivation are
determined by the Secretary of State, in recognition of the principle
that the executive branch is best equipped to evaluate the motivation
of a foreign government in seeking an individual's extradition. Article
3 of the supplementary treaty, which undermined this longstanding Rule
of Non-Inquiry, led to long, difficult, and inconclusive litigation in
several cases where U.S. courts were thrust into the unfamiliar and
inappropriate position of addressing the motivation of a foreign
government, as well as claims of generalized bias within a foreign
system of justice. We explained in detail the circumstances of each of
those cases, and noted that none remained pending at this time. Our
experience with Article 3 of the supplementary treaty confirmed the
need to exclude this anomalous provision from our bilateral extradition
treaties.
We also explained provisions in the treaty relating to
extraterritorial jurisdiction, provisional arrest, probable cause, and
the search and seizure of items. We further explained the circumstances
making it appropriate to include in the treaty the possibility of
waiver of the rule of specialty. As we explained in detail in our
responses to the committee's questions, all of these changes were meant
to modernize and strengthen the ability of the United States to seek
and grant the extradition of fugitives wanted for serious crimes, all
within the framework of well-established U.S. law and procedure.
Finally, I note that in addition to the matters addressed in our
questions for the record, there have been some unfounded claims that
this new treaty with the United Kingdom is somehow specifically
targeted to the Irish-American community. These arguments are simply
not accurate. There is nothing in this treaty that justifies these
misinterpretations that have been thrust upon it by these critics. To
the contrary, this treaty is no different in its scope of application
than any of our other modern treaties, and it is entirely consistent
with U.S. obligations under relevant law. It applies to a full range of
criminal conduct and crimes, does not target any particular group, and
contains all of the protections that are expected under U.S. law and
practice. The treaty modernizes one of our most important law
enforcement relationships, is critical to the continued efforts of the
United States in the global war on terrorism, and should be ratified
forthwith.
Mr. Chairman, we very much appreciate the committee's decision to
consider this important treaty.
I will be happy to answer any questions the committee may have.
The Chairman. Well, thank you very much for that testimony,
Mr. Witten. The committee has invited testimony from the
administration today in order to create a full record for the
committee's consideration, including the administration's views
on recent developments in the United Kingdom related to the
treaty.
Before we get to that issue, we will ask witnesses to
comment on some of the same issues we discussed with the first
panel of witnesses.
First of all, Professor Boyle has indicated in his written
testimony his view that transferring to the executive branch
the authority to determine whether an extradition request is
politically motivated would be unconstitutional. What is the
administration's reaction to this assertion?
Mr. McNulty. Mr. Chairman, thank you.
We would strongly disagree with that characterization. In
fact, the only treaty in U.S. history to ever have given that
authority to the U.S. District Courts was the 1985 Supplemental
Treaty with the United Kingdom, and it did so for a specific
set of offenses. The suggestion that this treaty somehow
reverses centuries of precedent is completely wrong. In
reality, it follows the longstanding U.S. judicial precedent
and treaty practice.
It's important to note that while no defendant has ever
succeeded in defeating his extradition to the United Kingdom,
in the judicial process, we can see from those that have
occurred the difficulty and the length of time that is involved
in watching courts grapple with this kind of question. The
issue is better reserved, that is the question of political
motivation, just as you and Senator Dodd sorted it out with the
previous panel--it's better reserved for the Secretary of
State. Now, Senator Dodd, in your questions to the panel, you
noted that there was an issue of a question of law that the
court might be the appropriate body to deal with.
And I think that's why this provision again, consistent
with all of the other modern extradition treaties is the way it
is, because it recognizes this isn't a question of law, this is
really a question of fact. It's a factual issue concerning
whether or not political motivation does play a role in the
requesting country's request for extradition, and that
question--after all of the other judicial process has taken
place, which was laid out quite nicely by Professor Morris--
after all of that judicial process has taken place, including
the issue of the political offense defense, now you get to the
question of appealing to the Secretary of State on political of
motivation, and that--the Secretary of State is in a better
position from a factual basis--to be able to know all of the
circumstances which exist that would shed any light on the
question of whether or not such an objection or a defense is
valid.
And so I think that the concerns about this not being a
judicial process were certainly not a constitutional question,
but as a policy matter, it's much better to have the Secretary
of State do it, as in all of the other cases.
And finally, I would say this relates to the larger issue
of having a day in court, and it's clear through what has been
said so far today that there is a day in court, this is all
about the judicial process. But you finally get to this one
question at the end of that lengthy judicial process that does
exist.
The Chairman. Senator Dodd?
Senator Dodd. Just to follow up, and I appreciate it, I
agree, this was an unusual provision included in the 1985
agreement. No one has suggested that this was a decades-old
precedent, but what we're suggesting, what's been suggested in
this treaty was an exception to what has historically been the
rule, but I think it is worthy of note, and you suggested as
much in your comments here--I went back over and reviewed the
times that this matter in the last 21 years, that people have
invoked the Article 3 claim. And last time it was invoked was
sometime in the 1990's. I think there have been about three
cases, and of the 33 matters--and correct me if I'm wrong--
among the 33 cases for a request from the United Kingdom to the
United States for extradition, Article 3 claims were made in
not a single one of those cases.
Now granted, it is unusual, but I don't understand what the
problem has been. It seems to me you have to make a better case
of changing this than the fact that it's a little different. We
understood it was a little different, but in the 20 years it's
been in existence, in the 33 cases brought by the U.K. in not a
single one of those cases has anyone used the Article 3 claim,
so what is the problem? Practically, what is the problem?
That's 33 cases in the last five years, I'm corrected.
Mr. Witten. Well, Senator Dodd, I will address this
question.
There are really two parts to your question of what is the
problem here. One part is that there is a history here of years
and years of litigation in which fugitives accused of crimes
that would fall within Article 3 of the Supplementary Treaty
sought to impugn the motives of the United Kingdom in seeking
their extradition by resorting to U.S. courts admitting
evidence. These cases were in litigation at the District Court
level, the appellate court level, ultimately the individuals
were not extradited, and after the Good Friday Agreement----
Senator Dodd. You're suggesting that all of those judges
were politically motivated in all of the decisions they made on
those cases?
Mr. Witten. No, I didn't say that at all. What I'm saying
is that judges were put in the unfamiliar and inappropriate
place because of Article 3 of the Supplementary Treaty of
having to judge issues within the United Kingdom that in every
one of our other 125-130 extradition treaty relationships all
reserve to the executive branch. It's not that the judges were
politically motivated and taking their time, the judges were
faced with a decision that is not a decision--it was a matter
of inquiring into the conditions of prisons outside of the
United States, it was a matter of examining how and why the
British Government believed that these individuals should be
returned for extradition. The Justice Department had teams of
people that had to present and defend, had to present evidence
and defend the United Kingdom against claims of unfairness and
it's so anomalous and it's so inappropriate for one government
to be. The second part is, so that answers the question about
what's the big deal, the big deal is that our courts were put
in this position, and individuals were not extradited for
crimes for which they should have been extradited.
But then there's the broader issue, Senator Dodd, of the
U.K. Government being put in this difficult and anomalous
position, and the United States, frankly, being put in an
anomalous position vis-a-vis the U.K. that we don't subject all
of our other extradition partners to this additional level of
judicial scrutiny.
As reflected in the Deputy Attorney General's comments, and
in Professor Morris's comments earlier today, the U.S. courts
have a vital role to play, they filter out cases based on dual
criminality, they filter out cases based on political offense
and quantity of evidence and quality of evidence----
Senator Dodd. Do you know how many cases we're talking
about here in 21 years?
Mr. Witten. I know that the number is not huge.
Senator Dodd. Five fugitive cases, two were extradited,
three people in one case took years then reviewed their request
after the Good Friday Accords--I just think you could make a
better case, here, you have to make a better case for the
problem. I realize it was different, there's no question about
it--it was different. If there's a case to be made----
Mr. Witten. Let me posit an example of the problem. Let's
say that this next week there were to be a horrible terrorist
attack in London, akin to the July 2005 subway bombings. This
is all hypothetical, fortunately, but let's say next week
there's another Al Qaeda attack. You have fugitives from that
attack that find their way into the United States, the British
Government seeks their extradition. The British Government
supplies all of the necessary documentation and satisfies the
State and Justice Departments that there is a quantum of
evidence relative to the standards of the treaty and applicable
to U.S. law. And then the individuals are arrested, and are
brought before the courts and begin litigating before our
courts the motivation of the U.K. Government. ``Their coming
after me because I'm Muslim, because I'm of a certain ethnic
character, because they don't like something about me, because
conditions there are discriminatory,'' all of those issues
would be handled by U.S. courts for the U.K., but if the same
events had happened in Spain, in Madrid, for example, another
treaty partner, in Paris--U.S. courts would not have to be
seized of these dramatic issues of the motivation of the
requesting country.
Mr. McNulty can address the practical consequences of
having to litigate this, but when you think about it, it is
striking and frankly inappropriate that the United Kingdom,
after an Al Qaeda attack, would have to have this additional
layer and burden in order to show justice to their people.
Senator Dodd. I hear you, I don't want to dwell on it, I
hear you. The problem is, I know, and I appreciate it--we all
are doing everything we can to defeat terrorism here. But we
are a nation of laws, we're a nation of laws, and we have a
great ally and a great friend in Great Britain, but we need to
remind ourselves in all of this that we are a nation of laws.
And while people may be wrong and may have done terrible
things, the idea of presenting evidence and so forth is
something we kind of cherish in this country. We better be
careful as we go forward here that we don't just abandon, in a
sense, I'm more than anxious to find out ways to make this
work, and work well, but I get uneasy when I hear people
suggest somehow that those provisions ought to be sort of set
aside because of the allegations made here, and you can create
a fact situation hypothetically that could certainly make all
of us very uneasy, but I think we ought to be careful about
creating hypotheticals which would suggest, somehow, that
people's rights in this country are somehow going to be
abdicated because of the nature of the alleged crime committed
here. So, I think there is an argument to be made here, but be
careful. And all I'm trying to raise with you here is--what is
the problem with this, in effect, based on 21 years of
experience? And I don't see much. Now, you can hypothetically
go forward and create situations, but that's the only question
I have here.
Mr. McNulty. Senator, can I make one more response?
We talked here about the fact that on this question--so,
you first make a point about the rights--we're all in agreement
with that. That we all have to proceed under the rule of law,
and that we're not going to affect rights of anyone. The
question we're dealing with right now is whether or not after
all the procedures are followed and all of the rule of law is
adhered to, whether or not a person can then still get relieved
from extradition based on political motivation, and how that
should be done. And you've made the point--and I understand
it--it's a fair question, but there has been a limited number
of cases where this special, anomalous situation that the U.K.
faces where their requests to us would go before--and the issue
of political motivation--would go before a judge rather than
the executive branch. That in that one case, that's it's only
been a certain number, the judges eventually find their way
through it or change it.
Senator Dodd. But the political motivation works both ways,
I just listened to Mr. Witten give a very strong argument, the
bulk of his argument was our friends in Parliament over there
are upset with us, and that the political dimension of this
debate gets highlighted by the argument presented--with all due
respect to Maggie Thatcher and so forth--I've got to all of a
sudden adopt a treaty here and ratify it because some members
of the House of Lords dislike Tony Blair and want to embarrass
him to some degree. There's a political motivation behind the
pressure here for us to ratify something.
Now, I'm anxious to hear what they have to say, but as one
member of this body, I'm not going to ratify a treaty--with all
due respect to my friends in the British Parliament--because
they want me to. I've got an obligation to my constituents and
my Constitution which is different then theirs. They can say
all they want, but in the final analysis, I have an obligation
to people here. I have an obligation to people here--the
political dimension to this, you've highlighted the problem in
a sense--if our argument is we ought to do this because our
friends in Great Britain are demanding it of us, then that in
fact corroborates the concern being raised by people that if,
in fact, it ends up being a political question in the end, the
motivation, we're more apt to make a decision in favor of them,
and WINPACs may point otherwise.
Mr. McNulty. It's that obligation that you have that brings
me here today. Because it's the obligation to protect the
American people and to have treaty obligations in place in the
United Kingdom affecting our request for extraditions from the
United Kingdom back here, that is the whole reason why we're
doing this. This anomalous situation involving political
motivation is a piece of a larger agreement, and to treat this
country the way we treat all of the others is a necessary step
in order for us to enjoy the benefits of this treaty, first and
foremost being return of terrorists who have attacked Americans
without having to go through years of litigation in the United
Kingdom. And that is what we at the Department of Justice faced
before 2003. Apart from the question of what litigation goes on
here, but it's the litigation we face there that changed so
dramatically by not having to have a prima facie standard.
Senator Dodd. That's a good point, and I hear you, and I'll
move on here. But we can't go over how we're sort of tailoring
our own laws because other countries are threatening us with
actions they may take that may make it more difficult for us--
that's a dangerous precedent to set around the world, and if it
becomes well-established that that is how we write our laws
based upon whether or not we're going to get cooperation
elsewhere, we could find ourselves doing some things here we
might regret. I hear what you're saying.
Mr. McNulty. I fully agree with you, Senator, if I thought
that was true, but we're not talking about tailoring our own
laws, but bring the one particular provision in conformity with
our laws that we have with every other country.
Senator Dodd. Thanks.
The Chairman. Let me just add something that is not as
potent as the argument about terrorists, but as I heard in our
first panel, the gentleman suggesting that if he had made
comments in a public forum with regard to Northern Ireland and
Great Britain and these sorts of things, that he might be
extradited for that. Essentially, we tried to establish in the
first panel that there's a lot of protections because the case
of extradition goes through Title 18, through the judicial
system--therefore if a court of law indicates that he is not
going to be extradited there is not any additional review by
the Secretary of State that says you are going to be
extradited. In other words, there's not double jeopardy. That
was, I think, the concern of the gentleman who believed he
might have made some comments in the course of the last 20
years about problems in Ireland and the United Kingdom as many,
many others have in the United States.
So, I think Senator Dodd suggested perhaps that we may make
a statement or have an addendum or something that indicates
that that is clearly, the Constitution applies, so does Title
18--it's not been stripped away and that, in fact, this
gentleman has an extra appeal in this case through the
Secretary of State who may say, ``Well, the court didn't
understand, but in fact, this is a politically motivated thing,
and therefore we're not going to extradite.'' And I mention
that simply because that is one whole raft of concerns, I
believe, that come along through this debate.
Well, let me go on to question two--Professor Boyle has
offered testimony the United States would violate its
obligations under the International Covenant on Civil and
Political Rights if it were to ratify the proposed treaty.
Professor Morris has addressed this issue in her testimony in
some detail earlier this morning. What is the administration's
view on the potential violation of the International Covenant
on Civil and Political Rights?
Mr. Witten. Mr. Chairman, we have reviewed these
allegations, which were set forth in a letter that Professor
Boyle sent to the Foreign Relations Committee in, I believe,
April of 2004, where he lists a series of provisions from the
International Covenant on Civil and Political rights, and
asserts that entering the treaty would violate them. We've
reviewed this issue, and as you noted, Professor Morris has
addressed it in great technical detail, so I'll just really
summarize.
The United States would not violate its obligations under
the International Covenant on Civil and Political rights if it
were to ratify the proposed Extradition Treaty with the United
Kingdom. We agree with the testimony you've already heard that
the proposed treaty and U.S. extradition procedures, as you've
noted, Mr. Chairman, in Title 18 are entirely consistent with
the protections enshrined in the International Covenant.
Second, we note that some critics have suggested--without
basis or explanation--that the U.K. is in violation of its
obligations. We do not see merit in those claims, but even if
there were a claim that the U.K. were somehow in violation of
its ICCPR duties, U.S. obligations under this covenant would
still not be implicated for two reasons.
First, as reflected in the negotiating history of the
Covenant, and consistent positions taken by the United States
in all of the years since, our obligations relate to conduct by
the U.S. solely in its territory.
Second, our obligations under the covenant certainly do not
apply to the conduct of other sovereign governments within
their own territory. So I guess, to summarize, Mr. Chairman, we
of course take any allegation of a treaty violation very
seriously. We've reviewed it, we've read Professor Boyle's
letter carefully, we simply don't see merit to it and Professor
Morris went into it at great detail, and I understand her
testimony is part of the record.
The Chairman. Senator Dodd, do you have any comment on this
issue?
Senator Dodd. Well, no, I think it is a good point--I
wonder if you might just go on to a related matter, because it
gets to this question--kind of two issues. One has to do with
the double jeopardy provision, I presume you're both aware of
this thing that recently the U.K. enacted a law, a Criminal
Justice Act 2003, provides in part for the re-trial in certain
cases--even though there's been an acquittal--I wonder how that
would comport with U.S. standards of due process, and whether
or not that raises the questions about the duality issue where
you would have had a case, I presume, and I'm trying to imagine
a fact situation where they would have tried a case that, for
whatever reason, the matter would have been acquitted because
new evidence emerges, they re-try the case, and therefore you
could end up with a duality--does that pose any issues that you
think ought to raise concerns with members of this committee?
Mr. Witten. Mr. Chairman, we are aware of the law, I'm not
an expert in U.K. domestic law, so I don't know how that
provision will actually be construed, I know that in some
systems, jeopardy attaches at different times in the process,
so I don't know in the hypothetical case how it could come up.
In any case, we would evaluate any extradition request to be
sure that they meet the requirements of the treaty.
Senator Dodd. Let me--on a related matter, and again, this
gets very technical and esoteric to some degree, but they are
important questions to people--the Rule of Specialty, which is
another matter of concern. And for those--and believe me, until
I got into this I wasn't sure what the Rule of Specialty is
aside from what I have in front of me--but apparently it is a
time-honored tradition of extradition practice designed to
ensure that a fugitive surrendered for one event is not tried
for other crimes. And to ensure that the request is not used as
a subterfuge, many recent treaties--including this one,
however, allow for waivers of the rule if the Executive
requested State consents. I understand from a prior answer this
is rarely done since 1991, the Department of State has received
thirty requests for waivers, and of these 17 requests were
granted, five were denied and eight are pending. I wonder if
you might share with us a little more what sort of cases are
these where the rule is waived and will the request of waiver
usually related to the same offense or act in some way, can you
comment on this?
Mr. Witten. I can, Senator. First, in a general sense,
you're accurate--this is a typical provision in modern
treaties. The older U.S. treaties dating back to the first part
of the century, or even the 1972 U.K. treaty has a Rule of
Specialty provision, but it doesn't explicitly state that it
can be waived by the requested state. This treaty provision in
the 2003 treaty brings the U.K. standard the same as a number
of other countries, and I would just note, Argentina and
Austria are some recent treaties that the committee has
approved, that it has the waiver clause, but more generally,
the treaties in the past ten or fifteen years have had that in
terms of how it works, the requesting state--after an
extradition request has been made and acted on, then gets
custody of the fugitive through the extradition process. It may
be the case that other conduct came to light after the
extradition had taken place and there could be--in the U.S.
there's a District Court case called Berenger v. Vance where
the issue was litigated and there are certain standards to U.S.
law that set the parameters to when the State Department will
consent to a request to a waiver of the Rule of Specialty.
Typically, I remember the banner requirement being that at the
time the initial request was made, the government did not have
in its possession information, the ability to request
extradition at the time, and it had--I think it's phrased as
``just cause'' for failing to make the request. For example, if
they were in the middle of the investigation of the other
conduct, and then the person is extradited, and then the state
that then has custody of the fugitive following the extradition
seeks a waiver of the Rule of Specialty, it will present
evidence sufficient to convince the requested state that it
will, that extradition would have met the requirements of the
treaty had it been made. And the purpose of the protection, as
you may know, is to be sure that Country A doesn't ask Country
B for extradition for one crime, but secretly they have
indictments for 10 others, and they didn't want to mention it
because there would be a concern there would be a problem with
extradition for the others.
The Chairman. Thank you very much. Now, let me just ask the
general question--where I turn to current events to interview
and to comment on any other issues discussed with the first
panel, I think we've touched upon several of those, but if you
have any additional comment, this would be an appropriate time
to make that comment.
Senator Dodd. I have a couple of specific questions maybe
at the appropriate time, Mr. Chairman. I'd just like to raise
the issue of the dual criminality issue--you heard us discuss
awhile ago and I raised a fact situation and Ms. Morris
responded to me by saying there would more, but better, rather
than picking out one statute in one place I used the District
of Columbia possession of a firearm law as an example of where
duality of criminality might raise some concerns, when you're
looking at a State or in this case the District of Columbia
having a provision not typical in the majority of jurisdictions
in the country, but would I presume, qualify for dual
criminality for purposes of extradition. And it seems to me
this needs some clarity because if it's just one jurisdiction,
it could be a city ordinance of the same and it might qualify.
As for dual criminality, I don't know if we were specific about
state and Federal--I presume Federal--to what extent do you
have to have a pattern, and to what extent this contributes to
forum shopping in a sense by the Justice Department looking to
find some place that would qualify for duality in terms of
qualifying for political motivations, let's say here, and that
worries me here a little bit. Federal law, I have no problem
with that, that seems to be the natural one where the United
Kingdom is seeking extradition from the United States--duality,
I presume, would apply to the national laws of the United
Kingdom alongside the national laws of the United States. If it
comes down to some local jurisdiction's criminal statute--and I
guess you would have to be a state to have a criminal statute,
I don't know if a city can have a criminal statute or criminal
ordinance--you understand the hypothetical I'm engaging in and
suggesting to you here, and what is the answer to it? We
obviously know the issue--how does it work?
Mr. McNulty. We both can respond on this. First I want to
say that initially, of course, the Federal law is going to
govern, and Federal law is broad in many ways, and so it's
going to cover, as you know that even Federal laws applied to
lands like Indian reservations, so we have several laws on the
books that cover murder and kidnapping and other violent
crimes, so that is the first requirement.
Secondly, when the hearing occurs, the action of the court
takes place, it occurs in the jurisdiction where the person is
found so that the government can not--as you have said, I think
earlier in the other panel, some concerns about choosing a
forum that might be favorable to the dual criminality test--and
that is not going to be possible, it's going to be based,
again, on where that individual is.
Of course the defendant will have--or the person being
requested--will have the right to raise any appropriate defense
in the course of the extradition process, and could challenge
this question on the dual criminality issue, which is one of
the key things the court must look at for purposes of making
the determination of extradition.
Mr. Witten. Senator Dodd, I think the question came up in
an unusual way, and I'll try to address that, but let me talk
for just a minute about dual criminality and the way it works
in practice, in my experience, with the extradition practice of
the United States. Often the issue is not at all hard--if it is
a list treaty, you look to the list to see if the conduct is
criminalized and subject to the list. The U.K., as you know,
the current treaty does have a list of offenses, and it has an
additional provision at the end which indicates that
extradition is also possible for conduct that is a felony, or
punishable by more than a year in prison. The old treaty,
before the 1970's, our extradition practice just listed
offenses, so the test between the governments was the list.
This treaty with the U.K. is a dual criminality, it's what
we call a ``pure dual criminality'' treaty so we don't have to
go through the list of offenses and worry about, is it
criminalized here or there--you have a different test, and
whether it's criminalized in both systems, and I'll try to
address that, although as I say, in my twelve years of dealing
with this issue in the U.S. extradition program, the issues are
generally pretty straightforward. Our Federal law is so
comprehensive that we rarely have to look at the laws of
individual states to see if conduct is dually criminal--most of
our extraditions are for crimes of violence that are
criminalized at the Federal level. Issues have come up through
the years with issues like the word ``kidnapping'' doesn't
include parental kidnapping and so forth. But by and large,
it's a straightforward Federal law, typically that would
address the crimes for which extradition is sought, or
extradition is requested.
The cases that, I think, the first panel got into a little
bit involves the rare case where a foreign government has a
crime on its books, there is no Federal parallel to that crime,
to the conduct--it is not necessarily the term of years, but
what is the conduct for which they're seeking extradition. And
then there's no U.S. Federal law, someone is held for
extradition, and then litigates--there's no Federal law. And
then there are some Federal court cases and perhaps we should
prepare a paragraph or two for the record to address this
question, because I don't know that I'll get it all right but I
think there's a multitude test where the jurisdiction where the
fugitive is located would look to a majority of U.S. states, or
possibly the state where the fugitive was arrested to see if
there's no federal law that matches up with the foreign
jurisdiction's law--what would happen in that court? And let me
suggest, if it's all right with you and the Chairman, that
maybe we'll do a paragraph on this rare case where there's no
Federal law, and that extradition is sought from the United
States and you have to look at state laws.
Senator Dodd. It needs some clarity, I think. And we're
setting some precedents here, and I presume we're going to be
applying this to other treaties that may come along with
extradition, and I think clarity on this or you're going to run
into a buzz saw, I can tell you, just on the issue of the
possession of firearms, I cited one organization that I suspect
may have some real concerns about a provision like that and
whether it applies, but that situation I'm talking about, where
they arrest someone in Texas for extradition. There's a law in
Oklahoma on the possession of explosives that would comply with
the duality of criminality. In the fact situation--could you
take the Oklahoma law and apply it to the standard of dual
criminality even though the person wasn't from Oklahoma, wasn't
in Oklahoma when they were arrested, but the statute exists in
Oklahoma, does that meet the standard?
Mr. Witten. I want to clarify one point, and then I would
like to submit something for the record.
Senator Dodd. We appreciate that.
The Chairman. We would be pleased to have that for the
record.
Mr. Witten. Why don't we prepare something on this rare
issue of where extradition is sought and you have to look at
the non-Federal information.
Mr. Witten. I just want to clarify one point--we are
setting a precedent within the U.S.-U.K. context, this will be
new for that. But I just want to return to the theme that this
treaty with the United Kingdom is substantially the same as all
of our modern treaties--it has a unique history because of the
1985 Supplementary Treaty, but what we're doing here is nothing
more than attempting to bring the U.K. relationship in line
with other modern treaties.
Senator Dodd. I appreciate that, and I would appreciate
having something submitted on it and you understand I'm not
trying to create totally bizarre--but you can understand how
this might happen under a different year's--someone looking
ahead and forum-shopping.
Mr. Witten. We will submit something on this.
Senator Dodd. Let me if I just can, just quickly raise two
other questions, if I can. And one has to do with the Northern
Ireland justice system, and it's of course very similar to that
of England and Wales--most lesser offenses are prosecuted by
the police in Northern Ireland, serious crimes are prosecuted
by the Director of Public Prosecution, jury trials are normal
practice except for offenses involving terrorism or allegations
of terrorism under the Northern Ireland Emergency Provisions
Act of 1996 and deliberating offenses covered by Schedule One
of that Act, judges sit alone without juries in the so-called
Diplock courts, and I'm just curious--do provisions of the
Northern Ireland Act of 1996 still apply with respect to
individuals charged with offenses under Schedule One of that
Act being denied jury trials? Number two, have any human rights
organizations criticized this practice? I presume some have.
And was the issue of the Diplock courts a subject of U.S. court
deliberations in considering the U.K. extradition requests for
Kevin Art, Paul Brennan, Clarence Kirby--which dragged on for
years until the U.K. withdrew its extradition request in the
year 2000. And under the proposed treaty, would it be
appropriate for U.S. courts to look at the issue of the Diplock
courts in determining whether to approve extradition, or would
that be a goal for the Secretary of State--I guess in this case
it would be under, it would be proper--there are about three or
four questions there.
Mr. Witten. Senator Dodd, of the questions you asked,
actually it may be prudent for me to work with the Justice
Department and submit information. On the last of your
questions, would it be appropriate for the U.S. to extradite
into a particular court system? I think the premise there is
sort of the same as some of the other discussions that we've
had in that the question of conditions in a certain
jurisdiction or the motivation of those seeking, or what will
happen after extradition, and in the view of the administration
should be handled by the Secretary of State and by the
executive branch as opposed to the courts. So, the answer is,
would it be appropriate to review those issues? I think we need
a little more--we look into the first two or three questions
and get you a more structured answer about the generic issue of
conditions and motivations and things like that, we would view
as something that could be considered, but not in the way it is
now available to be considered in U.S. Courts.
Senator Dodd. Take a look at that one, too, and I'll give
you a chance to maybe give me a more concise and direct answer
on that one, too.
Mr. Witten. So, you'll be rephrasing?
Senator Dodd. I will give you the questions, I'll submit
the questions to you. I realize that--I don't expect you to,
I'd like you to go back and review, and make sure the policy--
I'm very interested in this, because it is a process, it is a
procedure and I would presume if we weren't talking about the
United Kingdom where there's a certain high degree of respect
for processes and procedure, we're talking about some other
place, how people would be tried, under what circumstances
would be a very important matter.
Mr. Witten. We will answer any questions.
Senator Dodd. So, I'd be interested in that.
The last issue I want to raise with you is the statute of
limitations as a bar to extradition under the current treaty--
of course extradition should not be granted or barred by the
statute of limitations according to the laws requesting all
requested parties, and that's in 1985--in other words, statute
of limitations of other courts would apply, the proposed treaty
Article 6 provides the decision to grant extradition ``shall be
made without regard to any statute of limitations in other
states.'' And I recognize a lot of treaties have included this
provision, again this has been sort of more of the norm and yet
the statute still applies in the country where the person will
be tried. But numerous treaties approved by the Senate in the
last decade, including such countries as France, Hungary,
Poland and South Africa, have included some kind of provisions
on statute of limitations in both states makes it more
difficult, obviously, for those with concerns about the
proposed treaty to accept the removal of a role for the United
States' judiciary to make a determination about political
motivations, in a sense. I'm just curious why the statute of
limitations was excluded altogether, again going back, because
that's where most of them are, that is the precedent, and I
wonder if you might talk about the statute of limitations in
the United Kingdom, particularly on the Northern Ireland law
and what it is, because that still would apply, obviously,
whatever the statute of limitations would be in the requesting
country would apply. What is it in the United Kingdom? I don't
know what it is in Northern Ireland, and what protections
against politically motivated extradition requests under the
proposed treaty would insist in the proposed treaty?
Mr. McNulty. Let me take on at least two-thirds of that
question.
First of all, with regard to the statute of limitations,
it's not at all eliminated by this treaty with regard to its
being a defense, what the treaty seeks to do, as you say, as
with the case of other treaties is to put that question as to
whether or not the statute of limitations is a factor in going
forward in the appropriate tribunal. So, it says that the
decision by the requesting, or the requested, excuse me, the
requested country, will not turn on whether or not the
requesting country's statute has a statute of limitations
issue, or there is a question of a statute of limitations, but
instead, it will be decided based upon the dual criminality
standard we've talked about today.
Once the individual is returned, and that's the appropriate
place for the statute of limitation issue to be raised, and it
puts that in the appropriate tribunal, the appropriate court,
where the expertise on whether or not there is a statute of
limitations issue there will be resolved and litigated.
So, that's the thinking behind how the statute of
limitations issue will be addressed, and making the court that
is best equipped to interpret the issue the one that will
consider it.
As to--I can't speak to the particular issues involving
Northern Ireland, but I will be able to provide that
information to you as a part of the information that is coming
forward--the last point is----
Senator Dodd. What is it in the United Kingdom?
Mr. McNulty. It would differ with every different offense,
like our statute of limitations work.
Senator Dodd. Do they have, are there statutes of
limitations under British law?
Mr. McNulty. I'm not positive about that. I would have to
get back to you on that.
Senator Dodd. There's a woman behind you, I think, who has
that.
Mr. McNulty. We're going to check it before we say
anything.
Senator Dodd. Can you tell me why in the other cases of
Poland and France and Hungary and so forth why we retained
provisions dealing with the statute of limitations in those
particular treaties, and here is, this is apparently the case
again. I don't claim personal knowledge of those treaties, I'm
being told that language exists in those treaties, and they're
fairly recent. Once we've ratified, why we've retained it there
and not here? Using precedent and so forth as our argument,
we're taking it out of here, why do we keep it there?
Mr. Witten. Our preferred provision on statute of
limitations is the one in the U.K. treaty where there is not an
adjudication--as Mr. McNulty mentioned--there's not an
adjudication in the courts of the requested state on the
statute of limitations in the requesting state when it may have
been tolled, how it would work in practice, when does it start,
when does it end and so forth? Simply because that is not an
issue in the expertise of the requested state. I have several
examples, there are examples in all different directions,
Senator, you're exactly right, and that's a function because
each of these treaties are negotiated individually. And we come
to the table--I've come to the table many times in extradition
bilateral negotiations with a preferred provision, sometimes
other countries have domestic laws that prevent them from
agreeing with us, but from our perspective the rest of the
treaty is good, and we're willing to live with some
adjudication of statute of limitations. In this case, in the
other examples--Lithuania, Sri Lanka, Belize are three that we
just found this morning in anticipation of a possible
question--so our preferred provision, as explained by Justice,
is clear and it fits that and it is appropriate in this
relationship. Thank you.
Senator Dodd. I will submit for the record here, we have
Hungary which was approved in the 104th Congress, France in the
105th Congress, Poland in the 105th, India in the 105th,
Austria in the 105th, South Korea in the 106th Congress, South
Africa in the 106th--all have statute of limitations bars on
extradition.
Mr. Witten. Senator Dodd, can I just add one brief comment,
and I know that we've gone on a long time. I just want to make
clear that in a treaty like the U.K. and the several others
that I've mentioned where this treaty doesn't have anything on
statute of limitations, that of course, doesn't mean that the
individual can't raise statute of limitations claims when they
are returned, if they are returned to the country seeking
extradition.
Senator Dodd. This goes right to the heart when I asked the
question, and why I'm dwelling on this. When I asked the first
panel ``What are you really worried about here?'' And what
they're really worried about is that this treaty is going to be
used to reach back despite the efforts that's been made after
the Good Friday Accords to move beyond that. You might say,
listen, that's a totally legitimate concern, you've read the
letter from the home Secretary and others on this point--she's
listed out the various things and I hear you say that.
But I think it's fair to also take into consideration
people who've been through an experience where it's very rough
on them and they want to know that this is prospective, we're
not looking back, and so the statute of limitations issue can
really reassure constituency here that are very worried about
what may happen. Even though all of us are saying--this is not
going to happen, don't worry about it, it's not going to be the
case--we ratify this and find out it happens. And then if we're
taking statute of limitations provisions and other matters, how
much of a problem is it really here, and I would like you to
address that at some point, because it's an issue, I think
colleagues are going to raise. Again, if you sat here and told
me, ``Look, we don't want to apply this anymore, anywhere at
all,'' but if you've got seven or eight treaties that have been
ratified with it here, we need to take that into consideration.
If it does nothing else but allay the fears that this is not
going to be a reaching back to the 70's and 80's, to twenty-
five, thirty years ago. That's all of the concern.
Mr. McNulty. Two quick points, Senator and Mr. Chairman.
First of all, the reason why, as a former Federal prosecutor on
the front line as opposed to being Deputy Attorney General, we
have issues where this issue of statute of limitations gets a
little complicated even when everybody in the jurisdiction
thinks they know the law. And you'll charge someone, and
they'll come forward and say, ``I've got a statute of
limitations defense,'' and the government will have a different
way of reading the application of that, and it will be
litigated, the court will decide.
So, if the question is going to be resolved, it's best to
have it resolved by the court that has this expertise, rather
than trying to decipher it from the requested country as to
what the requesting country's statute of limitations are. And
in the case of the U.K., we talked about how this is dealt with
in regard to other countries. We have seen, in the recent years
in terms of the terrorist cases and some significant white
collar crime cases that there's a lot of activity here in terms
of extradition requests.
And so if there's ever a place where we would want to be
able to not create more confusion, delay and litigation over
statute of limitations arguments, it's in the relationship with
a country where we have seen criminals flee or the other
jurisdiction that we're trying to get them back from for trial.
So, I think there's an argument for it's being--and this
one in particular.
Senator Dodd. That's a good case for a prosecutor to make--
I'm a Senator, I have to vote on ratification of treaties, I
have to listen to what you're saying, but also have to listen
to what is on the other side of this. I appreciate your point.
Mr. McNulty. And finally, just on this----
Senator Dodd. Just tell me what's going on here, I don't
claim to know, but it is a mixed bag, and if we kind of lay the
concerns--as I mentioned earlier, and it doesn't complicate
your life too much--then I'd be interested in doing something
about it.
Mr. McNulty. The last point I would be able to make is they
would be able to make that statute of limitations argument when
they're in the requesting country.
The Chairman. I would concur with Senator Dodd--I think a
couple of points, just as a layperson looking at this--when is
the reaching back, a history not of terrorists in the current
era, but of Irish and British conflict, and difficulties that
have come over here. So as a practical matter, as a political
matter, this sort of thing that comes before Senators that
really has to be met, and we're trying to do that in a common
sense way. So I think Senator Dodd and I--we don't want a
reaching back for 20 years of some such situation with somebody
who is a person in the United States now feels they made some
statement with regard to Irish-American affairs or Irish-
British affairs a long time ago, and somehow he goes back for
trial.
The other point is that the Constitution still applies, and
the relevant law, Title 18, still applies. That this is not now
an arbitrary affair of the Secretary of State--this making
political, discretionary arguments to humor either Great
Britain or somebody else. And these are two practical items
that I hope we can address. And where Senator Dodd's questions
to you on the technical matters as well as these broad concerns
I'm talking about in terms on some sort of a statement of how
we feel about this, maybe we can do that. But I think the
hearing has been useful in bringing to the fore if we need to
allay concerns in these areas that is something to do about the
history of Great Britain and Ireland and the United States and
how we get to that point.
But now let me just finally say, that now the recent
history--and I don't want to dwell on this--is that a lot of
attention, as you pointed out in the British press, generated
by the high-profile extradition of three British bankers in the
Enron case, and the House of Lords and the House of Commons
debated that business. And they have brought to the fore some
issues.
Now, let me just say that among the issues--it's been
alleged, is it true that the conduct alleged in the case, that
is the Enron case--took place solely in the United Kingdom?
And, if so, how is the issue handled by the United Kingdom in
this case? Explain how the proposed treaty would address
offenses over which a party exerts extra-territorial
jurisdiction--would such offenses be extraditable and under
what circumstances, and how does dual criminality apply in such
cases?
Finally, the British case of the bankers has brought
forward quite a debate about whether the proposed treaty is
unbalanced or asymmetrical with regard to standards of evidence
applicable to extradition cases in the United States and the
United Kingdom. Can you talk about the evidentiary standards in
addition to the question of what happened in Great Britain with
regard to the Enron people, and why are they being extradited
to the United States?
Mr. McNulty. Yes, Mr. Chairman. With regard to that
particular case, I'm going to have to limit what I have to say
just because it is an ongoing matter and don't want to get into
the specific facts of what we call the Nat West case. I can,
however, tell you that this was litigated extensively in the
United Kingdom courts, and they ultimately found that there was
a sufficient nexus to U.S., I mean to the United States and
conduct committed in the United States, and that's why the
United Kingdom did extradite those individuals to the U.S. And
that they found that they would have jurisdiction to prosecute
the alleged crimes under similar circumstances. So it satisfied
the tests that exist pursuant to the 2003 treaty that has been
ratified in the United Kingdom. And they specifically had to
litigate and deal with the question of the jurisdictional issue
in the United States. So we believe that extradition was proper
and that is now proceeding forward here.
On the question you raise about the extraterritorial
jurisdiction. This provides for extraterritorial jurisdiction
and it works in such a way that the requested country would
have to have jurisdiction over the matter according to its
laws, just as the requesting country would have jurisdiction
over the matter.
So, for example, suppose an individual was kidnapped in a
third country, and U.S. law covers that conduct, and there is a
basis for jurisdiction over the kidnapping, and bringing those
individuals back to the United States for prosecution. So long
as the United Kingdom which would allow for the prosecution of
an individual who kidnapped a British citizen in the third
country, and to bring that person back to the U.K. for
prosecution, then it would meet the standard in this treaty
with regard to extraterritorial jurisdiction.
As a general matter, the United States exercises, I mean,
excuse me, the United Kingdom exercises a somewhat less
expansive extraterritorial jurisdiction than the United States
and we're not aware of any particular offenses for which there
is extraterritorial application under the law of the United
Kingdom, but not under the United States law.
And I think your third question was in the are of the
larger issue of balance or asymmetrical--the issue that is, in
some ways, being addressed right now in the United Kingdom. I
defer to the State Department on that issue.
Mr. Witten. Thank you, Mr. Chairman.
I think the best way to think about the claims of imbalance
are to take the chronology of prior to the 2003 U.K. law there
was an imbalance in favor of the United Kingdom. They had to
show probable cause for purposes of arrest and extradition, we
had to show the higher prima facie standard, and Mr. McNulty
has outlined in the case, I think, of a computer crime case.
What that meant in practice for him as a prosecutor--much more
substantial evidence, much more difficult to make the case.
In 2003 we signed this treaty--the British Government in
that year effective, I think, the first part of 2004 gave us a
favored status in that, even though the treaty had not yet
entered into force on this aspect of the treaty--obviously not
the whole treaty, but this aspect of the treaty we had, we were
able to benefit from a standard that is substantially similar
to the probable cause. And the recent debate in the United
Kingdom on imbalance, as I understand it, and I haven't seen
all of the transcripts of what has been said by particular
parliamentarians, but I believe the concern is that the British
Government--after the 2003 law, was enacted and made a choice,
they didn't have to--under their law--give us this preferred
status to have the lower evidentiary standard from prima facie,
but they chose to and the government defended it on the grounds
that the new treaty could be enforced and there would be parity
under the treaty. So the claims, I think a lot of the
complaints in the U.K. aren't so much about the substance of
the treaty, but the fact that we haven't brought the treaty
into force, and they chose as a matter of discretion, to give
us the benefit.
The Chairman. Thank you very much, Senator Dodd, do you
have any further comment?
Senator Dodd. I would just thank our witnesses and thank
the earlier panel. I'm sorry Professor Boyle could not make it
in, I guess there was a flight problem, but I thought the
Chairman handled it well by raising the issues raised in his
testimony with the witnesses. I might suggest, Mr. Chairman,
this has taken a long time here, and I'm very grateful to you
for doing this. I know there's some interest on the panel, we
might leave the record open for some additional questions for a
few days so that we can have a complete, the fullness of the
record. I know we're going to give some response to issues that
I've raised, which will be helpful as well, so if we could at
least avoid, for a few days, moving on the committee until
we've had a chance to respond to that, I think we'd all have a
chance to respond to that, I think we would all be appreciative
of that.
The Chairman. Let us keep the record open for the coming
week, that is through business on next Friday, for additional
questions and answers, to try to perfect and complete our
record. Yes, Mr. Witten?
Mr. Witten. Senator, Mr. Chairman, I just wanted to make a
very brief comment. In the earlier panel there was some
discussion of the word ``self-executing'' and Title 18 and how
it all fit together. I think in the end it became a little
clearer, it's complicated, the relationship with the treaty and
Title 18, but let me just clarify that the Title 18 provisions
on extradition are very generally worded. They have a series of
provisions and identify the role of the courts. What our
treaties do is fill in, by explaining what crimes are covered,
and procedures and what documents are to be submitted and so
forth. And the word ``self-executing'' came in--it's a term
that has various meanings, but because of the way our
extradition act is in Title 18, we do view these treaties as
self-executing--in other words, no additional act by the two
houses of Congress would have to take place for this as in any
other treaty. It in itself is the overlay that would go on the
Title 18 section 3181 and subsequent provisions.
The Chairman. That's a good point. And my point in raising
this, and I think Senator Dodd's, is that we wanted to educate
ourselves and maybe our colleagues and the public as to how our
extradition policy works. Many of us, prior to getting into
these treaties, were not aware of Title 18 and all that that
provides, and we come to this committee with a treaty,
obviously there's a context of American law, and our
constitution that is important, and we've been sort of filling
in the blanks of our own understanding, and hopefully helping
others to do that, too.
But your point is well-taken and we appreciate very much
your testimony--both of you, and so saying, the hearing is
adjourned.
[Whereupon, at 1:12 p.m. the hearing was adjourned]
A P P E N D I X E S
----------
Appendix I: Responses to Additional Questions Submitted for the Record
by Members of the Committee
Questions for the Record Submitted to Deputy Attorney General Paul J.
McNulty and Deputy Legal Adviser Samuel Witten by Chairman Lugar
Question. Why is the administration urging Senate approval of the
U.S.-U.K. Extradition Treaty now? Is it because of political pressure
from the United Kingdom?
Answer. Entry into force of this treaty is a priority for the
administration because the treaty offers significant benefits to the
United States and not because of political pressure from the Government
of the United Kingdom. The arrests last week by the United Kingdom of
more than twenty persons allegedly planning coordinated in-flight
bombings of multiple passenger aircraft en route to the U.S. illustrate
the critical nature of our law enforcement partnership and the
importance of having a modern extradition relationship with the United
Kingdom that incorporates the same strengths as our other modern
treaties with so many other partners abroad.
The treaty will provide a full array of measures designed to combat
crime with international implications, including terrorism, narcotics
trafficking, and serious organized crime. Benefits of the new treaty
include a lower standard of proof for the U.S. Government's extradition
requests to the United Kingdom, dual criminality, temporary surrender
of fugitives for trial in U.S. courts, a new ability to submit
provisional arrest requests directly between the Department of Justice
and the relevant authority in the United Kingdom, and a clear ability
for the United States to seek a waiver of the rule of specialty in
appropriate cases.
The United States seeks these types of provisions in all of our
modern extradition treaties precisely because they enhance U.S. law
enforcement efforts. We have comparable modern provisions in most of
our major extradition relationships, and it is anomalous that we do not
benefit from such a modern treaty with our close ally the United
Kingdom.
The administration witnesses noted in their testimony to the
committee some recent political developments in the United Kingdom that
relate to extradition of fugitives to the U.S. from the United Kingdom.
Specifically, a majority in the House of Lords reacted to the delay in
U.S. approval of this treaty by voting on July 12 to rescind certain
benefits the United Kingdom had provided to the United States in
advance of our ratification on the assumption that we would approve the
treaty promptly. If the United Kingdom were to remove the preferential
designation that the United States currently has under U.K. law, the
United States would once again have to meet the more onerous prima
facie evidentiary standard in our extradition requests to the United
Kingdom. Such a change would impede our ability to obtain fugitives
wanted for serious offenses in the United States.
The administration witnesses also described increasing public
criticism in the United Kingdom regarding the absence of U.S.
ratification because our inaction is now threatening what is perhaps
the strongest international partnership of the United States on law
enforcement issues at a time when transnational criminal threats are on
the rise throughout the world. Through inaction on updating this basic
tool of international law enforcement cooperation, the United States
runs the risk of weakening this steadfast partnership by failing to
ratify an important, and frankly typical, modern treaty on extradition.
Our good faith as an ally has been called into question on the basis of
misinformed fears and misleading assertions. Thus, the administration
urges Senate approval of the treaty because of its substantive benefits
to the United States, and the administration urges the Senate to act
now because the situation in the United Kingdom, and the world, counsel
against further delay.
Question. Critics of the proposed treaty have asserted that it
would allow the United Kingdom to obtain extradition of persons from
the United States for publicly speaking in opposition to British policy
in Northern Ireland. How does the proposed treaty ensure that the
United States would not extradite individuals to the United Kingdom for
political speech? Please be specific, and include descriptions of any
relevant treaty provisions.
Answer. Several provisions in the treaty would preclude extradition
where the conduct for which extradition is sought constitutes political
speech.
First, Article 2 of the treaty contains a standard ``dual
criminality'' clause, which provides that offenses are extraditable
only if the conduct on which they are based is punishable in both
States by imprisonment for a period of at least one year. In the United
States, conduct protected as political speech by the First Amendment to
the U.S. Constitution cannot be criminalized, and, as a result, there
would be no dual criminality and the United States could not extradite
someone to the United Kingdom on the basis of such conduct.
Second, political speech would also be protected as a political
offense under Article 4 of the treaty. Extradition could not be granted
if the conduct for which extradition was sought consisted of non-
violent political speech. Under both the current and the proposed
extradition treaty, U.S. federal courts are responsible for enforcing
this mandatory bar to extradition.
Finally, even if the dual criminality standard were met, and the
conduct for which extradition was sought did not constitute a political
offense under the treaty, the Secretary of State would have the ability
to refuse to surrender the individual if she determined that a
particular request for extradition were politically motivated. Although
the Supplementary Treaty of 1985 provided that courts would make this
determination in some cases, Article 3(b) of that treaty specified that
judicial review could be invoked only in cases involving certain
violent offenses, such as murder, kidnapping, and offenses involving
the use of a bomb. Thus, any assertion of political motivation with
respect to an offense involving political speech, which by definition
is a non-violent activity, would be determined by the Secretary of
State under the proposed treaty in the same manner as it would be under
the current 1972 treaty and 1985 Supplementary Treaty.
In sum, the proposed treaty's dual criminality requirement provides
complete protection from extradition for political speech that is
protected by the First Amendment. Moreover, even if we assume for the
sake of argument that there could be a case involving protected
political speech that passed the dual criminality requirement, the
political offense bar to extradition would apply. The executive
branch's discretionary power to refuse surrender in cases where a
request is politically motivated supplies additional protection for
other crimes.
Question. During the committee hearing on July 21, 2006, certain
witnesses expressed concern regarding the lack of an explicit reference
in the proposed treaty to the role of the judiciary. Please explain in
detail the functions that the judiciary would perform under the
proposed treaty in determining whether individuals may be extradited,
as well as the legal basis for this role.
Answer. The treaty will not alter longstanding U.S. law, including
the provisions of Title 18, Chapter 209 of the U.S. Code relating to
extradition (18 U.S.C. Sec. Sec. 3181 et seq.), which provide for
judicial determinations at successive steps in the extradition process:
Arrest: A judge must determine whether there is a sufficient
basis to issue a warrant for the arrest of the person sought
for extradition.
Bail: The person sought may apply to the court for release
pending the extradition hearing. It is for the judge to
determine whether release is appropriate under U.S. law and the
circumstances of the case, and if so what conditions of release
may be appropriate.
The extradition hearing: The extradition hearing is before a
judge, who must, in order to find the person extraditable,
determine that there is probable cause to believe the crime for
which extradition is sought has been committed and that the
person sought committed that crime; that the offense is one for
which extradition is provided under the treaty; that the
conduct charged would also constitute an offense in the United
States (dual criminality); and that, if raised by the fugitive,
there is no defense to extradition under the applicable treaty.
If the judge so finds, then he or she ``certifies'' that the
person is extraditable. While the final decision to surrender a
fugitive rests with the Secretary of State, such a judicial
certification of extraditability is required before the
Secretary may act to surrender the fugitive.
Review of the finding of extraditability: If the person
sought has been found extraditable by the judge at the
extradition hearing, he or she may seek judicial review of that
decision in the District Court through habeas corpus
proceedings. If the District Court denies the habeas petition,
then the person sought may seek further judicial review by
appealing the decision of the District Court.
Question. Would the proposed treaty be subject to the U.S.
Constitution? Would the proposed treaty alter the U.S. legal
requirement, set forth in 18 U.S.C. Sec. 3184, of a judicial hearing to
determine extraditability?
Answer. As is the case with any treaty, the proposed treaty with
the United Kingdom is subject to the U.S. Constitution. In the U.S.
domestic system, the U.S. Constitution takes precedence over treaties,
as it does over statutes. Thus, a treaty cannot authorize an action
that would violate the U.S. Constitution.
The legal requirement set forth in 18 U.S.C. Sec. 3184 of a
judicial hearing to determine extraditability is not altered by the
proposed treaty.
Question. Article 18 of the proposed treaty, regarding the rule of
specialty, differs from the treatment of the rule of specialty in
Article XII of the existing U.S.-U.K. extradition treaty. How is the
new article beneficial to the United States?
Answer. By expressly allowing a waiver of the rule of specialty in
Article 18, the proposed treaty provides the United States a treaty
basis on which to request that the United Kingdom waive the rule of
specialty in appropriate cases. The United States might seek waiver,
for example, in cases where it learned after extradition of additional
conduct that is subject to U.S. criminal laws and sought to try the
extradited individual for those additional offenses. Because the United
States is already prepared to waive the rule of specialty in
appropriate cases upon requests from our treaty partners under our
standard practice, this change would benefit the United States.
Question. Please clarify the testimony provided by Mr. McNulty at
the hearing on July 21, 2006, regarding the treatment under the
proposed treaty of crimes for which there is extraterritorial
jurisdiction.
Answer. The proposed treaty permits a two-pronged approach with
respect to offenses that are applied extraterritorially. As with all
offenses, there must first be a finding of dual criminality. Thus, for
example, in the case of an offense involving kidnapping, the
requirement of dual criminality would be fulfilled since the law of
both the United States and the United Kingdom punish kidnapping as a
serious criminal offense. If, however, the kidnapping has occurred
outside the territory of the Requesting State, then there can be a
further inquiry as to whether the Requested State would be able to
exercise extraterritorial jurisdiction in similar circumstances. The
United States and the United Kingdom approach this issue differently
and the language of Article 2, paragraph 4, is specifically intended to
accommodate the different approaches.
Where the United Kingdom is the requested state, i.e., the State
considering an extradition request from the United States, current U.K.
extradition law requires, with respect to extraterritorial offenses,
that in addition to a finding of dual criminality there also be a
finding that U.K. law would permit an exercise of extraterritorial
jurisdiction in similar circumstances. In our experience, the United
Kingdom is among the limited number of countries that require this
additional finding with respect to extraterritorial jurisdiction.
(Another is Israel, and a similar provision regarding extraterritorial
jurisdiction is set out in the 1962 U.S.-Israel extradition treaty;
this provision is unchanged by the Protocol to that treaty that was
recently approved by the Foreign Relations Committee.)
The majority of countries, including the United States, do not
require such a finding of duality of jurisdiction with respect to
extraterritorial. offenses. Thus, for the United States, if the United
Kingdom were to seek extradition for an offense committed outside its
territory for which the United States would not be able to exercise
extraterritorial jurisdiction, the United States would have the
discretion to deny extradition, but it would not be required to do so.
We note, however, that as a general matter, the current approach of
U.S. and U.K. criminal law to extraterritorial jurisdiction is similar
and remains relatively more restrictive than that of countries with a
civil law tradition.
__________
Questions for the Record Submitted to Deputy Attorney General Paul J.
McNulty and Deputy Legal Advisor Samuel Witten by Senator Biden
Question. Your testimony today referenced the case of Abu Hamza. In
what district has he been charged, and what are the precise charges in
the indictment? Have extradition proceedings commenced in the United
Kingdom, and what is the current status of the case?
Answer. Mustafa Kamel Mustafa, also known as Abu Hamza, is wanted
in the Southern District of New York on various charges including (1)
conspiring to take sixteen hostages in Yemen in 1998; (2) conspiring to
create a jihad training camp in Oregon; and (3) conspiring to send one
of his supporters to Afghanistan to engage in violent jihad training
and fighting.
Specifically, Hamza is charged as follows:
Count One: Conspiracy to take hostages (the attack in Yemen),
in violation of Title 18, United States Code, Section 1203;
Count Two: Hostage-Taking (the attack in Yemen), in violation
of Title 18, United States Code, Sections 1203 and 2; Count
Three: Conspiracy to provide and conceal material support and
resources to terrorists (the Bly, Oregon Jihad Training Camp),
in violation of Title 18, United States Code, Section 371;
Count Four: Providing and concealing material support and
resources to terrorists (the Bly, Oregon Jihad Training Camp),
in violation of Title 18, United States Code, Sections 2339A
and 2; Count Five: Conspiracy to provide material support and
resources to a foreign terrorist organization (the Bly, Oregon
Jihad Training Camp), in violation of Title 18, United States
Code, Section 2339B(a)(1); Count Six: Providing material
support and resources to a foreign terrorist organization (the
Bly, Oregon Jihad Training Camp), in violation of Title 18,
United States Code, Sections 2339B(a)(1) and 2; Count Seven:
Conspiracy to provide and conceal material support and
resources to terrorists (facilitating violent jihad in
Afghanistan), in violation of Title 18, United States Code,
Section 2339A; Count Eight: Providing and concealing material
support and resources to terrorists (facilitating violent jihad
in Afghanistan), in violation of Title 18, United States Code,
Sections 2339A and 2; Count Nine: Conspiracy to provide
material support and resources to a foreign terrorist
organization (facilitating violent jihad in Afghanistan) in
violation of Title 18, United States Code, Section 2339B(a)(1);
Count Ten: Providing material support and resources to a
foreign terrorist organization (facilitating violent jihad in
Afghanistan), in violation of Title 18, United States Code,
Sections 2339B(a)(1) and 2; Count Eleven: Conspiracy to supply
goods and services to the Taliban (IEEPA violations), in
violation of Title 18, United States Code, Section 371; Title
50, United States Code, Section 1705(b); and Title 31, Code of
Federal Regulations, Sections 545.204 and 545.206(b).
In 2004, the United States sought Abu Hamza's extradition but, just
before the extradition hearing date, the United Kingdom brought
domestic criminal charges against Abu Hamza. He has been found guilty
in the United Kingdom of offenses relating to incitement to commit
terrorist acts and sentenced to seven years in prison. Abu Hamza is
appealing his conviction, and the appeal in his case has been scheduled
for October 2006. The extradition process has been placed on hold,
pursuant to U.K. law, until the domestic case has concluded. Under the
current treaty, Abu Hamza cannot be extradited, even temporarily, to
the United States until he has completed his U.K. sentence.
Question. Mr. Witten discussed the case of Berenguer v. Vance, 473
F. Supp. 1195 (M.D. Pa 1979), with regard to the rule of specialty.
Please elaborate on how this case is applied by the Department of State
in reviewing requests to waive the rule of specialty.
Answer. In Berenguer v. Vance, 473 F. Supp. 1195, 1197 (D.D.C.
1979), the U.S. District Court for the District of Columbia upheld the
power of the U.S. executive branch to consent, without a subsequent
judicial hearing, to the prosecution of an extradited individual for a
crime other than that for which he was surrendered. The court noted
that the rule of specialty is not a right of the defendant, but rather
a privilege of the requested state by which its interests are
protected. Id. at 1197.
Generally, the factors to be taken into account in evaluating a
request from a treaty partner to waive the rule of specialty are
whether the failure to include an offense in the original extradition
request is justified because it was not previously possible to do so
for legal or practical reasons, and whether there is sufficient
evidence to meet the probable cause standard regarding the offense for
which the request is made. If the request fails to meet these criteria,
the request is denied.
Question. Please provide data on the number of pending extradition
requests submitted by each party under the current extradition treaty.
Answer. a. There are approximately 33 pending U.S. extradition
requests to the United Kingdom. (This does not include cases where the
U.S. has made a request but the fugitive could not be located.) Three
of these cases have been deferred pending the disposition of U.K.
charges and/or the completion of a U.K. sentence.
b. There are approximately 6 pending U.K. extradition requests to
the United States. (This does not include cases where the U.K. has made
a request but the fugitive could not be located.) Of the 6 cases, 3 are
not yet the subject of judicial proceedings in the United States and 3
are for fugitives who are in custody pending disposition of U.S.
charges and/or the completion of a U.S. sentence.
c. A general breakdown of pending U.S. extradition requests to the
United Kingdom by types of crimes, together with their approximate
numbers, is as follows:
Fraud, theft, and tax offenses: 14
Terrorism, homicides, and robberies: 13
Narcotics offenses: 4
Sex offenses: 2
Question. Please update your answer to question 16 submitted after
the November 2005 hearing with regard to waivers of the rule of
specialty. That is, at that time there were 8 cases pending. How many
of them have since been resolved? How many were granted and how many
were denied? How many new requests have been submitted to the
Department?
Answer. Since our response to question 16 after the November 2005
hearing, the United States has received 5 requests for waiver of the
rule of specialty. These 5, and the 8 requests noted in our prior
response, remain pending. Thus, from 1991 to the present, the
Department of State has received 35 requests for waiver of the rule of
specialty. Of these, 17 were granted, 5 were denied, and 13 are
pending.
Question. In the United Kingdom, Part 10 of the Criminal Justice
Act 2003 provides for retrial in some cases where there has been an
acquittal. Article 5(1) of the proposed treaty bars extradition where
the person sought has been convicted or acquitted in the Requested
State for the offense for which extradition is requested. Paragraph 2
of Article 5 permits the requested state to refuse extradition when the
person sought has been convicted or acquitted in a third state in
respect of the conduct for which extradition is requested. But there is
no provision that addresses the possibility of a case in which the
person sought for extradition has been acquitted in the requesting
state of the same offense.
a. Why is there not such a provision?
b. If a person is [sic] sought for extradition by the United
Kingdom has been acquitted, and such a person is being sought
for retrial pursuant to Part 10 of the Criminal Justice Act
2003, would the United States be justified in denying
extradition? What treaty or other basis would there be to do
so?
Answer. a. All of our modern extradition treaties contain
provisions comparable to Article 5(1) of the proposed U.S.-U.K.
extradition treaty, which bars extradition if the person has been
convicted or acquitted in the requested state. The issue of whether a
person sought for extradition has a valid defense to criminal
prosecution based on a prior conviction or acquittal in the requesting
state is appropriately adjudicated in the courts of that state.
Generally, U.S. extradition courts do not inquire into questions of
application and propriety of foreign procedural laws and rights or
require that they comport with our own. This is true even with respect
to procedural guarantees, such as our double jeopardy rules. See Neely
v. Henkel, 180 U.S. 109 (1901). Moreover, it would be both difficult
and inappropriate to strictly apply U.S. law regarding double jeopardy
in the extradition context because there is considerable variation
among nations in how and when double jeopardy concepts may apply. For
example, while U.S. double jeopardy concepts bar the government from
appealing a judgment of acquittal, such appeals by the prosecution are
in fact quite common abroad, particularly among countries with a civil
law tradition. See, e.g., Sidali v. Immigration & Naturalization
Service, 107 F.3d 191 (3d Cir. 1997). Thus, U.S. courts have held that
even where foreign procedures would have violated our double jeopardy
bar had they occurred in the context of a U.S. criminal prosecution,
this was not a basis for denying extradition. U.S. ex rel. Bloomfield
v. Gengler, 507 F.2d 925, 927-28 (2d Cir. 1974) (affirming extradition
to Canada where Canadian trial court had dismissed charges against
defendants after presentation of all evidence, but prosecution appealed
and appellate court entered judgment of conviction).
Thus, neither the terms of the proposed treaty or any other U.S.
extradition treaty, nor U.S. caselaw, would per se bar extradition
because procedures in the U.K. (or other foreign state) would not
comport with U.S. double jeopardy requirements. On the other hand, a
fugitive may always raise for consideration by the Secretary of State a
significant concern about improper motivation for the extradition
request or fundamental unfairness in the criminal procedures he may
face.
The treaty, of course, in no way eliminates or alters in any way a
defendant's ability to raise the defense of a prior prosecution or
acquittal in the courts of the requesting state after he or she has
been extradited.
b. The United States has not received an extradition request from
the United Kingdom for a person who has been acquitted but is being
sought for retrial pursuant to Part 10 of the Criminal Justice Act
2003. We understand that the provision has been invoked by the U.K.
only one time, in a case still pending in U.K. courts. It is difficult
to speculate on how the United States would handle such a request. In
all cases, the executive branch retains the authority, as reflected in
Title 18 of the U.S. Code and relevant federal case law, to determine
whether a fugitive who has been found extraditable by a U.S. court
should or should not be surrendered to the requesting state. The
Department of State considers the entire record of the judicial
proceedings, the documentation submitted by the requesting state, and
any arguments made by the defendant, his counsel, and other interested
parties in determining what recommendation to make to the Secretary of
State with respect to a possible extradition. As part of this
determination, the Secretary of State would also consider any claim of
fundamental unfairness regarding the criminal procedures in the state
seeking extradition.
Question. In the prior response to question # 13 (posed after the
November 2005 hearing), the executive branch discussed Article VIII(1)
and Article VII(3) of the current treaty.
In pertinent part, Article VIII(1) of the current treaty provides
that an application for provisional arrest--
shall contain a description of the person sought, an
indication of intention to request the extradition of the
person sought and a statement of the existence of a warrant of
arrest or a judgment of conviction against that person and such
further information, if any, as would be necessary to justify
the issue of a warrant of arrest had the offense been
committed, or the person sought been convicted, in the
territory of the requested party.
Article VII(3) provides that extradition shall be granted ``only if
the evidence be found sufficient according to the law of the requested
Party either to justify the committal for trial of the person sought if
the offense of which he is accused had been committed in the territory
of the requested Party . . .''
The prior response states that from the ``perspective of U.S.
practitioners, the antiquated language of these provisions is not
particularly helpful and would therefore not typically be included in a
modern extradition treaty.'' You elaborate by stating that the language
in the current treaty is confusing because the intended distinction
between the ``abbreviated'' provisional arrest request made under
urgent circumstances and the documentation normally accompanying the
formal extradition request is ``muddied by referencing standards of
proof at two stages in a domestic criminal case--arrest and committal
for trail [sic]--which are not in fact different under much of modern
U.S. criminal practice.''
a. In the view of the Department of Justice, does the Fourth
Amendment to the U.S. Constitution apply to provisional arrest
under Article VIII of the current treaty with the United
Kingdom?
b. In the view of the Department of Justice, does the Fourth
Amendment to the U.S. Constitution apply to provisional arrest
under Article 12 of the proposed treaty?
2. Do you expect that the change in the language on provisional
arrest will result in a substantive change in the practice of the
Department of Justice with regard to the type and quantum evidence it
presents to request provisional arrest warrants under the Convention?
Answer. The Department of Justice has taken the position that the
Fourth Amendment does apply in the context of the issuance of a warrant
for provisional arrest pending extradition. That principle, applicable
to requests under the current treaty with the United Kingdom, would
continue to apply under the language of the new treaty.
The Department of Justice does not anticipate any substantive
change in the type or quantum of evidence that we submit to our courts
in support of a request for issuance of a provisional arrest warrant.
__________
Questions for the Record Submitted to Deputy Attorney General Paul J.
McNulty and Deputy Legal Advisor Samuel Witten by Senator Dodd
Article 2(4)--How is it Consistent with Dual Criminality?
Question. Article 2(4) grants discretion to the United States and
the U.K. to approve extraditions for offenses committed outside the
territory of the requesting state in third countries under certain
circumstances, even if the laws of the requested state do not provide
for the punishment of such conduct committed outside of its territory
in similar circumstances.
How does this provision comply with the dual criminality
requirement in paragraph 1 of Article 2?
Answer. The principle of dual criminality requires that both States
would view the conduct at issue as a criminal offense; it does not
require that both States would exercise jurisdiction over that offense
in exactly the same circumstances. For the United States and most other
countries, there is no requirement in the extradition context of a
finding, in addition to a finding of dual criminality, of equivalence
of extraterritorial jurisdiction. Thus, provisions such as Article 2(4)
do not appear at all in many extradition treaties. However, the United
Kingdom and some other countries do condition extradition not only on a
finding of dual criminality but also, with respect to extraterritorial
offenses, on a finding that the United Kingdom could also have
exercised jurisdiction in similar circumstances.
To accommodate this difference, Article 2(4) gives the Requested
State the discretion to deny a request for extradition where it would
not have had similar authority to exercise extraterritorial
jurisdiction. (Israel's extradition law is similar to the United
Kingdom's in this respect, and a similar provision can be found in
Article III of the 1962 U.S.-Israel extradition treaty, which is
unchanged by the Protocol recently approved by the Foreign Relations
Committee.)
Thus, Article 2(4) addresses a jurisdictional issue that may be
considered pursuant to the extradition law of the United Kingdom,
whereas Article 2(1) addresses dual criminality, i.e., the criminal
nature of the conduct itself.
Article 3 of the Supplementary Treaty
Question. Article 3 of the 1985 Supplementary Treaty provided for
judicial review of the political motivation question. Many senators on
this committee worked together--at that time, also under the
Chairmanship of Senator Lugar--to draft this provision.
I understand it has been used in only three cases involving five
fugitives.
I realize it was an unusual provision, but the supplementary treaty
was itself unusual. And I am just a little bit surprised that you chose
to dispense with this provision in the new treaty without having
bothered to consult closely with this committee before you did so.
a. When was the last time that the provision was invoked?
b. In the last five years, you have indicated to us that
there were 33 requests from the U.K. to the United States. Was
the Article 3 claim made in any of these cases?
c. So what is the problem that you were trying to solve?
Answer. a. The provision was last invoked by Terence Damien Kirby,
who was arrested in the United States in 1994. His case was
consolidated with two previously arrested defendants who also invoked
this provision, Kevin John Artt and Pol Brennan.
b. The Article 3 claim was not raised in any cases where a
fugitive's extradition was sought by the United Kingdom from the United
States in the last five years.
c. In U.S. practice, questions of ``political motivation'' and
questions regarding motivation based on similarly improper bases such
as race or religion are determined by the Secretary of State. This
responsibility of the Secretary of State has been recognized by U.S.
courts in the longstanding ``Rule of Non-Inquiry,'' whereby courts
defer to the Secretary in evaluating the motivation of the foreign
government. This principle recognizes that among the three branches of
the U.S. Government, the Executive branch is best equipped to evaluate
the motivation of a foreign government in seeking the extradition of an
individual. The U.S. Government's extradition treaties reflect the fact
that the U.S. Secretary of State appropriately makes this judgment, and
not the U.S. courts.
Indeed, until 1985, the issue of motivation of the Government of
the United Kingdom in making an extradition request of the United
States was treated the same as in all of our other extradition
relationships--the courts played no role in reviewing this issue. In
1985, however, as part of an amendment of other aspects of the U.K.
extradition relationship, the U.S. Senate developed what became Article
3(a) of the 1972 U.S.-U.K. Extradition Treaty, as amended by the 1985
Supplementary Treaty, which states that extradition ``shall not occur
if the person sought establishes to the satisfaction of the competent
judicial authority by a preponderance of the evidence that the request
for extradition has in fact been made with a view to try or punish him
on account of his race, religion, nationality, or political opinions,
or that he would, if surrendered, be prejudiced at his trial or
punished, detained or restricted in his personal liberty by reason of
his race, religion, nationality or political opinions.'' This text was
added pursuant to the Senate's Resolution regarding advice and consent
to the 1985 Supplementary Treaty. Since that time, the Senate has
approved thirty new extradition treaties or protocols to existing
extradition treaties, but none has included a provision similar to
Article 3 of the 1985 Supplementary Treaty with the United Kingdom.
This anomalous treaty provision has led to long, difficult, and
inconclusive litigation, where U.S. courts were thrust into the
unfamiliar and inappropriate position of addressing the motivation of a
foreign government. The provision for judicial review of political
motivation claims has been invoked in five cases, all dating from the
early 1990s. The first involved Curtis Andrew Howard, who claimed he
would be prejudiced in legal proceedings in the United Kingdom because
of his race. He was extradited in 1993. The other four cases involved
persons of Irish Catholic background who were convicted of crimes of
violence in Northern Ireland, and who escaped from prison in Northern
Ireland in 1983 and fled to the United States.
The first of these cases involved James Joseph Smyth, who had been
convicted of the attempted murder of a prison guard. More than 40
witnesses were heard at his extradition hearing, and a 5-week
evidentiary hearing was held. (Ultimately, the record in the case
exceeded 3,000 pages.) In 1996, Smyth was finally extradited from the
United States to the United Kingdom. He was subsequently released from
prison in 1998 pursuant to an accelerated release law, the Northern
Ireland (Sentences) Act 1998, that grew out of the Belfast Agreement.
The next three cases involved defendants Kevin John Artt, Terence
Damien Kirby, and Pol Brennan, who were arrested separately in the
United States between 1992 and 1994. Their extradition cases were
consolidated for consideration by U.S. courts. All had been convicted
in the U.K. judicial system and sentenced to terms of imprisonment.
Artt was convicted of murdering a prison official; Kirby was convicted
of offenses of possession of explosives and a submachine gun, false
imprisonment, assault, and felony murder arising out of two separate
incidents; Brennan was convicted of possession of explosives. There was
extensive litigation and testimony in U.S. District Court regarding
their claims of prejudice under Article 3 of the 1985 Supplementary
Treaty and numerous appeals.
This litigation was and is unprecedented, as U.S. courts were put
in the difficult position of evaluating defendants' claims of
generalized, systemic bias within a foreign system of justice. In 2000,
the United Kingdom withdrew its request for extradition, consistent
with its announcement that it would not be seeking the extradition of
persons convicted of offenses committed before 1998 who, if they
returned to Northern Ireland and made a successful application under
the 1998 early release law, would have little if any of their time left
to serve.
The extraordinary litigation generated by Article 3 demonstrated
the difficulty presented to our courts in adjudicating allegations of
improper motivation or prejudice by the government requesting
extradition. Moreover, the other key aspect of the 1985 Supplementary
Treaty, excluding serious crimes of violence from being considered
protected ``political offenses,'' was at that time a novel provision
for a U.S. extradition treaty. It was in that setting, combined with
other circumstances of the era, that the committee considered that it
might be appropriate to shift to the judiciary review of questions of
political motivation or prejudice that had traditionally been reserved
to the Secretary of State. However, in the ensuing twenty years, years
in which international terrorism has unfortunately burgeoned as a
threat to the United States and its allies, excluding violent crimes
from consideration as protected ``political offenses'' has become
increasingly common in our bilateral extradition treaties and in
multilateral counterterrorism treaties. During the same period, the
longstanding division of responsibility between the judiciary and the
Secretary of State that applies in all our other extradition
relationships has operated well. Thus, the experience of more than two
decades demonstrates that the approach of Article 3 is neither helpful
nor necessary, and that this anomaly, unique to our extradition
relationship with the United Kingdom, one of our most important and
reliable allies and law enforcement partners, should end.
Article 4--Exceptions to the Political Offense Exception
Question. Article 4(2)(f) of the proposed treaty indicates that
possession of certain explosive devices would not be considered a
political offense. In response to an earlier question for the record to
Senator Biden, you indicated that there is no such provision in any
other extradition treaty of the United States. You further indicated
that it was designed to address the problem of an extremely narrow U.S.
judicial interpretation of the more general language of the current
U.S. treaty. But the opinion you cited in the case--the Artt case in
the 9th Circuit--was withdrawn, and the entire case was later dismissed
as moot. So the opinion that supposedly led to this provision has no
precedential effect. Why then, is this provision necessary?
Answer. In the extradition case involving Pol Brennan, the United
Kingdom sought the extradition of Brennan, who was arrested with a
companion in downtown Belfast on the early afternoon of a business day
in possession of an armed 23 pound bomb, which they intended to plant
in a shop. Brennan was subsequently convicted in the United Kingdom of
the offense of possession of explosives with intent to endanger life or
injure property, escaped from prison and was subsequently arrested in
the United States. Matter of Artt, 972 F. Supp. 1253, 1260-62 (N.D.
Cal. 1997). In the course of the U.S. extradition case against Brennan,
the Court of Appeals fro the Ninth Circuit reversed the decision of the
District Court and held that this offense did not constitute an
``offense involving the use of a bomb'' excluded from consideration as
a protected political offense under Article 1(d) of the Supplementary
Treaty. Matter of Artt, 158 F.3d 462, 471-73 (9th Cir. 1998). Although
the decision was dismissed when the U.K. withdrew its extradition
requests and it therefore cannot be cited as controlling precedent in
future cases, this result only emphasizes the fact that the argument
can be raised again in other extradition cases. The language of the new
treaty is necessary because it makes clear that such an explosive
offense is not to be considered a ``political'' offense for which
extradition is barred.
Question. To be specific, among the offenses excluded from the
political offense exception in Article 4(2)(f) ``possession of an
explosive, incendiary, or destructive device capable of endangering
life, of causing grievous bodily harm, or of causing substantial
property damage.''
i. Is simple possession of such devices a felony offense
under U.S. law? If not, why would it be an extraditable
offense?
ii. Is it your position that if the offense is a crime in any
one state of the United States, that suffices for dual
criminality?
iii. Does the individual who is being sought for extradition
have to reside in the State where the felony exists for this to
meet test?
iv. Under British law, is simple possession of a firearm the
equivalent of a felony offense?
v. Based upon Ms. Warlow's testimony, wouldn't that make
simple possession of a firearm an extraditable offense in the
United States in the case of the proposed treaty because the
dual criminality test could be met by reference to District of
Columbia law which makes possession of a firearm within the
city limits punishable by up to a year in jail?
Answer. i. There are certain offenses under U.S. law that
criminalize possession of explosives and other dangerous items,
particularly in settings where danger to public safety is heightened.
For example, it is a felony to possess an explosive in an airport (18
U.S.C. Sec. 844(g)), or to transport a hazardous material aboard a
civil aircraft (49 U.S.C. Sec. 46312). It is also a felony to possess
stolen explosives (18 U.S.C. Sec. 842(h)); to possess explosives during
the commission of another federal felony (18 U.S.C. Sec. 844(h); to
possess explosive or incendiary missiles designed to attack aircraft
(18 U.S.C. Sec. 2332(g); to possess radiological dispersal devises (18
U.S.C. Sec. 2332h); or to possess nuclear materials (18 U.S.C.
Sec. 831). Possession of explosives or similar materials may also be an
offense under the laws of individual U.S. states. See, for example,
Chapter 21, Article 37, Section 3731(a) of the Kansas criminal code,
which states that ``[c]riminal use of explosives is the possession,
manufacture or transportation of commercial explosives; chemical
compounds that form explosives; incendiary or explosive material,
liquid or solid; detonators; blasting caps; military explosive fuse
assemblies; squibs; electric match or functional improvised fuse
assemblies; or any completed explosive devices commonly known as pipe
bombs or Molotov cocktails.''
ii. Under U.S. law, courts, in assessing dual criminality, consider
whether acts are ``unlawful under federal statutes, the law of the
state where the accused is found, or the law of the preponderance of
the states.'' DeSilva v. DiLeonardi, 125 F.3d 1110, 1114 (7th Cir.
1997); see also Brauch v. Raiche, 618 F.2d 843 (1st Cir. 1980). Thus,
if the offense is not a federal offense and is a crime in only one
state, the dual criminality test can be satisfied if the fugitive is
located in that one state.
iii. The dual criminality test will be satisfied if the conduct for
which extradition is sought is a felony in the state where the fugitive
is located. Even if the conduct is not a crime in that state, the test
will also be satisfied if the conduct is a felony under either (1)
federal law or (2) the law of a preponderance of states. (See answer to
ii above.)
iv. We have been advised by the U.K. that, under Article 3(1)(a) of
the Firearms Northern Ireland Order 2004, it is an offense to possess a
firearm without a Firearms Certificate. Pursuant to Article 70 of the
2004 Order, the penalty is as follows: for someone over the age of
twenty-one, there is a minimum sentence of 5 years and an unlimited
fine, and in the case of someone under twenty-one but over sixteen,
there is a minimum sentence of 3 years and an unlimited fine.
v. As noted above, under U.S. law, there are three situations in
which the dual criminality test can be satisfied: if there is an
analogous crime under federal law, if the majority of states
criminalize the conduct, or if the conduct is criminalized in the State
where the fugitive is found. Thus, in the example given, if a fugitive
charged with simple possession of a firearm is located in the District
of Columbia, where such conduct is an offense punishable as a felony,
dual criminality can be satisfied, even if the same conduct would not
be similarly punishable under the law of a preponderance of the states.
(We note this would be the same result under all of our extradition
treaties where dual criminality is the test for whether conduct
constitutes an extraditable offense, and thus would be the result for
all of the dozens of extradition treaties approved by the U.S. Senate
in recent years.) However, if the fugitive is located in another state
that does not so criminalize simple possession of a firearm, then dual
criminality cannot be satisfied by recourse to the law of the District
of Columbia.
If the majority of states were to punish simple possession of a
firearm by imprisonment of a year or more, dual criminality would be
met even if the state where the fugitive was found did not so
criminalize firearm possession. In this regard, we understand from
information provided by the Bureau of Alcohol, Tobacco, Firearms and
Explosives, that only the District of Columbia bans simple possession
as a felony. Several other jurisdictions punish carrying a concealed
firearm without a permit or license by a maximum punishment of a year
or more of imprisonment (e.g., Delaware, Maryland, Massachusetts, New
Jersey, New York, Pennsylvania, Rhode Island, Connecticut, Nebraska,
Kansas and Iowa), but as of now they do not constitute a majority of
the states.
Thus, the law of the District of Columbia penalizing simple
possession of a firearm as a felony, which does not reflect the law in
the majority of states, can be relied on to satisfy a dual criminality
requirement only as to fugitives who are found in the District of
Columbia; it may not be imported to satisfy the dual criminality
requirement as to fugitives found in other jurisdictions.
State of Justice System in Northern Ireland
Question. The Northern Ireland Justice system is very similar to
that of England and Wales. Most lesser offenses are prosecuted by the
police. Serious crimes are prosecuted by the Director of Public
Prosecution. Jury trials are normal practice except for offences
involving terrorism. Under the Northern Ireland (Emergency Provisions)
Act of 1996, in deliberating offenses covered by Schedule One of that
Act (terrorism related offenses) judges sit alone, without juries, in
so called diplock courts.
Do provisions of the Northern Ireland (Emergency Provisions) Act of
1996 still apply with respect to individuals charged with offenses
under Schedule One of that act being denied jury trials?
Have human rights organizations criticized this practice?
Was the issue of the diplock courts a subject of U.S. court
deliberations in considering the U.K. extradition requests for Kevin
Artt, Paul Brennan and Terence Kirby which dragged on for years until
the U.K. withdrew its extradition requests in 2000?
Under the proposed treaty would it be appropriate for the U.S.
courts to look at the issue of the diplock courts in determining
whether to approve extradition or would that be the role of the
Secretary of State to make a judgment on?
Answer. We note for clarification that we have been informed by the
Government of the United Kingdom that the police do not prosecute
lesser offenses in the U.K.; all prosecutions are now conducted by the
Public Prosecution Service.
We have been advised by the Government of the United Kingdom that
the current statutory provisions underlying the ``Diplock Court''
system--the system of non jury trials for certain specified offenses--
are set out in sections 65 to 80 of the Terrorism Act of 2000 (and its
Schedule 9), which repealed the Northern Ireland (Emergency Provisions)
Act of 1996. The legislation establishes a system of non-jury trials
for a specified list of offenses, unless the Attorney General directs
that the case be tried by a jury. The system of non-jury trials arose
from concern that, with respect to certain offenses committed in
Northern Ireland, the integrity of the jury process could be seriously
undermined by risk of juror intimidation or partisanship. Although the
procedures for Diplock Courts have been modified over the years, the
courts continue to sit, now hearing around 60 cases a year. This
reflects a continuing trend away from use of the Diplock Court system:
more than 300 cases a year were heard in Diplock Courts in the mid
1980s; today, the Attorney General ``deschedules'' 85-90% of eligible
cases so that they are removed from the Diplock system. In addition,
each year, there is a review of whether there continues to be a need
for the Diplock system by both the Government and an Independent
Reviewer.
The Government of the United Kingdom has further advised us that on
August 1, 2005, the Secretary of State for Northern Ireland announced a
program of security normalization that includes a commitment to repeal
all counterterrorism legislation particular to Northern Ireland,
including the Diplock Court system, by July 31, 2007. As part of this
process and the ongoing review of the potential for juror intimidation,
the Secretary of State for Northern Ireland, on August 10th of this
year, published for ``consultation'' (what we would call public
comment) proposals for a program that would presumptively favor jury
trials, although permit a non-jury trial in specific circumstances and
pursuant to a procedure subject to judicial review, coupled with
measures to reduce the potential for juror intimidation. The
``Consultation Paper,'' which describes these proposals and solicits
comment, and provides background on the Diplock Court system over the
years, as well as the most recent report of the Independent Reviewer,
is attached for the committee's reference. We understand it is also
available on the Northern Ireland Office website (www.nio.gov.UK). \1\
---------------------------------------------------------------------------
\1\ A copy of the report has been maintained in the committee's
permanent files.
---------------------------------------------------------------------------
As to the second part of the question, we understand that the
Diplock Courts have been the subject of criticism by some human rights
organizations in the past, particularly by organizations that object to
the lack of a trial by jury.
We note that the fact that a foreign jurisdiction does not provide
for trial by jury is not a bar to extradition from the United States.
See Neely v. Henkel, 180 U.S.C. 109, 122-23 (1901). Indeed, many
foreign countries with which the United States has extradition treaties
do not have trial by jury at all, or include a limited number of ``lay
judges'' to serve with professional judges as triers of fact only with
respect to the most serious offenses.
Artt, Brennan, and Kirby were all convicted in Diplock Courts, and
we understand that Artt and Kirby, and to a lesser extent Brennan,
raised the procedures of the Diplock Court system, as well as claims
that they would suffer abuse or other forms of persecution by the
government on account of religious or political factors. A discussion
of the issues raised is set out in Matter of Artt, 158 F.3d 462 (9th
Cir. 1998).
Under the new treaty, the Secretary of State, and not U.S. courts,
would review issues about the particular court systems where a fugitive
might be tried after extradition. This would be consistent with the
current allocation of responsibility among the branches of the federal
government under longstanding U.S. law and other extradition treaties.
Thus, if, for example, a fugitive sought by the United Kingdom for
extradition were to raise concerns or questions about Diplock Courts,
these matters would be considered by the Secretary of State.
Removal of the Statute of Limitations as a Bar to Extradition
Question. The current U.S.-U.K. treaty provides, in Article
5(l)(b), that extradition shall not be granted if barred by the statute
of limitations according to the law of the ``requesting or requested
party.'' In other words, the statute of limitations of either country
would apply. The proposed treaty, in Article 6, provides that the
decision to grant extradition shall be made without regard to any
statute of limitations in either State.
I recognize that a lot of recent treaties have included this
provision, and that the statute still applies in the country where the
person will be tried. But numerous treaties approved by the Senate in
the last decade--including with such countries as France, Hungary,
Poland, and South Africa--have included some kind of provision on
statutes of limitation.
The absence of the requirement that an offense must be within the
statute of limitations of both states makes it more difficult for those
with concerns about the proposed treaty to accept the removal of a role
for the U.S. judiciary in making a determination about the political
motivations of the requesting state.
Irish Americans have expressed concerns that the removal of the
statute of limitations provision puts them in jeopardy to be prosecuted
for political acts dating back to the 1970s and 1980s when the criminal
justice system in Northern Ireland was terribly flawed and biased
against Catholics.
a. Why was the statute of limitations provision excluded
altogether? Which country sought it?
b. Tell me about the statute of limitations in the United
Kingdom, particularly under Northern Ireland law.
c. What protection exists against politically motivated
extradition requests under the proposed treaty?
d. How often does the Secretary deny a request based on
political motivation?
Answer. a. The United States sought the deletion of the provision
on statute of limitations, as we do in all of our modern extradition
treaties. We believe that the issue of whether a person sought for
extradition has a valid defense to criminal prosecution based on the
passage of time is appropriately adjudicated only in the courts of the
country seeking extradition. It is inherently difficult for the courts
of one nation to adjudicate the technical foreign law and factual
issues of when the statute of limitations in another country has been
tolled, or when relevant time frames begin and end in a foreign
jurisdiction. While not every country agrees to the preferred
formulation on this issue that is found in Article 6 of the new U.S.-
U.K. extradition treaty, obtaining this provision is a negotiating
objective for the United States and we seek it in every bilateral
negotiation. Several other treaties recently approved by the Senate and
now in force for the United States, including our extradition treaties
with Sri Lanka, Belize, and Lithuania, have a provision analogous to
the provision in Article 6 of the new U.S.-U.K. treaty.
b. We are advised that statutory limitations exist under U.K. law
and are applicable to Northern Ireland, but apply only to less serious
offenses, where complaints must be made within 6 months of when the
offense was committed. In the case of more serious offenses (such as
rape, murder, and grievous bodily harm) there is no statute of
limitations.
Notwithstanding the lack of a statute of limitations for these
serious criminal offenses, we understand there are protections under
U.K. law that could apply in a case where there was an unjustifiable
delay in prosecuting an individual. First, the U.K. Government has
advised us that the right to a fair trial under Article 6 of the
European Convention on Human Rights (to which the U.K. is a party and
the provisions of which are legally binding on the U.K.) entitles a
person charged to a fair and public trial within a reasonable time, and
that the right to a trial within a reasonable time would be implicated
where the delay was of such an order as to make it unfair that the
proceedings should continue. Second, the U.K. Government has indicated
that the more general protection against ``abuse of process'' could
apply. It is our understanding that the ``abuse of process'' protection
prevents a person from being prosecuted in circumstances where it would
be seriously unjust to do so, and that it applies both where the
defendant did not receive a fair trial and where it would be unfair for
the defendant to be tried. The latter application would include cases
where the prosecution may have manipulated or misused the process of
the court in such a way that it would be contrary to the public
interest and the integrity of the criminal justice system that a trial
should take place. Our colleagues in the United Kingdom were not aware
of any case in which there had been a delay of prosecution to which the
abuse of process principle had been applied, but indicated that this
principle could also offer a remedy were there a claim of unfairness by
the defendant of serious, unjustifiable delay by the prosecution in
bringing a case.
c. Consideration of whether a request for extradition is
politically motivated begins when it is first received by the
Department of State from the foreign government. We have found that
requests that the Department of State believes my be politically
motivated are generally also insufficient as a technical matter, for
example, the facts and evidence provided by the Requesting State do not
meet the probable cause standard, the proper documentation has not been
provided, the papers have not been appropriately certified, or the dual
criminality requirement is not met. This circumstance is not surprising
given that these types of requirements in extradition treaties are
designed, in part, to ensure a robust level of integrity in the
extradition process.
If, at any time in the extradition process prior to the signing of
the surrender warrant by the Secretary of State (or other appropriate
principal of the Department of State), the U.S. executive branch became
aware of facts or circumstances that suggested a request might be
politically motivated, the Department of State would explore that
possibility through the diplomatic channel and otherwise until fully
satisfied that the request is not politically motivated.
After a fugitive has been found extraditable and committed to the
custody of the U.S. Marshal, and all appeals in U.S. courts have been
exhausted, the Department of State reviews the record of the case as
certified by the District Court to the Secretary of State. This record
normally consists of the Magistrate's Certification of Extraditability
and Order of Commitment, any related orders or memoranda issued by the
Magistrate, all court orders issued in the course of any appellate
proceedings, the transcript of the extradition proceedings before the
Magistrate, and the documents submitted by the requesting State. In
addition, it is the Department of State's policy to accept and review
written argumentation against extradition submitted by the fugitive or
his counsel if received in time to be included with the Department's
final review of the case. Also, members of the fugitive's family or
other interested parties may make written representations, which are
usually of a humanitarian nature, on behalf of the fugitive. All are
taken into consideration by the Department of State with a view to
determining what recommendation to make to the Secretary of State with
respect to a possible extradition.
d. In recent years, the Secretary of State has not denied
extradition on the basis that the request was politically motivated. As
noted above, some requests are not processed through the U.S. court
system because they are based on summary assertions of culpability with
inadequate evidence, or for other reasons that could be indicative of
political motivation.
Double Jeopardy
Question. A recently-enacted law in the United Kingdom, the
Criminal Justice Act 2003, provides in Part 10 for retrial in certain
cases, even though there has been an acquittal. How does this comport
with U.S. standards of due process, including the double jeopardy
clause of the Fifth Amendment to the Constitution? What is your
understanding of the degree to which this provision for retrial has
been used in the United Kingdom?
Answer. In the United States, the re-prosecution of an individual
after he or she had been acquitted would be barred by the double
jeopardy clause of the Fifth Amendment. The Government of the United
Kingdom has advised us that the cited provision of the 2003 Criminal
Justice Act permitting retrial has been invoked only once. However, we
understand that that case is still pending, so there has been no
judicial decision on the use of that provision.
Generally, U.S. extradition courts do not inquire into questions of
application and propriety of foreign procedural laws and rights or
require that they comport with our own. This is true even with respect
to procedural guarantees, such as our double jeopardy rules. See Neely
v. Henkel, 180 U.S. 109 (1901). Moreover, it would be both difficult
and inappropriate to strictly apply U.S. law regarding double jeopardy
in the extradition context because there is considerable variation
among nations in how and when double jeopardy concepts may apply. For
example, while U.S. double jeopardy concepts bar the government from
appealing a judgment of acquittal, such appeals by the prosecution are
in fact quite common abroad, particularly among countries with a civil
law tradition. See, e.g., Sidali v. Immigration & Naturalization
Service, 107 F.3d 191 (3d Cir. 1997). Thus, U.S. courts have held that
even where foreign procedures would have violated our double jeopardy
bar had they occurred in the context of a U.S. criminal prosecution,
this was not a basis for denying extradition. U.S. ex rel. Bloomfield
v. Gengler, 507 F.2d 925, 927-28 (2d Cir. 1974) (affirming extradition
to Canada where Canadian trial court had dismissed charges against
defendants after presentation of all evidence, but prosecution appealed
and appellate court entered judgment of conviction).
Thus, neither the terms of the proposed treaty or any other U.S.
extradition treaty, nor U.S. caselaw, would per se bar extradition
because procedures in the U.K. (or other foreign state) would not
comport with U.S. double jeopardy requirements. On the other hand, a
fugitive may always raise for consideration by the Secretary of State a
significant concern about improper motivation for the extradition
request or fundamental unfairness in the criminal procedures he may
face.
The treaty, of course, in no way eliminates or alters in any way a
defendant's ability to raise the defense of a prior prosecution or
acquittal in the courts of the requesting state after he or she has
been extradited.
Waiver of Rule of Specialty
Question. The ``Rule of Specialty'' is time-honored provision in
extradition practice, designed to ensure that a fugitive surrendered
for one offense is not tried for other crimes, and to ensure that the
request is not used as a subterfuge.
Many recent treaties, including this one, however, allows for the
waiver of the rule if the executive of the requested state consents. I
understand from a prior answer that this is rarely done. Since 1991,
the Department of State has received 30 requests for waiver, and of
these, 17 requests were granted, 5 were denied, and 8 are still
pending.
What kinds of cases are these where the rule is waived? Do the
requests for waiver always relate to the same offense or act, or do
they sometimes involve a new offense or act?
Answer. Since our responses to the committee's questions for the
record after the November 2005 hearing, the United States has received
5 requests for waiver of the rule of specialty. Thus, from 1991 to the
present, the Department of State has received 35 requests for waiver,
and, of these, 17 were granted, 5 were denied, and 13 are pending.
When the State Department receives a request for a waiver of the
rule of specialty, it will take into consideration the following
factors in determining whether to grant the waiver: whether the failure
to include an offense in the original extradition request is justified
because it was not previously possible to do so for legal or practical
reasons, and whether there is sufficient evidence to meet the probable
cause standard regarding the offense for which the request is made. Our
experience is that in some cases the request for waiver relates to the
same offense or act, and in other cases the request may apply to a new
offense or act. In either event, the factors identified above would be
taken into account.
As an example of the kinds of cases in which waivers are sought, we
have granted a request from Germany for waiver of the rule of specialty
in a case where an individual was extradited for robbery. Based on
testimony provided in the subsequent trial, which revealed that the
defendant may have been involved in two additional, separate robberies,
Germany requested that the United States waive the rule of specialty so
that the defendant could be prosecuted for those additional crimes.
Because the German authorities did not know of the two additional
robberies until after the defendant was extradited, and because we were
satisfied that probable cause existed, we consented to waiver of the
rule of specialty.
Extradition Treaty with the European Union
Question. In a response to a prior written question, you stated
that the 2003 Extradition Treaty will be supplemented, pursuant to the
new treaty on extradition between the United States and the European
Union. One addition will involve the addition of a provision
establishing parity between a U.S. extradition request to the United
Kingdom, and a request United Kingdom [sic] for the same person made by
another EU member state pursuant to the European Arrest Warrant
mechanism.
a. Please elaborate on what this means. Does it alter the
standard for the amount of evidence the United States must
present in an extradition request to the United Kingdom?
b. Can you provide the bilateral instrument on this issue
that the United State and the United Kingdom signed on December
16, 2004? Does that treaty involve an amendment to this treaty
now before the Senate?
c. When do you expect to submit the U.S.-EU treaty to the
Senate?
Answer. a. On December 16, 2004, the United States and the United
Kingdom signed a bilateral extradition instrument that would implement
the provisions of the 2003 United States-European Union Extradition
Agreement. Article 10(2) and (3) of the U.S.-EU Agreement specifies a
procedure for an EU member state to follow if it receives competing
requests from the United States pursuant to the bilateral extradition
treaty and from an EU member state pursuant to the European Arrest
Warrant (EAW). The effect of this provision is to create parity, as a
matter of international law, between a U.S. extradition request to an
EU member state and an EAW request. Neither Article 10 nor any other
provision of the U.S.-EU Agreement would have an effect on the quantum
of evidence required to support an extradition request made under the
2003 U.S.-U.K. bilateral extradition treaty currently under
consideration by the Senate.
b. A copy of the 2004 U.S.-U.K. bilateral extradition instrument is
attached for the committee's information. The effect of the bilateral
extradition instrument would be to supplement and, in certain
instances, to amend the 2003 U.S.-U.K. bilateral extradition treaty
currently under consideration by the Senate. In addition to the
provision on competing requests described above, there would be new
provisions relating to: mode of transmission of requests for
extradition and provisional arrest; certification, authentication or
legalization requirements; channel for submission of supplementary
information; and submission of sensitive information in a request.
c. The U.S.-EU Extradition Agreement, together with bilateral
instruments with all 25 member states, is expected to be submitted to
the Senate in the near future. (The submittal of the related U.S.-EU
Mutual Legal Assistance Agreement and its implementing bilateral
instruments will occur at the same time.)
__________
Instrument as contemplated by Article 3(2) of the Agreement on
Extradition between the United States of America and the European Union
signed 25 June 2003, as to the application of the Extradition Treaty
between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
signed 31 March 2003
1. As contemplated by Article 3(2) of the Agreement on Extradition
between the United States of America and the European Union signed 25
June 2003 (hereafter ``the Extradition Agreement''), the Governments of
the United States of America and the United Kingdom of Great Britain
and Northern Ireland acknowledge that, in accordance with the
provisions of this Instrument, the Extradition Agreement is applied in
relation to the bilateral Extradition Treaty between the Government of
the United States of America and the Government of the United Kingdom
of Great Britain and Northern Ireland signed 31 March 2003 (hereafter
``the 2003 Extradition Treaty'') under the following terms:
(a) Article 5(1) of the Extradition Agreement shall be
applied as set forth in Article 8(1) and 12(4) of the Annex to
this Instrument to provide for the mode of transmission of the
extradition request and supporting documents;
(b) Article 5(2) of the Extradition Agreement shall be
applied as set forth in Article 9 of the Annex to this
Instrument to provide for the requirements concerning
certification, authentication or legalization of the
extradition request and supporting documents;
(c) Article 7(1) of the Extradition Agreement shall be
applied as set forth in Article 12(4) of the Annex to this
Instrument to provide for an alternative method for
transmission of the request for extradition and supporting
documents following provisional arrest;
(d) Article 8(2) of the Extradition Agreement shall be
applied as set. forth in Article 10(2) of the Annex to this
Instrument to provide for the channel to be used for submitting
supplementary information;
(e) Article 10 of the Extradition Agreement shall be applied
as set forth in Article 15 of the Annex to this Instrument to
provide for the decision on requests made by several States for
the extradition or surrender of the same person; and
(f) Article 14 of the Extradition Agreement shall be applied
as set forth in Article S bis of the Annex to this Instrument
to provide for consultations where the Requesting State
contemplates the submission of particularly sensitive
information in support of a request for extradition.
2. The Annex reflects the integrated text of the operative
provisions of the 2003 Extradition Treaty and the Extradition Agreement
that shall apply upon entry into force of this Instrument.
3. (a) This Instrument shall apply to the United States of America
and to Great Britain and Northern Ireland. Subject to subparagraph (b),
the application of the 2003 Extradition Treaty to the Channel Islands,
the Isle of Man, and any other territory of the United Kingdom to which
the 2003 Extradition Treaty may apply in accordance with its terms,
shall remain unaffected by the Extradition Agreement and this
Instrument.
(b) This Instrument shall not apply to any territory for whose
international relations the United Kingdom is responsible unless the
United States of America and the European Union, by exchange of
diplomatic notes duly confirmed by the United Kingdom in accordance
with Article 20(1) (b) of the Extradition Agreement, agree to extend
its application thereto. The exchange of notes shall specify the
authority in the territory responsible for the measure set forth in
Article 9 of the Annex and the channels between the United States of
America and the territory for transmissions pertaining to the
extradition process, in lieu of those designated in the Annex. Such
application may be terminated by either the United States of America or
the European Union by giving six months' written notice to the other
through the diplomatic channel, where duly confirmed between the United
States of America and the United Kingdom in accordance with Article
20(2) of the Extradition Agreement.
4. In accordance with Article 16 of the Extradition Agreement, this
Instrument shall apply to offenses committed before as well as after it
enters into force.
5. This Instrument shall not apply to requests for extradition made
prior to its entry into force.
6. (a) This Instrument shall be subject to the completion by the
United States of America and the United Kingdom of Great Britain and
Northern Ireland of their respective applicable internal procedures for
entry into force. The Governments of the United States of America and
the United Kingdom of Great Britain and Northern Ireland shall
thereupon exchange instruments indicating that such measures have been
completed. This Instrument shall enter into force an the date of entry
into force of the Extradition Agreement.
(b) In the event of termination of the Extradition Agreement, this
Instrument shall be terminated and the 2003 Extradition Treaty shall be
applied. The Governments of the United States of America and the United
Kingdom of Great Britain and Northern Ireland nevertheless may agree to
continue to apply some or all of the provisions of this Instruments
IN WITNESS WHEREOF, the undersigned, being duly authorized by their
respective Governments, have signed this Instrument.
DONE at London, in duplicate, this 16th day of December 2004.
FOR THE GOVERNMENT OF UNITED STATES OF AMERICA:
Hon. John Ashcroft, Attorney General
FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND:
Rt. Hon. David Blunket, MP, Secretary of State for the Home
Department
______
ANNEX
EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF
AMERICA AND THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND
Article 1
OBLIGATION TO EXTRADITE
The Parties agree to extradite to each other, pursuant to the
provisions of this treaty, persons sought by the authorities in the
Requesting State for trial or punishment for extraditable offenses.
Article 2
EXTRADITABLE OFFENSES
1. An offense shall be an extraditable offense if the conduct on
which the offense is based is punishable under the laws in both States
by deprivation of liberty for a period of one year or more or by a more
severe penalty.
2. An offense shall also be an extraditable offense if it consists of
an attempt or a conspiracy to commit, participation in the commission
of, aiding or abetting, counseling or procuring the commission of, or
being an accessory before or after the fact to any offense described in
paragraph 1 of this Article.
3. For the purposes of this Article, an offense shall be an
extraditable offense:
(a) whether or not the laws in the Requesting and Requested
States place the offense within the same category of offenses
or describe the offense by the same terminology; or
(b) whether or not the offense is one for which United States
federal law requires the showing of such matters as interstate
transportation, or use of the mails or of other facilities
affecting interstate or foreign commerce, such matters being
jurisdictional only.
4. If the offense has been committed outside the territory of the
Requesting State, extradition shall be granted in accordance with the
provisions of the treaty if the laws in the Requested State provide for
the punishment of such conduct committed outside its territory in
similar circumstances. If the laws in the Requested State do not
provide for the punishment of such conduct committed outside of its
territory in similar circumstances, the executive authority of the
Requested State, in its discretion, may grant extradition provided that
all other requirements of this treaty are met.
5. If extradition has been granted for an extraditable offense, it
may also be granted for any other.offense specified in the request if
the latter offense is punishable by less than one year's deprivation of
liberty, provided that all other requirements for extradition are met.
Article 3
NATIONALITY
Extradition shall not be refused based on the nationality of the
person sought.
1. Extradition shall not be granted if the offense for which
extradition is requested is a political offense.
2. For the purposes of this treaty, the following offenses shall not
be considered political offenses:
(a) an offense for which both Parties have the obligation
pursuant to a multilateral international agreement to extradite
the person sought or to submit the case to their competent
authorities for decision as to prosecution;
(b) a murder or other violent crime against the person of a
Head of State of one of the Parties, or of a member of the Head
of State's family;
(c) murder, manslaughter, malicious wounding, or inflicting
grievous bodily harm;
(d) an offense involving kidnapping, abduction, or any form
of unlawful detention, including the taking of a hostage;
(e) placing or using, or threatening the placement or use of,
an explosive, incendiary, or destructive device or firearm
capable of endangering life, of causing grievous bodily harm,
or of causing substantial property damage;
(f) possession of an explosive, incendiary, or destructive
device capable of endangering life, of causing grievous bodily
harm, or of causing substantial property damage;
(g) an attempt or a conspiracy to commit; participation in
the commission of, aiding or abetting, counseling or procuring
the commission of, or being an accessory before or after the
fact to any of the foregoing offenses.
3. Notwithstanding the terms of paragraph 2 of this Article,
extradition shall not be granted if the competent authority of the
Requested State determines that the request was politically motivated.
In the United States, the executive branch is the competent authority
for the purposes of this Article.
4. The competent authority of the Requested State may refuse
extradition for offenses under military law that are not offenses under
ordinary criminal law. In the United States, the executive branch is
the competent authority for the purposes of this Article.
Article 5
PRIOR PROSECUTION
1. Extradition shall not be granted when the person sought has been
convicted or acquitted in the Requested State for the offense for which
extradition is requested.
2. The Requested State may refuse extradition when the person sought
has been convicted or acquitted in a third state in respect of the
conduct for which extradition is requested.
3. Extradition shall not be precluded by the fact that the competent
authorities of the Requested State:
(a) have decided not to prosecute the person sought for the
acts for which extradition is requested;
(b) have decided to discontinue any criminal proceedings
which have been instituted against the person sought for those
acts; or
(c) are still investigating the person sought for the same
acts for which extradition is sought.
Article 6
STATUTE OF LIMITATIONS
The decision by the Requested State whether to grant the request
for extradition shall be made without regard to any statute of
limitations in either State.
Article 7
CAPITAL PUNISHMENT
When the offense for which extradition is sought is punishable by
death under the laws in the Requesting State and, is not punishable by
death under the laws in the Requested State, the executive authority in
the Requested State may refuse extradition unless the Requesting State
provides an assurance that the death penalty will not be imposed, or,
if imposed, will not be carried out.
Article 8
EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS
1. All requests for extradition shall be submitted through the
diplomatic channel.
2. All requests for extradition shall be supported by:
(a) as accurate a description as possible of the person
sought, together with any other information that would help to
establish identity and probable location;
(b) a statement of the facts of the offense(s);
(c) the relevant text of the law(s) describing the essential
elements of the offense for which extradition is requested;
(d) the relevant text of the law(s) prescribing punishment
for the offense for which extradition is requested; and
(e) documents, statements, or other types of information
specified in paragraphs 3 or 4 of this Article, as applicable.
3. In addition to the requirements in paragraph 2 of this Article, a
request for extradition of a person who is sought for prosecution shall
be supported by:
(a) a copy of the warrant or order of arrest issued by a
judge or other competent authority;
(b) a copy of the charging document, if any; and
(c) for requests to the United States, such information as
would provide a reasonable basis to believe that the person
sought committed the offense for which extradition is
requested.
4. In addition to the requirements in paragraph 2 of this Article, a
request for extradition relating to a person who has been convicted of
the offense for which extradition is sought shall be supported by:
(a) information that the person sought is the person to whom
the finding of guilt refers;
(b) a copy of the judgment or memorandum of conviction or, if
a copy is not, available, a statement by a judicial authority
that the person has been convicted;
(c) a copy of the sentence imposed, if the person sought has
been sentenced, and a statement establishing to what extent the
sentence has been carried out; and
(d) in the case of a person who has been convicted in
absentia, information regarding the circumstances under which
the person was voluntarily absent from the proceedings.
Article 8 bis
SENSITIVE INFORMATION IN A REQUEST
Where the Requesting State contemplates the submission of
particularly sensitive information in support of its request for
extradition, it may consult the Requested State to determine the extent
to which the information can be protected by the Requested State. If
the Requested State cannot protect the information in the manner sought
by the Requesting State, the Requesting State shall determine whether
the information shall nonetheless be submitted.
Article 9
AUTHENTICATION OF DOCUMENTS
Documents that bear the certificate or seal of the Ministry of
Justice, or Ministry or Department responsible for foreign affairs, of
the Requesting State shall be admissible in extradition proceedings in
the Requested State without further certification, authentication, or
other legalization. ``Ministry of Justice'' shall mean, for the United
States, the United States Department of Justice; and, for the United
Kingdom, the Home Office.
Article 10
ADDITIONAL INFORMATION
1. If the Requested State requires additional information to enable a
decision to be taken on the request for extradition, the Requesting
State shall respond to the request within such time as the Requested
State requires.
2. Such additional information may be requested and furnished
directly between the United States Department of Justice and the Home
Office.
Article 11
TRANSLATION
All documents submitted under this treaty by the Requesting State
shall be in English or accompanied by a translation into English.
Article 12
PROVISIONAL ARREST
1. In an urgent situation, the Requesting State may request the
provisional arest of the person sought pending presentation of the
request for extradition. A request for provisional arrest may be
transmitted through the diplomatic channel or directly between the
United States Department of Justice and such competent authority as the
United Kingdom may designate for the purposes of this Article.
2. The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a brief statement of the facts of the case including, if
possible, the date and location of the offense(s);
(d) a description of the law(s) violated;
(e) a statement of the existence of a warrant or order of
arrest or a finding of guilt or judgment of conviction against
the person sought; and
(f) a statement that the supporting documents for the person
sought will follow within the time specified in this treaty.
3. The Requesting State shall be notified without delay of the
disposition of its request for provisional arrest and the reasons for
any inability to proceed with the request.
4. A person who is provisionally arrested may be discharged from
custody upon the expiration of sixty (60) days from the date of
provisional west pursuant to this treaty if the executive authority of
the Requested State has not received the formal request for extradition
and the documents supporting the extradition request as required in
Article 8. For this purpose, receipt of the formal request for
extradition and supporting documents by the Embassy of the Requested
State in the Requesting State shall constitute receipt by the executive
authority of the Requested State.
5. The fact that the person sought has been discharged from custody
pursuant to paragraph 4 of this Article shall not prejudice the
subsequent re-arrest and extradition of that person if the extradition
request and supporting documents are delivered at a later date.
Article 13
DECISION AND SURRENDER
1. The Requested State shall promptly notify, the Requesting State of
its decision on the request for extradition. Such notification should
be transmitted directly to the competent authority designated by the
Requesting State to receive such notification and through the
diplomatic channel.
2. If the request is denied in whole or in part, the Requested State
shall provide reasons for the denial. The Requested State shall provide
copies of pertinent judicial decisions upon request.
3. If the request for extradition is granted, the authorities of the
Requesting and Requested States shall agree on the time and place for
the surrender of the person sought.
4. If the person sought is not removed from the territory of the
Requested State within the time period prescribed by the law of that
State, that person maybe discharged from custody, and the Requested
State, in its discretion, may subsequently refuse extradition for the
same offense(s).
Article 14
TEMPORARY AND DEFERRED SURRENDER
1. If the extradition request is granted for a person who is being
proceeded against or is serving a sentence in the Requested State, the
Requested State may temporarily surrender the person sought to the
Requesting State for the purpose of prosecution. If the Requested State
requests, the Requesting State shall keep the person so surrendered in
custody and shall return that person to the Requested State after the
conclusion of the proceedings against that person, in accordance with
conditions to be determined by mutual agreement of the States.
2. The Requested State may postpone the extradition proceedings
against a person who is being prosecuted or who is serving a sentence
in that State. The postponement may continue until the prosecution of
the person sought has been concluded or until such person has served
any sentence imposed.
Article 15
REQUESTS FOR EXTRADITION OR SURRENDER MADE BY SEVERAL STATES
1. If the Requested State receives requests from the Requesting State
and from any other State or States for the extradition of the same
person, either for the same offense or for different offenses, the
executive authority of the Requested State shall determine to which
State, if any, it will surrender the person.
2. If the United Kingdom receives an extradition request from the
United States and a request for surrender pursuant to the European
arrest warrant for the same person, either for the same offense or for
different offenses, its executive authority shall determine to which
State, if any, it will surrender the person.
3. In making its decision under paragraphs 1 and 2 of this Article,
the Requested State shall consider all of the relevant factors,
including, but not limited to, the following:
(a) whether the requests were made pursuant to a treaty;
(b) the places where each of the offenses was committed;
(c) the respective interests of the requesting States;
(d) the seriousness of the offenses;
(e) the nationality of the victim;
(f) the possibility of any subsequent extradition between the
requesting States; and
(g) the chronological order in which the requests were
received from the requesting States.
Article 16
SEIZURE AND SURRENDER OF PROPERTY
1. To the extent permitted under its law, the Requested State may
seize and surrender to the Requesting State all items in whatever form,
and assets, including proceeds, that are connected with the offense in
respect of which extradition is granted. The items and assets mentioned
in this Article may be surrendered even when the extradition cannot be
effected due to the death, disappearance, or escape of the person
sought.
2. The Requested State may condition the surrender of the items upon
satisfactory assurances from the Requesting State that the property
will be returned to the Requested State as soon as practicable. The
Requested State may also defer the surrender of such items if they are
needed as evidence in the Requested State.
Article 17
WAIVER OF EXTRADITION
If the person sought waives extradition and agrees to be
surrendered to the Requesting State, the Requested State may surrender
the person as expeditiously as possible without further proceedings.
Article 18
RULE OF SPECIALTY
1. A person extradited under this treaty may not be detained, tried,
or punished in the Requesting State except for:
(a) any offense for which extradition, was granted, or a
differently denominated offense based on the same facts as the
offense on which extradition was granted, provided such offense
is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the
person; or
(c) any offense for which the executive authority of the
Requested State waives the rule of specialty and thereby
consents to the person's detention, trial, or punishment. For
the purpose of this subparagraph:
(i) the executive authority of the Requested State
may require the submission of the documentation called
for in Article 8; and
(ii) the person extradited maybe detained by the
Requesting State for 90 days, or for such longer period
of time as the Requested State may authorize, while the
request for consent is being processed.
2. A person extradited under this treaty may not be the subject of
onward extradition or surrender for any offense committed prior to
extradition to the Requesting State unless the Requested State
consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the
detention, trial, or punishment of an extradited person, or the
extradition of the person to a third State, if the person:
(a) leaves the territory of the Requesting State after
extradition and voluntarily returns to it; or
(b) does not leave the territory of the Requesting State
within 20 days of the day on which that person is free to
leave.
4. If the person sought waives extradition pursuant to Article 17,
the specialty provisions in this Article shall not apply.
Article 19
1. Either State may authorize transportation through its territory of
a person surrendered to the other State by a third State or from the
other State to a third State. A request for transit shall contain a
description of the person being transported and a brief statement of
the facts of the case. A person in transit shall be detained in custody
during the period of transit.
2. Authorization is not required when air transportation is used by
one State and no landing is scheduled on the territory of the other
State. If an unscheduled landing does occur, the State in which the
unscheduled landing occurs may require a request for transit pursuant
to paragraph 1 of this Article, and it may detain the person until the
request for transit is received and the transit is effected, as long as
the request is received within 96 hours of the unscheduled landing.
Article 20
REPRESENTATION AND EXPENSES
1. The Requested State shall advise, assist, and appear on behalf of,
the Requesting State in any proceedings in the courts of the Requested
State arising out of a request for extradition or make all necessary
arrangements for the same.
2. The Requesting State shall pay all the expenses related to the
translation of extradition documents and the transportation of the
person surrendered. The Requested State shall pay all other expenses
incurred in that State in connection with the extradition proceedings.
3. Neither State shall make any pecuniary claim against the other
State arising out of the arrest, detention, examination, or surrender
of persons under this treaty.
Article 21
CONSULTATION
The Parties may consult with each other in connection with the
processing of individual cases and in furtherance of efficient
implementation of this treaty.
Article 22
TERMINATION
Either State may terminate this treaty at any time by giving
written notice to the other State through the diplomatic channel, and
the termination shall be effective six months after the date of receipt
of such notice.
______
Embassy of the United States of America
No. 120
The Embassy of the United States of America at London, England,
presents its compliments to Her Majesty's Principal Secretary of State
for Foreign and Commonwealth Affairs and has the honor to refer to the
Instrument as contemplated by Article 3(2) of the Agreement on
Extradition between the United States of America and the European Union
signed June 25, 2003, as to the application of the Extradition Treaty
between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
signed March 31, 2003 (the ``2003 Extradition Treaty'').
Having been informed by the Government of the United Kingdom of
Great Britain and Northern Ireland that it will be unable to apply
Article 5(2) of the Agreement on Extradition between the United States
of America and the European Union, as set forth in Article 9 of the
Annex to the Instrument, relating to authentication of extradition
documents, until a corresponding change is made in its domestic law
governing extradition, the Embassy has the honor to propose on behalf
of the United States Government as follows:
Article 5(2) of the Agreement can Extradition between the United
States of America and the European Union, as set forth in Article 9 of
the Annex to the Instrument, shall not be applied until the Government
of the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland indicate in a subsequent
exchange of notes that the required internal procedures have been
completed. Until that time, the parties agree to apply the procedure
for authentication of extradition documents set forth in Article 9 of
the Extradition Treaty between the Government of.the United States of
America and the Government of the United Kingdom of Great Britain and
Northern Ireland signed March 31, 2003, upon its entry into force. The
Government of the United Kingdom of Great Britain and Northern Ireland
shall undertake to seek the necessary legislation at the earliest
possible time.
The Embassy also wishes to confirm that two exchanges of letters
related to the 2003 Extradition Treaty and done simultaneous with its
signature shall remain the understandings of the Governments with
respect to this Instrument, until such time as they may agree
otherwise.
If the foregoing is acceptable to your Government, the Embassy has
the honor to propose that this Note and your Note in reply shall
constitute an agreement between our two Governments, which shall enter
into force on the date of entry into force of the Instrument.
The Embassy avails itself of the opportunity to express to Her
Majesty's Principal Secretary of State for Foreign and Commonwealth
Affairs the renewed assurance of its highest consideration.
Embassy of the United States of America,
London, England. December 16, 2004.
______
Consular Directorate of the Foreign and Commonwealth Office
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
The Consular Directorate of the Foreign and Commonwealth Office
presents its compliments to the Embassy of the United States of America
and has the honour to refer to the Embassy's Note No. 120 of 16
December 2004 which reads as follows:
``The Embassy of the United States of America at London,
England, presents its compliments to Her Majesty's Principal
Secretary of State for Foreign and Commonnwealth Affairs and
has the honour to refer to the Instrument as contemplated by
Article 3(2) of the Agreement on Extradition between the United
States of America and the European Union signed June 25, 2003,
as to the application of the Extradition Treaty between the
Government of the United States of America and the Government
of the United Kingdom of Great Britain and Northern Ireland
signed March 31, 2003 (the ``2003 Extradition Treaty'').
``Having been informed by the Government of the United
Kingdom of great Britain and Northern Ireland that it will be
unable to apply Article 5(2) of the Agreement on Extradition
between the United States of America and the European Union, as
set forth in Article 9 of the Annex to the Instrument, relating
to authentication of extradition documents, until a
corresponding change is made in, its domestic law governing
extradition, the Embassy has the honour to propose on behalf of
the United States Government as follows:
``Article 5(2) of the Agreement on Extradition between the
United States of America and the European Union, as set forth
in Article 9 of the Annex to the Instrument, shall not be
applied until the United States of America and the Government
of Great Britain and Northern Ireland indicate in a subsequent
exchange of notes that the required internal procedures have
been completed. Until that time, the parties agree to apply the
procedure for authentication of extradition documents set forth
in Article 9 of the Extradition Treaty between the Govemment of
the United States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland signed March 31,
2003, upon its entry into force. The Government of the United
Kingdom of Great Britain and Northern Ireland shall undertake
to seek the necessary legislation at the earliest possible
time.
``The Embassy also wishes to confirm that two exchanges of
letters related to the 2003 Extradition Treaty and done
simultaneous with its signature shall remain the understandings
of the Governments with respect to this Instrument, until such
time as they may agree otherwise.
``If the foregoing is acceptable to your Government, the
Embassy has the honour to propose that this Note and your Note
in reply shall constitute an agreement between our two
Governments, which shall enter into force on the date of entry
into force of the Instrument.
``The Embassy avails itself of this opportunity to express to
Her Majesty's Principal Secretary of State for Foreign and
Commonwealth Affairs the renewed assurance of its highest
consideration.''
In reply, the Foreign and Commonwealth Office has the honour to
confirm that the proposal set out in the Embassy's Note is acceptable
to the Government of the United Kingdom of Great Britain and Northern
Ireland and that the Embassy's Note, and this Reply, shall constitute
an agreement between the two Governments which shall enter into force
on the date of entry into force of the Instrument.
The Consular Directorate of the Foreign and Commonwealth Office
avails itself of this opportunity to renew to the Embassy of the United
States the assurances of its highest consideration.
London,
16 December 2004.
__________
Appendix II: Statement Submitted by Professor Francis A. Boyle
Good day. My name is Francis A. Boyle, Professor of Law at the
University of Illinois College of Law in Champaign. I have already
submitted to the members of this committee a detailed memorandum of Law
against the ratification of this proposed extradition treaty dated 4
March 2004 that I respectfully request be entered into the formal
record of these proceedings together with my written comments here
today.
The United States of America was founded by means of a declaration
of independence and a revolutionary war fought against the British
Monarchy. But under the terms of this proposed extradition treaty, our
Founding Fathers and Mothers such as John Hancock, George Washington,
Thomas Jefferson, James and Dolly Madison would be extradited to the
British Monarchy for prosecution, persecution, and execution for the
very revolutionary activities that . founded the United States of
America itself.
Because of this American legacy of revolution against British
tyranny, the U.S. has always provided a safe haven for those seeking
refuge on our shores. We have always been wary of efforts by foreign
powers to transport Americans and foreigners for prosecution abroad on
political charges. Indeed, in the Declaration of Independence, one of
the specific complaints against British tyranny made by Thomas
Jefferson himself was directed at the British outrage of ``transporting
us beyond seas to be tried for pretended offences.'' Such is the case
for this treaty.
For that reason, several episodes in the early history of our
Republic, such as that of Citizen Genet under Thomas Jefferson, laid
the foundation for the uniquely American notion of the ``political
offense exception'' to extradition. In essence, the political offense
exception holds that people in the United States will not be handed
over to foreign governments for criminal prosecution when the crime
alleged is political in nature.
The political offense exception has since become a standard part of
public international law. But the political offense exception is not
some abstract notion created by the World Court, or the United Nations,
or any other international body. It began right here in the United
States of America--``. . . the land of the free, and the home of the
brave.'' And it was created by our Founding Fathers and Mothers who
knew, from personal experience, that it was outrageously unfair for a
state to hand a person over to another state for political prosecution
and persecution. It is a bedrock principle of American justice.
This basic principle of American justice is now under assault by
means of this treaty which surely has George Washington, Thomas
Jefferson as well as James and Dolly Madison turning over in their
graves. This new treaty marks an unprecedented departure from two
centuries of American extradition practice. Although the new treaty
pays lip-service to the political offense exception, it effectively
eliminates the political offense exception for all practical purposes.
For example, the political offense exception is eliminated for any
offense allegedly involving violence or weapons, including any
solicitation, conspiracy, or attempt to commit such crimes, As we have
repeatedly seen in Chicago, Florida, and New York, inter aria.,
undercover government agents infiltrate peaceful Irish American groups,
suggest criminal activity to them, and then falsely claim that innocent
members of these groups agreed with their suggestions. That is all it
takes for a conspiracy to be extraditable under this proposed treaty.
Even worse yet, all it would take for any of the people in this
room to get extradited under this proposed treaty is a false allegation
from the British Monarchy that one of its spies overheard them say
something reckless about weapons or the armed struggle in Ireland. This
treaty is unconstitutional under the First Amendment to the United
States Constitution, which Britain does not have. Indeed, we Americans
fought a bitter revolutionary War against the British Monarchy in order
to establish our own Constitution and Bill of Rights, neither of which
Britain has.
Under the terms of this proposed treaty, it would be the
politicians and diplomats at the U.S. Department of State, not a United
States Federal judge, who would be adjudicating the First Amendment
rights of Irish American citizens, voters, and taxpayers. My 4 March
2004 memorandum to you has already identified several other
constitutional protections set forth in our American Bill of Rights
that will be violated by this proposed extradition treaty with the
British Monarchy that I will not review now but respectfully
incorporate by reference.
In addition, this proposed treaty wipes out a number of
constitutional and procedural safeguards. It eliminates any statue of
limitations, unconstitutionally eliminates the need for any showing of
probable cause, permits unconstitutional indefinite preventive
detention, applies retroactively to offenses allegedly committed before
the treaty's ratification, eliminates the time--honored Rule of
Specialty in all but name, allows for the unconstitutional seizure of
assets, and permits extradition under Article 2(4) for conduct that is
perfectly lawful in the United States. This treaty retroactively
criminalizes perfectly lawful conduct in violation of the
constitutional prohibition on Ex Post Facto laws set forth in Article
I, Section 9 of the U.S. Constitution as well as the basic principles
of public international law and human rights and jus cogens known as
nullum crimen sine lege, nulla poena sine lege--no crime without law,
no punishment without law. Under this treaty, the heirs of George
Washington could have their assets seized as proceeds of a criminal
terrorist conspiracy.
Most outrageously, responsibility for determining whether a
prosecution is politically motivated is transferred from the U.S.
Federal courts to the executive branch of government. This means that
instead of having your day in court, before a neutral Federal judge,
you will be required to rely on the not-so-tender mercies of the
Department of State, which historically has always been soundly
anglophile, pro-British, anti-Irish, and against Irish Americans and
Irish America. There are now over twenty million Irish American
citizens, voters, and taxpayers, and we all especially like to vote.
These and the several other court-stripping provisions of this proposed
treaty are unconstitutional under Article III of the United States
Constitution.
As the current U.S. Irish deportation cases show, Britain can
easily return Irish and British citizens to Britain. So why is the
British Monarchy now trying now to shift the extradition decision from
the U.S. Federal courts to the executive branch? Because you cannot
deport a U.S. citizen. A U.S. citizen has to be extradited. Article 3
of the proposed treaty makes it crystal clear that the British Monarchy
wants to target Irish American citizens for persecution in Crown
courts, which have a long history of perpetrating legal atrocities
against innocent Irish people. That is precisely why the U.S. Senate
deliberately put the so-called Rule of Inquiry by a U.S. Federal judge
into Article 3 of the 1986 Supplementary Extradition Treaty with
Britain. This proposed treaty eliminates the Senate's well-grounded
Rule of Inquiry to prevent British Crown courts mistreating Irish
people.
Furthermore, unlike Article VIIIbis of the proposed extradition
protocol with Israel, for some mysterious and unexplained reason
Article 6 of the proposed extradition treaty with the British Monarchy
eliminates any statute of limitations requirements. So citizens of
Israel get to benefit from a statute of limitations, but Irish American
citizens of the United States do not. Why this differential treatment
on behalf of foreigners and against Irish American citizens in these
two simultaneously proposed extradition treaties?
The answer to this question becomes quite clear in Article 2(2) and
Article 4(2)(g) of the proposed extradition treaty with the British
Monarchy, which renders extraditable an accessory after the fact to an
extraditable offense. Since there are no statute of limitations
requirements and the proposed treaty is retroactive, any Irish American
citizen who provided assistance to Joe Doherty would today be
extraditable under this proposed treaty as an accessory after the fact
to Mr. Doherty. In addition, such Irish American Doherty supporters
would be provisionally arrested and indefinitely detained under Article
12 of the proposed treaty. Finally, according to Article 16 of the
proposed treaty, such Irish American Doherty supporters would have
their homes, businesses, cars, and other property seized, sold and
surrendered to the British Monarchy.
That is the real agenda behind this proposed extradition treaty
with the British Monarchy: British retaliation against Irish American
citizens, voters and taxpayers because of our near universal support
for Joe Doherty and other I.R.A. soldiers who fled to the United States
of America seeking refuge from fighting their own revolution against
British tyranny in Ireland since the Proclamation of the Irish Republic
on Easter Sunday 1916. This proposed treaty has been designed by the
British Government to eviscerate, overturn, and reverse the delicately
crafted human rights compromises that were deliberately built into the
1986 Supplementary Extradition Treaty by the Senate Foreign Relations
Committee and other concerned members of the United States Senate. Will
the United States Senate and this committee permit the British Monarchy
to traduce its previous handiwork? I certainly trust not.
Next, for reasons fully explained in my 4 March 2004 memorandum to
you, if the Senate were to consent to this proposed extradition treaty,
that would effectively abrogate the most basic human rights of Irish
American citizens under the International Covenant on Civil and
Political Rights to which the United States is a contracting party.
Furthermore, such Senate consent to this proposed treaty would also
place the United States of America in breach of its solemn treaty
obligations under numerous provisions of that human rights Covenant
with respect to all the other contracting states parties. Such
violations will render the United States subject to the treaty
enforcement mechanisms of that Covenant as well as to the other
ordinary enforcement mechanisms, remedies, and sanctions for violating
a solemnly concluded international human rights treaty as well as the
basic principle of customary international law and jus cogens that
pacta suet servanda: i.e., treaties must be obeyed.
My 4 March 2004 memorandum to you established that the proposed
extradition treaty will grossly violate this solemn International Human
Rights Covenant that has received the advice and consent of 2/3rds of
the Members of the United States Senate and is thus ``the supreme Law
of the Land'' under Article VI of the United States Constitution.
Nevertheless, the two lawyers from the Departments of State and Justice
who appeared before this committee on 15 November 2005 did not even
bother to address these weighty issues of international law, U.S.
constitutional law, U.S. treaty law, and basic human rights
protections. With all due respect, this committee must uphold the
Senate's constitutional responsibilities and prerogatives under the
Treaties Clause in Article II, Section 2 of the U.S. Constitution by
demanding that both the Departments of State and Justice formally
respond in writing to my 4 March 2004 Memorandum's arguments that this
proposed extradition treaty will violate the International Covenant on
Civil and Political Rights, to which both the United States and the
United Kingdom are contracting parties.
Finally, the British Monarchy has continued to maintain a colonial
military occupation regime consisting in part of about 15,000 soldiers
in the six northeast counties of Ireland in gross violation of the
right of the Irish People to self-determination under both customary
and conventional international law, including but not limited to
Article 1(1) of the International Covenant on Civil and Political
Rights to which the Republic of Ireland, the United States, and the
British Monarchy are all contracting parties, This longstanding
instance of British criminality has been analyzed in great detail by my
article The Decolonization of Northern Ireland, 4 Asian Yearbook of
International Law 25-46 (1995), a copy of which is attached. I
respectfully request that this article be submitted into the formal
record of these proceedings.
All of the above incontestable historical facts provide proof-
positive of precisely why this proposed treaty of extradition with the
British Monarchy must be treated completely differently from any other
extradition treaty that the United States of America might have or
propose to have with any other country in the world. All of these other
so-called modern extradition treaties are historically, politically,
and legally inapposite to this proposed extradition treaty with the
British Monarchy, which obstinately continues illegally to occupy
Ireland militarily and to maintain a colony there in blatant violation
of the United Nations' seminal Decolonization Resolution of 1960.
Furthermore, this extradition treaty with the British Monarchy must
stand alone and apart from all other modern U.S. extradition treaties
precisely because we Americans fought a bitter revolutionary war
against the British Monarchy to found this Republic. We Americans did
not fight a Revolutionary war against any other state in the world. So
it is axiomatic that this proposed treaty with the British Monarchy
must be quite carefully distinguished from all of our extradition
treaties with every other country in the world--and rejected.
Conclusion
For all these reasons the Senate Foreign Relations Committee must
reject this treaty outright. There is no way this unconstitutional and
illegal treaty can be salvaged by attaching any package of amendments,
reservations, declarations, or understandings. The currently existing
bilateral and multilateral extradition treaty regime between the United
States and the British Monarchy is more than sufficient to secure the
extradition of alleged terrorists. This proposed treaty will only
secure and guarantee the persecution of Irish American Citizens,
Voters, and Taxpayers by the British Monarchy.
Thank you.