International Extradition Weekly Update

Extradition to India—Samira Jumani

Interpol has issued a red notice for Samira Jumani, who is the first wife of “underworld don” Abu Salem.^[1] Ms. Jumani is believed to be located in the United States.^[2] Abu Salem is India’s second-most wanted man, and he has more than 50 criminal cases pending against him “including the murder of music baron Gulshan Kumar in 1997, assault on filmmakers Rajeev Rai and Subhash Ghai in 1997, murder of Chembur builder Om Prakash Kukreja in 1995, murder of builder Pradeep Jain in 1994 and extortion threats to many film personalities.”^[3]

Mr. Salem was extradited from Portugal to India on November 11, 2005, and India seems to be enraptured with the case, but the coverage of it is confusing. Some papers say that he played a large role in a Mumbai serial bombing in 1993.^[4] Others say that he was “inconsequential” and that he knows nothing “substantial.”^[5] And it seems that he is not as plugged in to Mumbai’s criminal underworld as previously believed, which means that India’s Central Bureau of Investigation is taking information from Mr. Salem “with a pinch of salt.”^[6]

In any case, it is Ms. Jumani whose extradition is requested because Indian authorities believe she may be privy to secrets about the Mumbai bombing.^[7] She has a criminal history of her own, being arrested in 1997 for procuring a forged passport in 1993 from Lucknow in the name of Sabina Azmi.^[8] The red notice mentions that the offenses for which she is wanted are “Criminal conspiracy, fraud and dishonestly induced delivery of property, forgery, used forged document as genuine.”^[9]

Under the extradition treaty between India and the United States, an offense will be considered extraditable “if it is punishable under the laws in both Contracting States by deprivation of liberty…for a period of more than one year.”^[10] The offenses for which Ms. Jumani is sought are clearly crimes in both countries. It will be interesting to see how the United States treats the request if Ms. Jumani is found here. Under the Rule of Specialty, a person can be detained, tried, or punished only for “the offense for which extradition has been granted or a differently denominated offense based on the same facts on which extradition was granted, provided such offense is extraditable or is a lesser included offense.”^[11]

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[1] Interpol Alert for Salem’s Ex-Wife Samira, Rediff.com, Nov. 17, 2005, available here. See also Central Bureau of Investigation, Wanted by Interpol: Jumani Samira, Last Visited Nov. 18, 2005, available here [hereinafter Red Notice].
[2] India Seeks Extradition of Salems [sic] First Wife from US, WebIndia123.com, Nov. 17, 2005, available here.
[3] Id.
[4] See S. Balakrishnan, Salem Played it Big During Mumbai Blasts, Times of India, Nov. 16, 2005, available here.
[5] See Sheela Bhatt, Salem Inconsequential to Mumbai Blasts Case, Rediff Special, Nov. 17, 2005, available here.
[6] Anupam Dasgupta et al., Salem is Out of Sync with Mumbai’s Underworld: CBI, Daily News & Analysis, Nov. 17, 2005, available here.
[7] Salem’s Secrets: First Wife Holds the Magic Key, Times of India, Nov. 17, 2005, available here.
[8] Id.
[9] See Red Notice, supra note 1.
[10] Extradition Treaty, June 25, 1997, U.S.-India, art. 2, para. 1, S. Treaty Doc. 105-30 (1999).
[11] Id. art. 17, para. 1(a).

Fraud--Conrad Black

Almost three months to the day that two of his business associates were indicted on mail and wire fraud charges, Lord Conrad Black has himself been indicted on mail and wire fraud charges.^[1] Three other individuals—Hollinger Inc. CFO John Boultbee, Hollinger general counsel Peter Atkinson, and Hollinger corporate counsel Mark Kipnis—were also indicted, along with Ravelston, Lord Black’s former company.^[2] Mr. Boultbee and Lord Black were charged with 8 counts of mail and wire fraud, Mr. Atkinson with 6 charges of mail and wire fraud, Mr. Kipnis with 9 charges of mail and wire fraud, and Ravelston with the same 7 counts of mail and wire fraud it faces when charges were brought against it in August.^[3]

We discuss the details of the schemes involved here.

As Lord Black is currently located, it is thought, in the United Kingdom, US Attorney Patrick Fitzgerald is offering Lord Black the opportunity to turn himself in.^[4] If Lord Black does not do so, then his extradition will be requested.^[5]

The extradition request would likely be granted. The Extradition Act of 2003, which was passed in part to make it easier for the United States to obtain the extradition of terrorism suspects, has primarily been used on white-collar criminal defendants.^[6] When the new extradition treaty was drawn up, the negotiators included a dual-criminality component which allows extradition when an offense is punishable in both countries with deprivation of liberty for more than one year. Frauds are crimes in both countries.

If Lord Black does decide to contest his extradition, the process could take years.

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[1] Conrad Black, Ex-Hollinger Chief, Indicted for Fraud, Bloomberg, Nov. 17, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] See, e.g., our posts on the Extradition Act of 2003, here and here.

Extradition from Northern Ireland—Sean Garland Flees

Sean Garland, the head of the Irish Worker’s Party, has fled from Northern Ireland to escape extradition.^[1] According to the Washington Times, a statement on Mr. Garland’s personal website states that “he has decided to remain in the Republic of Ireland, where British authorities allowed him to travel two weeks ago for medical treatment.”^[2]

Since Mr. Garland’s arrest in early October, details about his alleged involvement with a huge North Korean counterfeit currency ring have been made public.^[3] The Koreans are accused of creating massive amounts of so-called “supernotes,” which are exceptionally high quality US$100 bills.^[4] Mr. Garland is accused of trafficking in more than US$1 million of the currency.^[5]

According to the Washington Times, Mr. Garland “initially agreed to return to Belfast for an extradition hearing related” to the charges, but he then determined that the proceedings would not be fair.^[6] That may be, but it is more likely that he is aware that the Republic of Ireland is a far more difficult country from which to get extradition suspects than Northern Ireland is. See, for example, our post on such difficulties, here.

We have previously discussed Mr. Garland here.

In an unrelated, but interesting piece of news, Rachid Ramda, who we mentioned yesterday, will be extradited to France.^[7] He will no longer be the man who has been waiting in British jail the longest for an extradition decision.

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[1] Bill Gertz, Irish Forgery Suspect Flees to Avoid U.S. Extradition, Washington Times, Nov. 17, 2005, available here.
[2] Id.
[3] Id. See also, Tim Johnson, N. Korea Accused of Printing Bogus U.S. $100 “Supernotes,” San Diego Union-Tribune, Oct. 29, 2005, available here.
[4] Johnson, supra note 3.
[5] Gertz, supra note 1.
[6] Id.
[7] Algerian Terror Suspect to Face Extradition from Britain, Agence France-Presse, Nov. 17, 2005, available here.

Extradition from Britain—Babar Ahmad Update

A decision has been made in the long and protracted extradition battle in the United Kingdom for terrorism suspect Babar Ahmad.^[1] British Home Secretary Charles Clarke has order Mr. Ahmad to be extradited to the United States, but Mr. Ahmad’s family has announced that they will appeal the decision.^[2]

If you recall, we noted just under a month ago that Mr. Ahmad’s extradition case was taking a surprisingly long time. Secretary Clarke defended the fact that he had to request and receive two two-month extensions: noting that “[l]egal battles surrounding extradition cases have been known to drag on for years,” the new Extradition Act of 2003 [hereinafter Act] was having “positive effects” and that many cases have been resolved in six months or less.^[3] Mr. Ahmad was arrested at the behest of the United States in August of 2004, but he is by no means the longest-serving prisoner waiting for an extradition decision; that dubious distinction goes to Rachid Ramda, who is wanted in France and has been in an UK prison for 10 years.^[4]

The Act has given extradition suspects only a single right of appeal to the high court, with a further right of appeal to the House of Lords if leave is granted.^[5]

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[1] Terror Suspect to be Extradited to US, The Guardian, Nov. 16, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id. See also Extradition Act, 2003, §§ 26, 32.

US-UK Extradition Treaty—Senate Hearings

The very controversial extradition treaty between the United States and the United Kingdom is scheduled to be debated in the Senate Foreign Relations Committee today.^[1] The new treaty would replace the original treaty which dates back to 1972.^[2] It would replace the “laundry list” of extraditable offenses with a “dual criminality” component which provides both countries with more latitude in who can be extradited.^[3] Because the Committee “is aware that particular interest has been expressed about the treaty with the United Kingdom,” today’s hearing is designed to “establish a record of the Administration’s views on the treaty.”^[4] An additional hearing will be held next year, at which time witnesses outside the US government will be heard.^[5]

The “particular interest” in question with the new treaty is that there are suspicions that it would remove the probable cause requirement for both countries. As we have seen, the UK’s Extradition Act of 2003, which was that country’s implementing legislation with regard to the new treaty, does not require the United States to show probable cause in order to have a suspect extradited from the UK;^[6] all that is required is “information” that a crime has been committed.^[7] That works out pretty well for the United States, and the treaty would not be controversial here if the treaty continued to require the UK to show probable cause in order to secure the extradition of suspects. What concerns some groups, such as the Irish Freedom Committee, is that “anti-British” Irish-Americans could be extradited to the UK, that the political exemption clause would be decimated, and that there is no statute of limitations requirement.^[8]

Concerns about the statute of limitations bar on extradition are well-founded. The text of the new treaty was included with the letter of submittal to the Senate, and Article 6 of the new treaty would indeed remove the statute of limitations bar: “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.”^[9]

The concerns about the political offense provisions may not be that compelling for the Foreign Relations Committee. According to Article 4 of the new treaty, extradition will not be granted if the offense is a political offense.^[10] However, murder, inflicting grievous bodily harm, kidnapping, abduction, using explosives, or conspiring to do any of the previous, have all been deemed not to be political offenses.^[11] Nonetheless, paragraph 3 of Article 4, does state that, notwithstanding the carve-outs from the political exception, “extradition shall not be granted if the competent authority of the Requested State [in the US’s case, the Executive branch] determines that the request was politically motivated.”

Finally, the concerns about burden-of-proof requirements as far as extradition requests to the United States also seem to be less compelling. The proof requirements in the new treaty are unbalanced in favor of the United States. According to Article 8, requests for extradition must be supported by a description of the person sought, a statement of the facts of the offense, the relevant legal provisions describing the elements of the offense, the relevant legal provisions prescribing punishment for the offense, and whatever necessary documents are required.^[12] In addition, if the individual is sought for prosecution, the request must include a copy of the warrant or order of arrest issued by a judge or other competent authority, a copy of the charging document—if any—and, for requests to the United States only, “such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.”^[13] Obviously, many people in the UK find that last provision onerous, and as a matter of international comity it is, but from a purely domestic standpoint, the new treaty is probably not as threatening as some people in the United States feel.

In addition to the US-UK treaties, the Committee will also be addressing Mutual Legal Assistance Treaties with Japan and Germany, along with an amendment to the Convention on Extradition with Israel.^[14]

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[1] Hearing: Treaties, Comm. on the Foreign Relations of the US, Nov. 15, 2005, available here [hereinafter Hearing].
[2] See Richard Lugar, Opening Statement for Hearing on Bilateral Law Enforcement Treaties, US Senate, Nov. 15, 2005, available here.
[3] Id.
[4] Id.
[5] Id.
[6] See Bill Wilson, Bankers at Centre of Extradition Test Case, BBC News Online (Sep. 27, 2004), available here. See also our previous discussion on the controversy here.
[7] Id.
[8] See Urgent Action Needed on US/UK Extradition Treaty Hearings Nov. 2005, Irish Freedom Comm., Nov. 12, 2005, available here.
[9] See George W. Bush, Transmitting Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland at 18, Apr. 19. 2004, available here. (PDF)
[10] Id. at 17.
[11] Id. at 17-18.
[12] Id. at 19.
[13] Id.
[14] Hearing, supra note 1.

McNabb in the News

Senior Principal Douglas McNabb is featured in a Voice of America report on Yevgeny Adamov.

Douglas McNabb is a defense attorney with McNabb Associates, an international criminal defense firm with offices in the U.S. and Europe.

"The U.S. wants him because of the outstanding charges. Russia wants him apparently because this gentlemen may have information about the nuclear program that they want to make sure that the U.S. doesn't get hold of. "

…

Mr. McNabb offers a possible explanation. "I don't think that the U.S. government at this point wants it disclosed that there is a possibility that one of the options available to Mr. Adamov is that he may cooperate with the government."

…

Mr. McNabb disagrees. “My view of Mr. Adamov's case is that this isn't a political case; this is a law enforcement case. That he has been charged with criminal activity. Now, as a result of his being charged with criminal activity, he may very well disclose to the U.S. government information that the U.S. government could use politically."^[1]

This story is also accompanied by a video.

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[1] Anya Ardayava and Kathie Scarrah, Former Russian Nuclear Official Fighting Extradition to the United States, Voice of America, Nov. 14, 2005.

CIA Activities—European Extradition Inquiries

The past couple of weeks have been quite controversial for the CIA. For one thing, Vice President Cheney is pressuring the Senate to create a carve-out in a defense spending bill to allow the CIA to be exempt from rules prohibiting torture. Then there is the issue about the secretive CIA-run “black sites” in foreign countries. And late last week, an Italian prosecutor in Milan requested that Italy make an extradition request for 22 CIA agents who allegedly kidnapped popular Imam Abu Omar in that city. Over the weekend, all three issues received even more attention.

Treatment of Detainees
The issue of allowing the CIA to torture detainees captured during the “war on terror” was highlighted this weekend as Senator Lindsey Graham (R-SC) proposed an amendment to the same spending bill that would deny Guantanamo Bay detainees access to Federal Courts.^[1] The amendment, which was approved by a 49-42 margin, would nullify the US Supreme Court decision in Rasul v. Bush,^[2] which stated that “[a]liens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority.”^[3] Senator Graham seems to be basing his amendment on language found in Justice Scalia’s dissent in Rasul. In that dissent, Scalia challenged the assertion that Guantanamo Bay was within the United States’ territorial jurisdiction, and suggested that Congress could change the applicability of 28 U.S.C. § 2241.^[4] However, as nine senators were absent from the vote on Senator Graham’s amendment, Democrats, led by Senator Jeff Bingamin (D-NM), have vowed to bring another vote, perhaps as early as today.^[5]

CIA “Black Sites”
Spanish authorities are currently investigating allegations that the CIA used an airport on the Spanish island of Mallorca as part of the CIA’s extraordinary rendition program.^[6] The 114-page report, which was the culmination of a four-month investigation prompted by articles in the Diario de Mallorca newspaper, was submitted in July and it is not immediately clear if Spain’s National Court has begun or agreed to undertake an investigation.^[7] However, the alleged existence of the so-called “black sites” has caused the European Union to launch inquiries into the CIA’s practices in that continent. ^[8] The Diario de Mallorca is reporting that German prosecutors are seeking information from Spanish authorities about a “prison flight” involving a German citizen known as Khaled el-Masri.^[9]

Extradition of CIA Agents
In separate news out of Germany, Prosecutor Ebehard Bayer, who is based in Zweibruecken, confirmed to the German magazine Der Spiegel that he is investigating whether one of the agents stepped foot on German territory as the plane allegedly carrying Abu Omar touched down at Ramstein Air Base.^[10] While it seems that Italian Justice Minister Roberto Castelli has announced that he will “wait to decide” whether to forward the extradition request to the United States,^[11] the fact that a German prosecutor is trying to determine whether Abu Omar “touched German soil” while changing planes at Ramstein is a consideration that the CIA assuredly does not desire. One further interesting fact in the case is that the Gulfstream jet which allegedly ferried Abu Omar is registered to Phillip H. Morse, who is a partner in the Boston Red Sox.^[12] Mr. Morse has acknowledged that he allowed the CIA to charter the plane when it is not being used by the Red Sox, but denied any knowledge of how it has been used.^[13]

We have previously discussed the CIA’s black sites here, and the potential extradition of CIA agents here.

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[1] Eric Schmitt, Senate Votes to Limit Rights of Guantanamo Detainees, Int’l Herald Tribune, Nov. 11, 2005, available here.
[2] 542 U.S. 466 (2004).
[3] Id. at 481.
[4] Id. at 488-89 (Scalia, J., dissenting).
[5] Schmitt, supra note 1.
[6] Maria Jesus Prades, CIA Accused of Using Airport on Mallorca, The Guardian, Nov. 14, 2005, available here; see also, Stephen Grey, et al., Spain Looks Into C.I.A.’s Handling of Detainees, NY Times, Nov. 14, 2005, available here.
[7] Id.
[8] See, e.g., Constant Brand, Europeans, Red Cross, Rights Groups Investigate Reports of Secret CIA Prisons, San Diego Union-Tribune, Nov. 3, 2005, available here.
[9] El Fiscal Alemán Pedirá el Informe Sobre un Secuestro de la CIA Desde Palma, Diario de Mallorca, Nov. 14, 2005, available here.
[10] John Crewdson, Italy Pauses Push for CIA Extraditions, Chicago Tribune, Nov. 13, 2005, available here. See also, Germany and Italy Want to See the CIA in Court, Spiegel Online, Nov. 14, 2005, available here.
[11] Crewdson, supra note 10.
[12] Id.
[13] Id.