The
international extradition case of Haroon Rashid Aswat has suddenly become extremely complicated. When we first
mentioned Mr. Aswat, we noted that he had been deported from Zambia to the United Kingdom on August 7, and that he was the subject of an extradition request from the United States. He is suspected of being linked to Oussama Kassir, who we discussed last
week, in a plan to set up a terrorist training camp in Bly, Oregon.
[1] Concerns have now risen in Mr. Aswat’s extradition hearing about the possibility that he could be transferred to the Guantanamo Bay detention facility if he is extradited to the United States.
[2]The US embassy in London has “previously issued a diplomatic note containing an assurance that Mr. Aswat will not be detained indefinitely without trial, tried in a military court or treated as an enemy combatant if he is sent to the US.”
[3] However, a US lawyer has cautioned that he did not believe the note was binding on the President George W. Bush.
[4] In his opinion, the “risk remained” that Mr. Aswat might be designated an enemy combatant under “
Military Order No. 1” and that he could be transferred to Guantanamo.
[5] He also said that there was an “overwhelming risk” that Mr. Aswat could be subjected to “special administrative measures,” which is an extreme euphemism for “solitary confinement, the cutting off of contact with the outside world and the placing of limitations on the confidentiality of his discussions with his lawyers.”
[6]Asked whether the diplomatic note—which said that Mr. Aswat would not be turned over to a military commission, nor designated an enemy combatant—the lawyer said that he does not “think that removes the risk. Under the terms of the Presidential Military Order, he and he alone is the only official in the US government who has the decision to designate or not to designate a non-citizen as an enemy combatant.”
[7]There are substantial grounds for concern. As we have noted
before, the United States has, on occasion, violated principles of international comity. For example, the issue has come up in connection with extraditions from Colombia. In one noteworthy case,
United States v. Baez,
[8] the defendant was extradited from Colombia based on an assurance found in Diplomatic Note No. 1206 that the United States executive authority “will not seek a penalty of life imprisonment at the sentencing proceedings.”
[9] Colombia’s maximum penalty for any crime is 40 years. The Note even stated that “should the competent United States judicial authority nevertheless impose a sentence of life imprisonment against [the defendant,] the United States executive authority will take appropriate action to formally request that the court commute such sentence to a term of years.”
[10] The defendant in that case, was nevertheless sentenced to life imprisonment, which was approved by the Second Circuit Court of Appeals. Under principles of international comity, the principle of specialty “generally requires a country seeking extradition to adhere to any limitations placed on prosecution by the surrendering country.”
[11] What distinguishes
Baez from Mr. Aswat’s case is that the executive authority in Mr. Baez’s case
did request that life imprisonment not be imposed; in Mr. Aswat’s case it is the fear that the executive authority will not adhere to the guarantees offered by its own embassy.
While the procedures for extradition from the United Kingdom are governed by the
Extradition Act of 2003, which is that country’s enacting legislation for the new extradition treaty negotiated between the UK and the US in early 2003,
[12] the United States’ obligations are still enshrined in the previous treaty, signed in
1972 and its
supplement, signed in 1985. According to the 1972 treaty, “[a] person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters.”
[13]This is scant protection for Mr. Aswat, unless the embassy’s assurances contain language such as seen in
Baez, such as “the
executive authority will not transfer the defendant to Guantanamo” or the like. Otherwise, under Military Order No. 1, the President has the apparent authority to “determine from time to time in writing,”
[14] that an individual may be “detained at an appropriate location designated by the Secretary of Defense outside or within the United States.”
[15] Because the 1972 treaty contains a dual-criminality clause,
[16] and both the US and the UK criminalize conspiracies to engage in terrorism, Mr. Aswat could be detained in this manner for an extraditable offense. Apparent from the specific aforementioned language, about the only thing that could force the US to adhere to its embassy’s assurances are principles of international comity.
[1] Briton “Could Be Sent to Guantanamo,” The Guardian, Dec. 22, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] 349 F.3d 90 (2d Cir. 2003).
[9] Id. at 92.
[10] Id.
[11] Id.
[12] See our post on the new treaty’s controversies here.
[13] Extradition Treaty, Jun. 8, 1972, U.S.-U.K., art. XII, 28 U.S.T. 227 [hereinafter Treaty].
[14] President George W. Bush, Press Release: President Issues Military Order, § 2(a), Nov. 13, 2001.
[15] Id. § 3(a).
[16] Treaty, art. III, para. 1 (allowing extradition for any act in the "laundry list," as well as “any other offense” which is punishable under the laws of both countries by imprisonment for more than one year).
