Extradition from the United Kingdom and the Czech Republic to the United States—Abu Hamza and Oussama Kassir

The alleged terrorism camps in Bly, Oregon are the topic of our discussion today. First we start with Abu Hamza, who has just been convicted in Britain and sentenced to seven years in jail for “soliciting murder and inciting racial hatred.”^[1] The United States is also seeking his extradition from the United Kingdom, and US prosecutors “say that they will wait ‘as long as it takes’ to get their hands on Abu Hamza.”^[2] The extradition hearings will resume next month,^[3] after having been delayed pending the outcome of Abu Hamza’s trial.^[4] He will not stand trial in the United States, however, until he is released from jail in Britain, which could be as early as November 2007.^[5]

He is charged in an 11-count indictment with being involved “in the kidnapping and murder of western hostages in Yemen, [with] an attempt to set up a terrorist training camp in Bly, Oregon, and [for] sending recruits for terrorist training in Afghanistan.”^[6] Note that only one of those acts is alleged to have any connection to the United States, which is a testament to the reach of US jurisdiction, a matter we keep pointing out.

While a planned angle of attack against his extradition is suspicions that he will not receive a fair trial and that he might be sent to Guantanamo Bay, these arguments have been less than persuasive to the United Kingdom.^[7] We recently discussed Haroon Rashid Aswat, who was “one of Abu Hamza’s most trusted lieutenants,” who made similar arguments, and ultimately lost. He is currently appealing the decision to extradite him, but it is almost a given that the US Embassy in London will provide the same assurances to Abu Hamza that they gave to Mr. Aswat. Whether those assurances are adhered to depends on how much stock the United States puts in principles of international comity.^[8]

Linked to Abu Hamza and Mr. Aswat is Oussama Kassir, who we briefly mentioned yesterday. According to our contacts in the Czech Republic, the only concerns about the applicability of the US-Czech extradition treaty come from the United States; the Czech Republic has announced that it assumed all Czechoslovakian treaty obligations when that country split. However, as we pointed out in December, there is no real question whether the 1925 treaty and the 1935 supplementary are still valid. The question is whether the laundry-list of extraditable offenses applies to what Mr. Kassir is alleged to have committed.

There is some credence to our suspicions because then-Attorney General Ashcroft and the Czech Interior Minister agreed in 2004 that the treaty needed to be modernized. However, that process has not begun yet, and when it does begin, the US will start with the “old” EU members first, meaning the Czech Republic will be further down the list.

The other possibility that is being bandied about is the 1998 Mutual Legal Assistance Treaty [hereinafter MLAT]. MLATs, however, do not typically provide for extradition of suspects to stand trial. It would allow the Czech Republic to “provide assistance without regard to whether the conduct that is the subject of the request would constitute an offense under the laws of the Requested State.”^[9] The assistance available, however, includes, but is not limited to:

• locating or identifying persons or items;
• serving documents;
• taking the testimony or statements of persons;
• transferring persons in custody for testimony or other purposes;
• providing documents, records, and articles of evidence;
• executing requests for searches and seizures;
• immobilizing assets;
• assisting in proceedings related to forfeiture of assets, restitution, and criminal fines; and
• providing any other assistance consistent with the laws of the Requested State.^[10]

There is a question of whether transferring a person in custody for “other purposes” includes transferal for trial. Article 12, however, notes that persons in custody wanted “for purposes of assistance under the treaty” are to be surrendered “temporarily.”

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[1] Duncan Campbell, Jailed Islamic Cleric Faces Extradition to US, Sydney Morning Herald, Feb. 9, 2006.
[2] Sean O’Neill, US Eager to Start Extradition Process, The Times (London), Feb. 8, 2006.
[3] Id.
[4] Campbell, supra note 1.
[5] O’Neill, supra note 2.
[6] Id.
[7] Id.
[8] See our post on principles of international comity here.
[9] Treaty on Mutual Legal Assistance in Criminal Matters, Feb. 4, 1988, U.S.-Czech., art. 1, para. 3, S. Treaty Doc. No. 105-47 (2000).
[10] Id. art. 1, para. 2.