Extradition from the Netherlands to the United States—Wesam al Delaema Update

The long and fascinating story of Wesam al Delaema seems to have reached an end in the Netherlands, with a surely just-as-interesting story about to begin in the United States. If you recall, we have discussed Mr. al Delaema—who is the first individual to be charged with committing terrorism in Iraq—at length, most recently in February of this year. The United States wants him extradited, and he has attempted to avoid extradition by arguing that he is innocent and could be sent to Guantanamo Bay.

A Dutch court, however, seems to have removed the last hurdle facing the United States in having Mr. al Delaema extradited.^[1] His attorneys had argued that the United States does not have a right to try him, that he could be tortured, and that the United States’ legal system “cannot be trusted.”^[2] The United States countered by assuring the court that he will be tried in federal court—not by a military commission—and that the United States would not be opposed to allowing to serve his sentence in the Netherlands if he is convicted.^[3] Based on those assurances, the Dutch court stated that “[t]here is not reason to believe that the U.S. authorities will not abide by the commitments they have given or … deprive the suspect of his fundamental rights.”^[4]

The Dutch court is relying on principles of comity in so ruling, expecting that the United States will abide by its representations. Any breach of those assurances, however, likely cannot be argued by Mr. al Delaema. A number of courts have concluded that objections to a violation of the extradition agreement can only be an affront to the surrendering country, not to the individual, and therefore “the extradited individual … can only raise those objections to the extradition process that the surrendering country might consider a breach of the extradition treaty.”^[5] In other words, if the United States chose to violate those assurances, Mr. al Delaema could complain about the breach only if the Netherlands was likely to do so.

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[1] Mike Corder, Dutch National Faces U.S. Terror Trial, AP (via Yahoo!), Dec. 19, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] United States v. Baez, 349 F.3d 90, 92 (2d Cir. 2003) (quoting United States v. Diwan, 864 F.2d 715, 721 (11th Cir. 1983).