International Extradition Weekly Recap 1-6-06

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International Extradition Updates—Marc Emery and Arthur March

Two of the extradition stories we have been following have developed somewhat. The first is Marc Emery and the second is Arthur March.

Marc Emery, who has been dubbed the “Prince of Pot,” is facing extradition to the United States for trafficking in marijuana seeds. As we have noted before, he is something of a cult hero in Canada, and his potential extradition is extremely controversial. He is so popular, in fact, that he recently was asked by Svend Robinson of Canada’s New Democratic Party to campaign for him. It is now being reported that Canada is refusing to proceed with prosecuting Mr. Emery, which is seen as clearing the way for his extradition.^[1]

The report stems from private criminal charges laid by David McCann, a Vancouver art shop owner, who was attempting to “derail” Mr. Emery’s extradition.^[2] Claiming that he doesn’t “know Mr. Emery from Adam,” Mr. McCann spent CAN$15,000 of his own money to lay conspiracy charges because he stands on principle and is “offended by the hypocrisy” of sending Mr. Emery to the US to face trial for something Canadian authorities have permitted him to do in that nation;^[3] Health Canada even apparently referred some patients to Mr. Emery for medicinal marijuana.^[4] The private charges, which were filed in September,^[5] were referred to a Vancouver prosecutor who has stayed the prosecution, which angered Mr. McCann, saying “You can’t, for 10 or 12 years, give somebody licence to operate their business and collect taxes from them and then come along later and let him be extradited to another country for operating that business.”^[6] According to Mr. Emery, the Canadian government has said that “it is not in the public interest” to charge him, which baffles him.^[7]

An August, a separate private citizen filed conspiracy charges against Mr. Emery. Paddy Roberts of South Slocan, British Columbia, “who spent several months in a Dutch jail several years ago pending extradition to the U.S. on his own drug charges,” is concerned with the extension of American jurisdiction into Canada.^[8] Mr. Roberts is still waiting to find out what will happen with his charges, but he has noted that “criminal conspiracy charges are typically handled by the provincial Crown,” but the federal government has tried to intervene, prompting Mr. Roberts to file a “writ of prohibition to stop federal prosecutors from intervening and possibly staying the charges to allow the extradition hearing against [Mr.] Emery to proceed.”^[9]

A hearing is scheduled on Mr. Emery’s birthday, February 13, to set a fall date for his extradition hearing.^[10]

The other story we have mentioned before is that of Arthur March. At that time, we noted that he won the right to a hearing in Mexico as he contests his extradition from Mexico to Tennessee; he and his son, Perry March, are being charged in Tennessee with one count of conspiracy to commit first-degree murder and two counts of solicitation to commit first-degree murder.

It now seems that Mr. March has been arrested and deported by Mexican immigration officials.^[11] The reason for his deportation is not clear, and Tom Thurman, the Davidson County, Tennessee deputy district attorney “would not say whether the deportation was prompted by efforts of authorities in the U.S.”^[12] It is acknowledged that the extradition process from Mexico to the United States “had not been completed by the time of his arrest yesterday.”^[13] He was transferred to FBI custody in Guadalajara, Mexico and is now in FBI custody in Houston, facing extradition from Texas to Tennessee.^[14]

A witness to Mr. March’s arrest said it happened in a similar fashion to Perry March’s arrest in Mexico last July: “several men drove up and took him right off the street in front of his favorite doughnut shop.”^[15]

If US authorities are involved in the circumvention of normal legal processes, this is an extremely troubling development. Hopefully more details will emerge about just how the situation unfolded.

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[1] See Emery Lawyer Blasts Ottawa Over Charges, London (Canada) Free Press, Jan. 6, 2005 (hereinafter LFP); Darcy Henton, Up in Smoke, Edmonton Sun, Jan. 5, 2006.
[2] Henton, supra note 1.
[3] Id.
[4] LFP, supra note 1.
[5] Id.
[6] Henton, supra note 1.
[7] Id.
[8] Camille Bains, Canada Acting as Arm of U.S. Drug War by Staying Charges, Lawyer Says, CANOE-CNews, Jan. 5, 2006.
[9] Id.
[10] Henton, supra note 1.
[11] Christian Bottorff et al., March’s Dad Nabbed in Mexico, Ashland City Times, Jan. 6, 2006.
[12] Id.
[13] Id.
[14] Id.
[15] Arthur March Arrested in Mexico; Brought Back to United States, NewsChannel 5 (Nashville), Jan. 5, 2006.

Extradition to the United States from Britain—Haroon Rashid Aswat Update

British Magistrates Court Judge Timothy Workman has approved the extradition of Haroon Rashid Aswat to the United States.^[1] When we last mentioned Mr. Aswat, we noted that there were serious concerns that, despite assurances from the US Embassy in London, Mr. Aswat would be sent to Guantanamo Bay.

Judge Workman ruled that he was “satisfied that the grounds for extradition were proper, and that the final decision to turn over [Mr.] Aswat to the US authorities rests with Home Secretary Charles Clarke.”^[2] Furthermore, he noted that the diplomatic note provided by the US Embassy “assured the British government that Aswat would be ‘prosecuted before a federal court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.’”^[3] Judge Workman also noted that the note, which “does not provide any personal protection” to Mr. Aswat, pledged that he would not be prosecuted by a military commission as an enemy combatant; Judge Workman is “satisfied that it does bind the government of the United States of America which in these terms includes the president.”^[4]

Mr. Aswat is planning to appeal the decision to the High Court.^[5]

An interesting tidbit about Mr. Aswat is that his arrest in and deportation from Zambia “last July sparked media speculation that he might be implicated in suicide attacks on London transport that had killed more than 50 people just days earlier. But British police said he was not a target of their investigations into the London bombings.”^[6] On July 31, 2005, the Sunday Times in London noted that US intelligence sources “believe [Mr. Aswat] assisted or masterminded the [July 7 and 21] London attacks.”^[7] On the same day, the Telegraph reported that US officials were irritated with British officials for not seizing Mr. Aswat in South Africa to have him extraordinarily rendered:

"The discussion was whether or not they would render him," a US official said. "He's got UK papers and they said you can't render somebody with UK papers." The frustration of the US authorities deepened when the South Africans subsequently lost track of Aswat.

British officials have countered that they would have co-operated if the US had pursued an extradition request over the Oregon charges but that their problem was with the American desire for a rendition.^[8]

After Mr. Aswat was deported from Zambia, he was formally arrested in Britain, and extradition hearings were scheduled.^[9] The fact that Mr. Aswat was deported from Zambia, rather than extradited, clears up some of the potential problems that could have arisen had Mr. Aswat been extradited from Zambia. The official reason given for the British government’s interest in Mr. Aswat is that they wanted to question him about his connections with international terrorism and al-Qaeda.^[10] Ordinarily, however, extradition cannot be had for simple questioning.^[11] Furthermore, in the event that Mr. Aswat had been extradited rather than deported from Zambia, if there is a third-party clause in the extradition treaty between the UK and Zambia, it likely prevents the surrender of the person from the Requesting State (here, the UK) to a third State (here, the US) “for an offence committed before that person’s surrender” unless the Requested State (here, Zambia) consents to that surrender, or the person has had an opportunity to leave the territory of the Requesting State after final discharge and has not done so.^[12]

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[1] Judge Approves British Terror Suspect’s Extradition to US Agence France-Presse, Jan. 5, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Court Rules Terrorism Suspect Can be Sent to U.S., Reuters, Jan. 5, 2006.
[7] Richard Woods, et al., Tangled Web That Still Leaves Worrying Loose Ends, Sunday Times (London), Jul. 31, 2005.
[8] Philip Sherwell, et al., Britain and America Clash Over Tactics, Telegraph, Jul. 31, 2005.
[9] US Files “Terrorist” Charge Against Briton Haroon Rashid Aswat, Forbes.com, Aug. 8, 2005.
[10] Sherwell, supra note 8.
[11] See generally, US Requires Proof for Samira’s Extradition, Rediff.com, Nov. 22, 2005 (“You don't extradite people for questioning,” says a US administration official regarding any potential extradition request for Samira Jumani, who we discussed here).
[12] See, e.g., Extradition Treaty, Sep. 16, 1999, U.S.-S. Afr., art. 18, S. Treaty Doc. No. 106-24 (2001); Extradition Treaty, Jul. 25, 1997, U.S-Zimb., art. 14, para. 2, S, Treaty Doc. No. 105-33 (2000); Extradition Treaty, Jul. 10, 1996, U.S.-Pol., art. 19, para. 2, S. Treaty Doc. No. 105-14 (1999).

Extradition from Liberia—Bailey and Kermue Update

The very contentious extradition proceedings involving Wilma Bailey and Melee Kermue, which we discussed on December 8 and 9, have become yet more complicated. It now seems that the documentary evidence supplied by the United States for the extradition of the two people, around whom violence erupted the last time we heard any news about the case, is lacking.^[1]

Attorneys for Ms. Bailey and Mr. Kermue have asked Criminal Court “A” Judge James Zotaa to not allow into evidence photocopied documents because they are not original copies as required under section 25.6 of the Liberian Code of Laws.^[2] Under that section, which pertains to “best evidence,” “a copy of a writing is not admissible as evidence, unless the original is proved to be lost or destroyed or to be in the possession of the opposite party who has received notice to produce it or unless it is a copy of some public Code of Laws.”^[3] Furthermore, they argue, section 25.7, pertaining to hearsay evidence, “states that hearsay evidence is not admissible” unless it relates to family history, general reputation, regular course of business, or otherwise established by law.^[4]

The government replied by arguing that the Foreign Ministry has indeed lost the original documents, as well as arguing that such documents can be entered into evidence if they are “testified to, identified and confirmed by a state witness in a court of law.”^[5]

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[1] Extradition Case Heats Up Again, The Analyst, Dec. 31, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.