Statement of Deputy Attorney General Paul J. Mcnulty
Before the Senate Committee on Foreign Relations
Concerning the 2003 United States-United Kingdom Extradition Treaty
July 21, 2006
Mr. Chairman and members of the Committee, I am pleased to appear before you today to present the views of the Administration and the Department of Justice regarding the 2003 United States-United Kingdom Extradition Treaty. This morning, I would like to reiterate the importance of this treaty to U.S. national security and law enforcement interests. I would also like to rebut some of the false and inaccurate criticisms that have been leveled against this important treaty.
Approval of this treaty is an urgent priority for President Bush and the Attorney General. I do not need to tell this Committee that we face an increasing need for cooperation and assistance from the international community in the investigation of terrorism, violent crime, trafficking in persons, drugs and firearms, large-scale financial crimes and other offenses. This treaty would further that goal by modernizing our extradition relationship with the UK.
On the other hand, failing to approve this treaty will have serious negative consequences. For example, the UK House of Lords last week overwhelmingly voted to rescind its designation of the U.S. under the UK’s 2003 Extradition Act for relief from the onerous prima facie evidence standard for extradition. The House of Commons has also begun to take steps in that regard. This action is in response to increasing pressure in the UK – in some political circles, the business community and the press – to correct a perceived “imbalance” in the current U.S.-UK extradition relationship resulting from the fact that the UK has approved the treaty but the U.S. has not. If this rescission ultimately were to take effect, it would mean, among other things, that the U.S. would be subject to the pre-2003 extradition requirements of submitting prima facie evidence of guilt in our extradition applications. As a result, it would be much harder to extradite terrorists, violent criminals, drug traffickers, white collar criminals and others.
Even if the UK government does not ultimately rescind its favorable designation of the U.S. under its Extradition Act, continuing delay in the United States’ approval of this treaty would still have serious consequences in our law enforcement cooperation, particularly in terrorism cases. For example, the United States is seeking the extradition from the UK of Abu Hamza on charges of kidnapping U.S. and other Western tourists in Yemen, sending recruits to Afghanistan for terrorist training, and conspiring to establish a jihad training camp in the United States. Abu Hamza is currently serving a sentence in the UK for incitement of racial hatred. If the new Treaty were in effect, the UK would be able to provide Hamza to the U.S. for trial under the Treaty provision permitting “temporary surrender.”
In the absence of the new Treaty, however, the UK Home Office has indicated that the UK will refuse to extradite Abu Hamza based on their view that, although the UK could “temporarily surrender” Abu Hamza to the U.S. prior to the expiration of his UK sentence (because they have ratified the treaty), the U.S. could not return him to the UK to finish serving his UK sentence after his U.S. trial (because we have not yet ratified the treaty). The result is that the U.S. will not be able to try Hamza until he is extradited following his UK sentence. This delay, which is likely to be for several years, may have serious consequences: it will render it more difficult for the U.S. to try an individual who has been charged as a dangerous terrorist.
Mr. Chairman, over the past two decades, this Committee has approved a series of new extradition treaties that have significantly improved our ability to deny terrorists and other criminals safe haven from facing justice in U.S. courts. Surely, our law enforcement relationship with the UK – one of our most critical and successful partners in preventing and prosecuting terrorism and other crimes – should benefit from the same modern extradition regime. That is why approval of this treaty is such an urgent national security and law enforcement priority for the Administration. On behalf of the Administration and the Department of Justice, I respectfully urge this Committee to approve this treaty as soon as possible.
II. LAW ENFORCEMENT BENEFITS OF THE TREATY
Before I address the inaccurate assertions about this treaty, let me briefly reiterate how the treaty improves law enforcement cooperation with the UK.
One of the primary benefits of the new treaty is that it removes the “prima facie” evidence requirement imposed by the UK in extradition cases and replaces it with a less stringent standard under new UK domestic extradition laws. After the treaty was signed, the Government of the United Kingdom undertook as of January 2004 to designate the United States for favored treatment under its domestic legislation – in particular, to permit the United States to meet the lower standard of proof – even though the United States ratification process was not yet complete. This designation has made the preparation of extradition requests far easier and, in some cases, allowed us to proceed with cases that we might earlier have declined to pursue.
Unfortunately, as time has passed since the Administration first presented this treaty to the Committee, the Government of the United Kingdom has been the recipient of increasingly sharp criticism in the press and in Parliament over having given the United States the beneficial designation without a showing of reciprocal support for an improved extradition relationship through United States approval of the new treaty.
Additionally, a number of significant defendants in pending extradition cases from the United States are starting to raise the allegation of a “flawed” designation process in the lower courts and on appeal. Most notably, three UK bankers who are defendants in Enron-related proceedings opposed extradition on those grounds, among others. The so-called “NatWest 3” were extradited to the U.S. last week, but their case has received significant attention in the British press and has stirred up significant support for suspending the UK’s current extradition relationship with the U.S.
In addition to eliminating the prima facie requirement, the treaty is a “dual criminality” treaty, which is a significant improvement over the pre-2003 treaty. As a result, the treaty expands the scope of extraditable offenses well beyond those specifically recognized in the existing treaty’s list or in domestic UK extradition law. Additionally, the treaty automatically applies to new felonies enacted into law.
The new treaty will also allow a faster, more direct channel for requests for provisional arrest. Provisional arrests are used in urgent circumstances to prevent the flight of serious felons or to detain promptly dangerous and violent suspects. These requests can be made directly between the Department of Justice and an authority to be designated by the United Kingdom, thus obviating the need to go through formal diplomatic channels in order to secure emergency assistance.
As noted above, another provision in the new treaty of particular significance is that authorizing “temporary surrender.” Under the current treaty, the extradition of an individual who is being prosecuted or serving a sentence in one country must be deferred until the completion of the trial and any sentence imposed. Such a deferral can have disastrous consequences for a later prosecution due to lapse of time, the absence or death of witnesses, and the failure of memory. The new provision will allow the individual being tried or punished in one country to be sent temporarily to the other for purposes of prosecution there and then returned to the first country for resumption of the original trial or sentence.
III. CRITICISMS OF THE TREATY ARE UNFOUNDED
I would, however, like to rebut briefly the primary objections that have been put before this Committee by various groups and individuals, including objections Professor Boyle expressed in his March 2004 letter to the Committee and which I understand are reiterated in his testimony today.
At the outset, I must refute in unequivocal terms the suggestion of Professor Boyle and others that the United States has entered into this treaty in order to collude with the United Kingdom in a campaign of retaliation against Irish American citizens. This is false. This is a treaty, like all other extradition treaties to which the United States is a party, concerned with crimes recognized as such under the laws of the United States. The United States has entered into this treaty because it benefits the law enforcement interests of the United States, and those interests extend to protecting all our citizens who may fall victim to crime. Every one of its provisions has an analogue in other modern extradition treaties that this Committee has approved, and which have been administered in conformity with United States laws and the United States Constitution. There is no basis for Professor Boyle’s claims to the contrary.
A. Political Speech, Political Offense and Political Motivation
One of Professor Boyle’s central criticisms of the treaty has been his view, as articulated in his March 2004 letter, that it is “directed primarily against Irish American citizens engaged in the lawful exercise of their constitutional rights under the First Amendment” and that it would make them “extraditable to the British Crown … [for] … exercising their rights under the First Amendment ….” The treaty does no such thing. Speech protected by the First Amendment is not, and cannot be, recognized as a criminal offense under U.S. law. Conduct that does not constitute an offense under U.S. law fails the core dual criminality test of the new treaty, the current treaty, and all other extradition treaties to which the United States is a party. Therefore, extradition simply is not permitted with respect to speech protected under the First Amendment.
Critics also claim that the new treaty with the UK represents a dramatic departure in the treatment of political offenses, for which extradition is barred, and of assertions that a particular request for extradition is motivated by a desire to punish an individual for his or her political beliefs. Contrary to these claims, the new treaty is completely in accord with other modern extradition treaties, and U.S. law.
First, the new treaty, like the 1985 Supplementary Treaty now in force, makes it clear that persons engaged in serious crimes of violence, including crimes involving explosives and firearms, may not avoid extradition by invoking the political offense doctrine. As the Committee well knows, this provision, which has now become a standard, was a reaction to terrorism and the potential for abuse of the political offense doctrine by terrorists as a means to avoid extradition. Put simply, this treaty, like so many others, does not countenance a terrorist asserting that he can evade justice because his designs of murder and mayhem were motivated by his political objectives. Other than these specific exclusions, however, it will remain for the courts to determine whether the offense constitutes a political offense for which extradition is barred.
Second, the treaty deals with the question of “political motivation” – a claim that a request for extradition is in fact motivated by the Requesting State’s desire to punish the person for his political views – in the same manner as virtually every other extradition treaty, and in the same manner specified by longstanding U.S. court decisions. All U.S. courts, and every extradition treaty that addresses the issue, adhere to the rule of “judicial non-inquiry,” reserving such questions for decision by the Executive Branch. The only departure, and one never repeated since, was the 1985 Supplementary Treaty with the UK.
Although no defendant has ever succeeded under the current treaty in defeating his extradition to the UK on the basis of political motivation, the years of litigation generated as our courts grappled with these claims demonstrated that under the U.S. system, such issues are better reserved, as for all other treaty partners, for decision by our Secretary of State. Thus, it is wrong to suggest that the 2003 treaty somehow reverses “centuries” of treaty precedent. It does nothing of the kind - the new treaty will simply restore the legal standard applicable in every other U.S. extradition treaty.
B. Other Objections
I would like to address, briefly, a number of other criticisms of the treaty. First, there is no basis for claims that the provisional arrest provisions of the treaty either violate the Fourth Amendment or provide for indefinite detention. As the Department of Justice has made clear in prior testimony and questions for the record, the Fourth Amendment does apply to the issuance of a warrant for provisional arrest. The provisional arrest language of the new treaty is entirely consistent with that of numerous extradition treaties that have been approved by the Committee and that have been applied by U.S. courts in conformity with constitutional requirements. Moreover, the provisional arrest article, like that in all other treaties, sets a time frame in which the formal request for extradition must be submitted. Should that fail to be done, the U.S. court may then release the defendant. This is not indefinite detention.
There is no basis for the claim that the treaty eliminates statutes of limitation. The treaty has no impact on application of statutes of limitations. Rather, it preserves for the courts where the case is to be tried the determination whether the applicable statue of limitations would bar the prosecution, rather than calling on the extradition court to interpret a foreign statute of limitations, or to try to engraft its domestic statute of limitations on the foreign charge. This approach is reflected in many of our modern extradition treaties.
There is no basis for the claim that the treaty eliminates the necessity of a showing of probable cause. Both the treaty and longstanding U.S. law make it clear that a U.S. court must make a determination that there is sufficient information in the extradition request to find probable cause that a crime has been committed and that the fugitive committed that crime before the fugitive may be ordered surrendered to face trial in the foreign country.
There is no basis for the claim that the treaty permits prosecution in violation of the ex post facto clause of the Constitution. This treaty, like the 1985 Supplementary Treaty, makes it clear that the treaty may apply to offenses committed before it enters into force. This is a standard treaty provision, and it does not permit a retroactive application of the underlying criminal statute for which the fugitive has been charged or convicted.
There is no basis for the claim that the treaty permits extradition for conduct that is not considered an offense in the United States. Article 2 of the treaty makes it clear, as do all other treaties, that extradition is permitted only if the conduct charged in the UK would also constitute an offense under U.S. law. Because federal criminal jurisdiction is limited, many common offenses, such as murder, sexual assault, burglary and theft are ordinarily punishable under State law, rather than federal criminal law. Thus, for purposes of assessing the core requirement of dual criminality, U.S. courts have long held that they may look to state law as well as federal law to assess this requirement. This approach, which is simply reflective of the United States’ unique federal system, in no way undermines the fundamental requirement of dual criminality that is enshrined in this and other U.S. extradition treaties.
Finally, as explained in our prior submissions to the Committee, the treaty does not eliminate the rule of specialty. To the contrary, this principle, which limits the prosecution of a person for offenses other than those for which he or she has been extradited, is fully preserved in Article 18 of the Treaty. The only substantive variation from the current treaty is that it provides an explicit provision for the extraditing state to waive the rule of specialty, if in its discretion and considering the particular circumstances of the case, it deems it appropriate to do so. This sort of clause has been a standard treaty provision for years. And although such an explicit provision for waiver is not necessary for the United States, it was necessary for the United Kingdom.
Mr. Chairman, as I have emphasized today, the new treaty with the United Kingdom is entirely consistent with other modern extradition treaties. Our law enforcement relationship with the United Kingdom is one of our most important, and it should benefit from the same sort of modern extradition treaty that we have with so many other of our significant allies in combating terrorism and crime. We are now at the stage where further delay in approving this treaty is threatening an unnecessary strain, if not steps backward, in our critical law enforcement dealings with the United Kingdom.
We have appreciated the opportunity -- in the prior hearing, in our responses to the thoughtful questions for the record posed by members of the Committee, and in my testimony today -- to respond to the various objections and criticisms of the treaty. I believe that each of these has now been addressed, and should not prevent this Committee from approving the treaty. The Department of Justice believes that this treaty will significantly improve our extradition relationship with the United Kingdom – and protect our citizens -- without undermining in any way the commitment of the United States to the protection of constitutional rights for all Americans. The Department therefore respectfully urges this Committee to approve the treaty as soon as possible.
I would be happy to answer any questions the Committee may have.