Letter

ACLU Letter to the Senate Foreign Relations Committee Urging Opposition to Ratification of the Revised United States-United Kingdom Extradition Treaty Signed by Attorney General John Ashcroft and Home Secretary David Blunkett

Document Date: December 18, 2003

Hon. Richard G. Lugar, Chairman
Hon. Joseph R. Biden, Ranking Member
Senate Foreign Relations Committee

Re: Revised United States-United Kingdom Extradition Treaty

Dear Senators Lugar and Biden:

On behalf of the American Civil Liberties Union and its more than 400,000 members, we urge you to oppose ratification of the new extradition treaty between the United States and the United Kingdom that was signed by Attorney General John Ashcroft and Home Secretary David Blunkett on March 31, 2003.[1]

The treaty contains alarming court-stripping provisions, which threaten the fundamental due process rights of Americans and others accused of crimes by the British government. Most troubling, article 4(3) eliminates the American judiciary’s role in determining whether an extradition request should be denied on the basis of the political offense exception. Under the treaty, the Executive Branch, i.e., the Department of Justice, is given sole discretion to determine whether this exception applies.

The political offense exception to extradition has a centuries-old pedigree that protects Americans and others from political, religious or other impermissible persecution. The exception ensures that the United States does not unwittingly become the agent of punishment for a government’s political opponents and dissidents. The exception also ensures the interests of the United States by safeguarding its neutrality in the political affairs of other countries. The exception is a general bar on extradition of alleged offenders who are sought for protected political activity, regardless of their ideology.

The ACLU agrees that terrorists and others who use violence against innocent civilians should find no haven in the United States. However, eliminating judicial review of the political offense exception is not necessary to ensure the extradition of suspected terrorists. American and international law provide that those who commit war crimes, crimes against humanity or who aid or commit terrorist acts against innocent civilians for political or ideological ends do not enjoy the benefits of the political offense exception.

The current extradition treaty with the United Kingdom, adopted in 1972, was amended by a Supplemental Treaty, ratified in 1986, that narrowed the political offense exception. The Supplemental Treaty, as originally proposed in 1985, would have eliminated any judicial role for determining whether any offense was a political offense. A firestorm of criticism greeted that proposal as opening the door to wholesale harassment of Irish American and other critics of British government policies, and the Senate refused to ratify it. Instead, a Supplemental Treaty was negotiated that excluded serious violent crimes from the political offense exception while ensuring judicial review to allow consideration of whether the accused would receive a fair trial in the United Kingdom.

The Senate Foreign Relations Committee described the 1986 Supplement Treaty as a successful “”effort to balance anti-terrorism concerns and the right of due process for individuals.””[2] Senator Biden explained, in a colloquy with Senators Kerry and Lugar that was adopted in the report accompanying the treaty, that the Senate intended the Supplemental Treaty to allow for broader judicial review:

[T]he defendant will have an opportunity in Federal court to introduce evidence that he or she would personally, because of their race, religion, nationality or political opinion, not be able to get a fair trial because of the court system or any other aspect of the judicial system in a requesting country, or that the person’s extradition has been requested with a view to try or punish them on account of their race, their religion, nationality or political opinion.[3]

The new treaty would undo this compromise by eliminating this review. If the new treaty were ratified, an American who opposed British policy – for example, an investigative journalist who wrote of police abuses in Northern Ireland for an Irish American newspaper – could face arrest and extradition without having any ability to challenge, in an American court, whether the criminal charges are really a pretext for the punishment on account of race, religion, nationality or political opinion.

While the treaty preserves the courts’ role in reviewing whether there is probable cause that the accused committed the crime, the “”probable cause”” standard is a low one and depends on information supplied by the foreign government. Such information may be difficult for the accused to rebut. For an extradition hearing to be meaningful, the accused must also be able to submit information about the improper political motivation of the extradition request, and an American judge must be free to consider such evidence.

Preservation of the political offense exception is an important bulwark for freedom in the world. Since the time of Thomas Jefferson, the United States has refused extradition requests for political offenses. Indeed, in the Declaration of Independence, the colonists accused King George of “”transporting us beyond Seas to be tried for pretended offences.”” That principle applies with equal force today, no less than in 1776. No one in America should be sent to face trial in any foreign country without meaningful judicial review of all aspects relevant to extradition.

The treaty contains other deeply troubling provisions. These include provisions which eliminate the statute of limitations as a defense to extradition (article 6), allow for “”provisional arrests”” for as long as sixty days with no formal extradition request providing supporting details (article 12), and which allow for the treaty to be applied retroactively (article 22).

While the United Kingdom is a close ally and democratic country, Attorney General Ashcoft announced at the signing ceremony that the new treaty “”should serve as a model to the world”” and could lead to revising other extradition treaties.[4] As a result, Senate approval of this treaty could encourage the Administration to pursue treaties with other nations that diminish due process and meaningful judicial review.

Without a meaningful political offense exception as a part of our extradition laws, the United States could well lose its place as a haven for the persecuted. In the early days of the Cuban revolution – before the United States broke off diplomatic relations with Fidel Castro – the political offense exception prevented the return of Cuban dissidents to face criminal charges by the Castro regime.[5] The political offense exception also sheltered a Greek public official from being sent back to face corruption allegations that resulted from his opposition to the takeover of his town by a Communist party government.[6]

The Senate should stand in favor of meaningful judicial review of political offenses, and should reject this treaty.

Sincerely,

Laura W. Murphy
Director, Washington Legislative Office

Timothy H. Edgar
Legislative Counsel

cc: Members of the Senate Foreign Relations Commit

[1] The treaty has not been formally submitted to the Senate for ratification, but its text is available at: http://www.iauc.org/USExtradition_210503.pdf .

[2] In re Smyth, 61 F.3d 711, 715 (9th Cir. 1995) (quoting S. Exec. Rep. No. 17, 99th Cong., 2d Sess., 3 (1986)).

[3] Id. (quoting S. Exec. Rep. No. 17 at 4-5).

[4] Attorney General Ashcroft’s remarks at the signing ceremony are available at: http://www.usdoj.gov/ag/speeches/2003/033103agremarksus_ukextraditiontreaty.htm

[5] Ramos v. Diaz, 179 F. Supp. 459 (S.D. Fl. 1959).

[6] In re Mylonas, 187 F. Supp. 716 (N.D. Ala. 1960).

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