[Senate Executive Report 109-19]
[From the U.S. Government Publishing Office]
109th Congress Exec. Rept.
SENATE
2d Session 109-19
======================================================================
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED
KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (TREATY DOC. 108-23)
_______
September 20, 2006.--Ordered to be printed
_______
Mr. Lugar, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 108-23]
The Committee on Foreign Relations, to which was referred
the Extradition Treaty between the United States of America and
the United Kingdom of Great Britain and Northern Ireland, and
related exchanges of letters, signed at Washington on March 31,
2003 (Treaty Doc. 108-23) (hereafter the ``Treaty''), having
considered the same, reports favorably thereon with one
understanding, two declarations, and three provisos as
indicated in the resolution of advice and consent, and
recommends that the Senate give its advice and consent to
ratification thereof, as set forth in this report and
accompanying resolution of advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background and Summary...........................................2
III. Implementing Legislation.........................................4
IV. Committee Action.................................................4
V. Committee Recommendation and Comments............................5
VI. Resolution of Advice and Consent to Ratification.................8
VII. Appendix........................................................11
I. Purpose
The United States is currently a party to over 100
bilateral extradition treaties, including a treaty with the
United Kingdom (U.K.). The existing treaty was signed in 1972,
entered into force in 1977, and was amended by a Supplementary
Treaty that entered into force in 1986. The Treaty, which
replaces the 1972 treaty, is consistent with modern U.S.
extradition practices and other U.S. extradition treaties
approved by the Senate in the last decade and would strengthen
law enforcement cooperation between our two countries.
II. Background and Summary
Extradition--a legal mechanism for returning a fugitive to
a country where he faces charges or has already been
convicted--is a critical law enforcement tool, facilitating the
prosecution of serious crimes, including terrorism and other
violent offenses, trafficking in persons, drug offenses, and
large-scale financial crimes. The United Kingdom is a key law
enforcement and counterterrorism partner of the United States.
Recent events, including the foiling of a terrorist plot
targeting civil aircraft scheduled to fly between the United
Kingdom and the United States, have underscored the importance
of this relationship.
The Treaty was signed in Washington on March 31, 2003, and
was transmitted to the Senate for advice and consent to
ratification on April 19, 2004.
A detailed article-by-article discussion of the Treaty may
be found in the Letter of Submittal from the Secretary of State
to the President, which is reprinted in full in Treaty Document
108-23. A summary of the key provisions of the Treaty is set
forth below.
Article 2 of the Treaty contains a modern ``dual
criminality'' provision defining extraditable offenses as those
punishable under the laws in both states by deprivation of
liberty of 1 year or more or by a more severe penalty. This
type of provision is common in modern extradition treaties, and
is less restrictive than the existing treaty, which permits
extradition only for offenses listed in the 1972 treaty, or in
cases where the offense is considered extraditable under
domestic U.K. extradition law and is a felony under U.S. law.
The dual criminality approach in the new Treaty ensures that
new criminal offenses will be covered as they are criminalized
by both parties, without a need to constantly amend the Treaty.
At the same time, it protects against extradition of an
individual for conduct that would not constitute an offense in
the United States, such as conduct protected under the first
amendment of the U.S. Constitution.
Article 4 of the Treaty addresses political and military
offenses. Paragraph 1 bars extradition for political offenses;
the political offense exception is longstanding under U.S.
extradition practice. Consistent with U.S. policy and practice
in recent years, paragraph 2 of the article excludes certain
crimes of violence from being considered political offenses.
The list of crimes in the Treaty excluded from the political
offense exception is generally similar to the list set forth in
the 1986 Supplementary Treaty with the United Kingdom. The 1986
Supplementary Treaty was the first treaty to so limit the
political offense exception. Since then, such limitations have
become common in bilateral and multilateral extradition
treaties to which the United States is a party, because an
international norm has emerged that terrorism and other crimes
of violence are unacceptable as a political tactic.
In approving this narrowing of the political offense
exception in 1986, the Senate added a provision to the
Supplementary Treaty precluding extradition of an individual
for an offense that was excluded from the political offense
exception if that person proved to a U.S. court by a
preponderance of the evidence that the extradition request
itself was made with a view to try or punish such person on
account of his race, religion, nationality, or political
opinions, or that he would be prejudiced at trial or punished,
detained, or restricted in his personal liberty by reason of
his race, religion, nationality, or political opinions. No
other U.S. extradition treaty negotiated before or since that
time authorizes judicial review of the motivation of a state to
seek extradition. Rather, all other treaties permit review of
claims of political motivation to be made by the Secretary of
State. Article 4, paragraph 3 of the new Treaty prohibits
extradition where the competent authority of the requested
state determines that the request was politically motivated,
and consistent with other U.S. extradition treaties, provides
that such determinations will be made by the executive branch.
The determination of a claim of political motivation is
distinct from the determination of application of the political
offense exception, which will continue to be made by the U.S.
judiciary, consistent with U.S. law. The committee has included
an understanding in the resolution of advice and consent that
addresses this point (see section V below). Finally, paragraph
4 provides that a requested state may refuse extradition for
offenses under military law that are not offenses under
ordinary criminal law. This type of provision is common to
extradition treaties; the power to make such decisions is
assigned to the executive branch.
Article 6 of the Treaty provides that the decision whether
to grant an extradition request shall be made without regard to
any statute of limitations in either state. This provision
reflects modern U.S. extradition policy that statutes of
limitations claims are best addressed by the court of
jurisdiction following surrender. It does not preclude a person
from raising any available statute of limitations defense in
that venue.
Article 8 of the Treaty addresses the documentation
required in support of extradition requests. Under the current
treaty, the requesting party must present evidence that would
justify the committal of the fugitive for trial under the law
of the requested party. This meant, in practice, that in
seeking fugitives from the United Kingdom, the United States
had to present a prima facie case, a requirement that often
proved to be burdensome. The new Treaty does not set forth a
specific burden of proof for requests to the United Kingdom.
Under a domestic U.K. law, the evidentiary standard for
extradition requests by some countries has been eased to one
that U.K. officials have described as similar to the U.S.
standard of probable cause. This lower U.K. standard has been
applied to United States extradition requests to the United
Kingdom since January 2004, when the United Kingdom designated
the United States as eligible for this standard under its
domestic extradition law in anticipation of U.S. ratification
of the Treaty. U.S. ratification would ensure continued
application of the less burdensome standard for the United
States. For requests made by the United Kingdom to the United
States, evidence sufficient to meet the probable cause standard
will still be required, as set forth in article 8(3)(c) of the
new Treaty and under applicable U.S. case law.
Article 12 of the Treaty addresses provisional arrests in
urgent circumstances, and streamlines the process by permitting
requests to be transmitted directly between the U.S. Department
of Justice and the U.K. competent authority. The duration of
provisional arrest permitted under the new Treaty (60 days) is
identical to the current treaty. The information required to be
provided in such requests follows the example of treaties
recently approved by the Senate. It should be emphasized that
the textual changes in the new Treaty (as compared to the 1972
treaty) are not intended to effect a substantive change to the
standard that applies under the existing treaty for securing
the provisional arrest of an alleged fugitive pending
extradition. The committee agrees with the Department of
Justice that the fourth amendment of the U.S. Constitution
applies to provisional arrests under the 1972 treaty, and under
the new Treaty. Further, the Department indicated in response
to committee questioning that it ``does not anticipate any
substantive change in the type or quantum of evidence that [it]
submit[s] to our courts in support of a request for issuance of
a provisional arrest warrant'' under the new article.
Article 14 of the Treaty permits the requested state to
temporarily surrender for proceedings in the requesting state a
person who is being proceeded against or is serving a sentence
in the requested state. The person is to be kept in custody in
the requesting state and returned upon completion of the
proceedings there. This type of temporary surrender provision
is common in modern extradition treaties and is an important
improvement over the existing 1972 treaty, which specifically
requires that extradition be deferred until the conclusion of
the trial and the full execution of any sentence. The new
Treaty thus allows for prosecution closer in time to commission
of the offense, thereby advancing the goal of securing justice.
Long delays in commencing trial raise the danger that witnesses
will no longer be available or that their memories will fade.
III. Implementing Legislation
No new implementing legislation is required for the Treaty.
The Treaty will be implemented consistent with an existing body
of Federal law, including the provisions of Chapter 209 of
Title 18, United States Code.
IV. Committee Action
The Committee on Foreign Relations held two public hearings
on the Treaty, on November 15, 2005, and July 21, 2006, at
which it received testimony from the Departments of State and
Justice, and from private sector witnesses, including opponents
of the Treaty. (Transcripts of these hearings and questions and
answers for the record may be found in S. Hrg. 109-352 and S.
Hrg. 109-570, which are forthcoming.) The witnesses who
testified are as follows:
NOVEMBER 15, 2005
Mr. Samuel M. Witten, Deputy Legal Adviser, Department of State
Ms. Mary Ellen Warlow, Director, Office of International
Affairs, Criminal Division, Department of Justice
JULY 21, 2006
Mr. John J. Meehan, Jr., National President, Ancient Order of
Hibernians in America
Dr. Robert C. Linnon, National President, Irish American Unity
Conference
Prof. Madeline Morris, Duke University Law School
Mr. Paul J. McNulty, Deputy Attorney General, Department of
Justice
Mr. Samuel M. Witten, Deputy Legal Adviser, Department of State
In addition, the committee invited Professor Francis A.
Boyle of the University of Illinois College of Law at Urbana-
Champaign to testify at the hearing on July 21, 2006. Professor
Boyle was unable to attend the hearing because his flight to
Washington was canceled due to inclement weather, but his
written testimony was entered into the hearing record.
On September 7, 2006, the committee considered the Treaty
and ordered it favorably reported by voice vote with no
objections and with a quorum present, with the recommendation
that the Senate give its advice and consent to ratification,
subject to the understanding, declarations, and provisos
contained in the resolution of advice and consent.
V. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
proposed Treaty is in the interest of the United States and
urges the Senate to act promptly to give advice and consent to
ratification.
The committee carefully considered areas of concern raised
by critics of the Treaty, and has addressed several of these
issues in the resolution of advice and consent, consistent with
the underlying international legal obligations of the Treaty.
The executive branch has reviewed and concurs with each
understanding, declaration and proviso in the resolution.
The committee has included in the resolution of advice and
consent an understanding relating to article 4, paragraphs 3
and 4 of the Treaty. Paragraph 3 precludes extradition where
the competent authority of the requested state determines that
the request was politically motivated. Paragraph 4 provides
that the competent authority of the requested state may refuse
extradition for offenses under military law that are not
offenses under ordinary criminal law. Each paragraph further
states: ``In the United States, the executive branch is the
competent authority for the purposes of this Article.'' The
executive branch confirmed that the parties intended that the
words ``for the purposes of this article'' apply only to these
specific paragraphs. The understanding in the resolution of
ratification sets forth that interpretation, which is binding
on the executive branch. The understanding also states that the
quoted sentence in paragraphs 3 and 4 does not alter or affect
the role of the United States judiciary under U.S. law in
making certifications of extraditability (under section 3184 of
Title 18, United States Code), and in determining the
application of the political offense exception.
The committee has also included two declarations in the
resolution of advice and consent. Concerns were expressed in
the hearing in July 2006 that the Treaty could be used to
extradite persons from the United States for conduct protected
by the first amendment of the U.S. Constitution, and that the
Treaty would remove from the U.S. judiciary the determination
of extraditability. As noted above in the discussion of article
2, the dual criminality provisions of that article would not
permit extradition of persons for conduct protected by the
first amendment because such conduct would not constitute a
criminal offense in the United States. Additionally, nothing in
the Treaty changes U.S. law that requires a judicial
determination of extraditability--specifically section 3184 of
title 18 of the United States Code--prior to the surrender of
the fugitive to the foreign state. The committee determined
that it would be appropriate to address these concerns by
including declarations addressing the relationship of the
Treaty to the U.S. Constitution and relevant U.S. law. The
first declaration states that nothing in the Treaty requires or
authorizes legislation or other action by the United States
that is prohibited by the U.S. Constitution. Although Article
VI of the U.S. Constitution provides that all treaties made
shall be the ``supreme Law of the Land,'' the Supreme Court has
made clear that a treaty cannot violate the Constitution. ``It
would be manifestly contrary to the objectives of those who
created the Constitution, as well as those who were responsible
for the Bill of Rights--let alone alien to our entire
constitutional history and tradition--to construe Article VI as
permitting the United States to exercise power under an
international agreement without observing constitutional
prohibitions.'' Reid v. Covert, 354 U.S. 1, 17 (1957). This
declaration reflects that constitutional principle. The second
declaration states that the Treaty shall be implemented by the
United States in accordance with the U.S. Constitution and
relevant Federal law, including the requirement of a judicial
determination of extraditability that is set forth in title 18
of the United States Code.
The committee has included three provisos in the resolution
of advice and consent. The first proviso clarifies the intent
of the Treaty. It recognizes that concerns have been expressed
that the purpose of the Treaty is to seek the extradition of
individuals involved in offenses relating to the conflict in
Northern Ireland prior to the Belfast Agreement of April 10,
1998. Also known as the Good Friday Agreement, the Belfast
Agreement was a joint effort of governments of the United
Kingdom and the Republic of Ireland, and the major political
parties in Northern Ireland, to resolve the decades-long
conflict by formulating a means for local government based on a
power-sharing arrangement. As part of the peace process, the
Provisional Irish Republican Army agreed to a cease-fire in the
1990s, and last year declared an end to the armed campaign. In
connection with the Belfast Agreement, the Government of the
United Kingdom provided a mechanism for early release for
individuals convicted of terrorist-related offenses committed
before April 10, 1998. In 2000, the U.K. Government announced
that it would no longer pursue extradition of individuals who
appear to qualify for the early release plan under the Belfast
Agreement, and it has since restated and expanded upon this
position, most recently in September 2006.
In light of these developments, the proviso makes clear the
Senate's understanding that the purpose of the Treaty is to
strengthen law enforcement cooperation between the United
States and the United Kingdom by modernizing the extradition
process for all serious offenses and that it is not intended to
reopen issues addressed in the Belfast Agreement or to impede
any further efforts to resolve the conflict in Northern
Ireland. In this regard, the Senate notes with approval the
September 29, 2000, statement of the United Kingdom Secretary
of State for Northern Ireland that the United Kingdom does not
intend to seek the extradition of individuals who appear to
qualify for early release under the Belfast Agreement, as well
as a subsequent letter from the U.K. Home Secretary dated March
2006, and an exchange of letters between the U.K. Secretary of
State for Northern Ireland and the U.S. Attorney General dated
September 2006, reconfirming this position and the intent of
the United Kingdom to ``address the anomalous position of those
suspected but not yet convicted of terrorism-related offenses
committed before the Belfast Agreement.'' The full text of the
September 2000 statement and the 2006 letters are printed in
the Appendix to this report.
The second proviso addresses a provision of recently
enacted United Kingdom domestic law that may allow for the
retrial in the United Kingdom, in certain limited
circumstances, of an individual who has been previously tried
and acquitted in that country in a manner that would not be
permitted in the United States under the Double Jeopardy clause
of the U.S. Constitution. Although U.S. courts have indicated
that extradition in such contexts is not barred, and although
retrial or prosecution appeal after acquittal is often
permitted in European countries with civil law traditions, it
is uncommon in the Anglo-American system. Accordingly, the
committee sought to call attention to the provision. The
proviso notes that, although the Treaty does not address this
situation, it is the understanding of the Senate that under
U.S. law and practice a person sought for extradition can
present a claim to the Secretary of State that an aspect of
foreign law that may permit retrial may result in an unfairness
that the Secretary could conclude warrants denial of the
extradition request. It urges the Secretary to carefully review
any such claims involving a request for extradition in the rare
case where this provision of United Kingdom domestic law is
implicated.
In order to facilitate committee oversight of U.S.
implementation of the Treaty, the third proviso calls on the
Secretary of State to submit to the committee, within 1 year of
entry into force of the Treaty and annually thereafter for the
next 4 years, a report containing specified information
regarding implementation. The report is to contain, for each
12-month period: The number of persons arrested in the United
States pursuant to requests from the United Kingdom under the
Treaty, including the number of persons subject to provisional
arrest; a summary description of the alleged conduct for which
the United Kingdom is seeking extradition; the number of
requests granted; the number of requests denied, including
whether the request was denied as a result of a judicial
decision or a decision of the Secretary of State; the number of
instances the person sought for extradition made a claim to the
Secretary of State of political motivation, unjustifiable
delay, or retrial after acquittal and whether such extradition
requests were denied or granted; and the number of instances
the Secretary granted a request under article 18(1)(c) to waive
the rule of specialty.
VI. Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDING,
DECLARATIONS, AND PROVISOS
The Senate advises and consents to the ratification of the
Extradition Treaty between the United States of America and the
United Kingdom of Great Britain and Northern Ireland, and
related exchanges of letters, signed at Washington on March 31,
2003 (hereinafter in this resolution referred to as the
``Treaty'') (Treaty Doc. 108-23), subject to the understanding
in section 2, the declarations in section 3, and the provisos
in section 4.
SECTION 2. UNDERSTANDING
The advice and consent of the Senate under section 1 is
subject to the following understanding:
Under United States law, a United States judge makes
a certification of extraditability of a fugitive to the
Secretary of State. In the process of making such
certification, a United States judge also makes
determinations regarding the application of the
political offense exception. Accordingly, the United
States of America understands that the statement in
paragraphs 3 and 4 of Article 4 that ``in the United
States, the executive branch is the competent authority
for the purposes of this Article'' applies only to
those specific paragraphs of Article 4, and does not
alter or affect the role of the United States judiciary
in making certifications of extraditability or
determinations of the application of the political
offense exception.
SECTION 3. DECLARATIONS
The advice and consent of the Senate under section 1 is
subject to the following declarations:
(1) Nothing in the Treaty requires or authorizes
legislation or other action by the United States of America
that is prohibited by the Constitution of the United States.
(2) The Treaty shall be implemented by the United States in
accordance with the Constitution of the United States and
relevant federal law, including the requirement of a judicial
determination of extraditability that is set forth in Title 18
of the United States Code.
SECTION 4. PROVISOS
The advice and consent of the Senate under section 1 is
subject to the following provisos:
(1)(A) The Senate is aware that concerns have been
expressed that the purpose of the Treaty is to seek the
extradition of individuals involved in offenses relating to the
conflict in Northern Ireland prior to the Belfast Agreement of
April 10, 1998. The Senate understands that the purpose of the
Treaty is to strengthen law enforcement cooperation between the
United States and the United Kingdom by modernizing the
extradition process for all serious offenses and that the
Treaty is not intended to reopen issues addressed in the
Belfast Agreement, or to impede any further efforts to resolve
the conflict in Northern Ireland.
(B) Accordingly, the Senate notes with approval--
(i) the statement of the United Kingdom Secretary of
State for Northern Ireland, made on September 29, 2000,
that the United Kingdom does not intend to seek the
extradition of individuals who appear to qualify for
early release under the Belfast Agreement;
(ii) the letter from the United Kingdom Home
Secretary to the United States Attorney General in
March 2006, emphasizing that the ``new treaty does not
change this position in any way,'' and making clear
that the United Kingdom ``want[s] to address the
anomalous position of those suspected but not yet
convicted of terrorism-related offences committed
before the Belfast Agreement''; and
(iii) that these policies were reconfirmed in an
exchange of letters between the United Kingdom
Secretary of State for Northern Ireland and the United
States Attorney General in September 2006.
(2) The Senate notes that, as in other recent United States
extradition treaties, the Treaty does not address the situation
where the fugitive is sought for trial on an offense for which
he had previously been acquitted in the Requesting State. The
Senate further notes that a United Kingdom domestic law may
allow for the retrial in the United Kingdom, in certain limited
circumstances, of an individual who has previously been tried
and acquitted in that country. In this regard, the Senate
understands that under U.S. law and practice a person sought
for extradition can present a claim to the Secretary of State
that an aspect of foreign law that may permit retrial may
result in an unfairness that the Secretary could conclude
warrants denial of the extradition request. The Senate urges
the Secretary of State to review carefully any such claims made
involving a request for extradition that implicates this
provision of United Kingdom domestic law.
(3) Not later than one year after entry into force of the
Treaty, and annually thereafter for a period of four additional
years, the Secretary of State shall submit to the Committee on
Foreign Relations of the Senate a report setting forth the
following information with respect to the implementation of the
Treaty in the previous twelve months:
(A) the number of persons arrested in the United
States pursuant to requests from the United Kingdom
under the Treaty, including the number of persons
subject to provisional arrest; and a summary
description of the alleged conduct for which the United
Kingdom is seeking extradition;
(B) the number of extradition requests granted; and
the number of extradition requests denied, including
whether the request was denied as a result of a
judicial decision or a decision of the Secretary of
State;
(C) the number of instances the person sought for
extradition made a claim to the Secretary of State of
political motivation, unjustifiable delay, or retrial
after acquittal and whether such extradition requests
were denied or granted; and
(D) the number of instances the Secretary granted a
request under Article 18(1)(c).
VII. APPENDIX
----------
Home Office,
London SW1P 4DF, March 31, 2006.
Alberto Gonzales,
Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Al: At our meeting on 6 March I said that I would write to
clarify the UK Government's position relating to the extradition of
individuals wanted or convicted of terrorist offences associated with
the Troubles in Northern Ireland who are currently in the United
States.
In September 2000 the Government decided that it was no longer
proportionate or in the public interest to seek the extradition of
individuals convicted of terrorist offences committed prior to 10th
April 1998, the date of the Belfast Agreement. The new treaty does not
change this position in any way.
We have also made it clear that we want to address the anomalous
position of those suspected but not yet convicted of terrorism-related
offences committed before then. Had these individuals been convicted at
the time of their offences they would, by now, have been able to apply
for early release and so find themselves in a similar position to those
already covered by the Agreement. Unfortunately, the legislation that
would have resolved this anomaly had to be withdrawn due to a lack of
cross-party support.
However, the British Government remains keen to make progress on
this and I can assure you that when the new treaty was being
negotiated, there was no intention on our part to make it easier to
target these people, whose position we accept to be anomalous.
Charles Clarke,
Home Secretary.
______
Northern Ireland Office,
Belfast BT4 3TT, September 4, 2006.
Alberto Gonzales,
Attorney General, U.S. Department of Justice,
Washington, DC.
Dear Attorney General: I am writing to reiterate the UK
Government's position relating to the extradition of individuals from
the United States in relation to terrorist offences committed during
the Troubles in Northern Ireland.
In September 2000, the Government decided that it was no longer
proportionate or in the public interest to seek the extradition of
individuals convicted of terrorist offences prior to 10th April 1998,
``who appear to qualify for early release under the Good Friday
Agreement scheme, and who would, on making a successful application to
the Sentence Review Commissioners, have little if any of their original
prison sentence to serve.'' I attach a copy of the statement made by
the then Secretary of State for Northern Ireland when this decision was
announced. I know that the former Home Secretary reiterated this when
he wrote to you in March this year. I can confirm, on behalf of the UK
Government, that this remains the case.
We have also made it clear that we want to address the anomalous
position of those suspected but not yet convicted of terrorism-related
offences committed before the Belfast Agreement. Had these individuals
been convicted at the time of their offences they would, by now, have
been able to apply for early release and so find themselves in a
similar position to those already covered by the Agreement. The UK
Government introduced legislation to resolve this anomaly last year.
Unfortunately, that legislation had to be withdrawn due to a lack of
cross-party support. However, the UK Government continues to accept
that the position of these people is anomalous and I can assure you, as
the former Home Secretary did in March, that when the new treaty was
being negotiated there was no intention on our part to make it easier
to target them. I attach a short note which explains in more detail the
provisions of the early release scheme and the position of various
groups of people.
It remains a matter of great importance to the UK Government that
the extradition treaty should be ratified by the United States, so that
its benefits can be fully realised. This is not because of any agenda
related to Northern Ireland, but because of the improvements that the
updated treaty will bring to the extradition process in general in both
countries. My colleague, John Reid, the Home Secretary, has seen this
letter and agrees fully with its contents.
I am copying this letter to Senator Lugar. Both you and he are
welcome to share it with other members of the Senate if that would be
helpful.
The Rt. Hon. Peter Hain MP,
Secretary of State for Northern Ireland.
Enclosures.
US-UK Extradition Treaty--Northern Ireland Issues
Political Background
The political and security situation in Northern Ireland has been
transformed following the 1998 Good Friday Agreement. A huge amount of
progress has been made since then, including the historic statement
from the Provisional IRA in July 2005, in which they made clear that
their armed campaign was over. The focus in Northern Ireland today is
on restoring devolved Government and continuing to build a prosperous
and peaceful society.
Good Friday Agreement and Early Release Scheme
As part of the Good Friday Agreement (GFA), individuals convicted
of terrorist-related offences committed before 1998 were able to apply
for early release after serving only two years of their sentences. Over
400 prisoners have been released on license under this scheme. The
license requires that individuals do not become re-engaged in terrorism
or serious crime. Those released include many members of the
Provisional IRA, which has maintained a ceasefire during this time. The
Early Release Scheme was a very difficult part of the Good Friday
Agreement for many people to accept, but it demonstrated the UK
Government's commitment to moving forward with the peace process.
The Early Release Scheme is part of UK law and remains in force.
Any individuals who are convicted of qualifying, pre-1998 offences in
the future, including any individuals extradited to the UK, will be
able to apply for the scheme.
Individuals convicted of pre-GFA offences
In 2000, the UK Government announced that it would no longer pursue
the extradition of individuals convicted of pre-1998 offences who had
escaped from prison and who would, if they returned to Northern Ireland
and successfully applied for early release, have little if any of their
time left to serve. That remains the position.
Individuals suspected of pre-GFA offences (``on the runs'')
Whilst the Early Release Scheme addressed the situation of
individuals who had been convicted of past offences, there remained an
anomaly in relation to individuals suspected of past offences, who had
gone ``on the run'' before they were tried. The British Government
accepts that these individuals are in an anomalous position since, if
they had been convicted before 1998 they could have been released by
now under the terms of the Good Friday Agreement.
In 2003, the British Government therefore published proposals for a
scheme which would have allowed suspects ``on the run'' to be tried in
their absence and to return to Northern Ireland without arrest or
imprisonment. Following the IRA's statement that its armed campaign was
over in July 2005, legislation was introduced to implement that
commitment.
Agreement could not be reached on that legislation during its
passage through Parliament and it was withdrawn in January 2006. The
British Government is currently reflecting on the way forward. However,
as the 2003 proposals and the subsequent legislation demonstrate, the
British Government is committed to addressing these cases in a way
which resolves the anomaly.
In the absence of any change in the law, decisions on whether to
seek the extradition of suspects ``on the run'' for pre-1998 offences
are still taken by the prosecuting authorities, in line with the legal
obligations on them, as part of the normal criminal justice process.
But, as the UK Government's decision in 2000 not to pursue the
extradition of convicted fugitives (including in the United States) who
would qualify for early release under the GFA illustrates, there is no
``political'' agenda to pursue the extradition and trial of these
people. And any suspects who were extradited and subsequently convicted
would be able to apply for early release after two years, under the
terms of the Good Friday Agreement.
Other individuals
Anyone convicted of an offence unconnected with terrorism, or an
offence committed after the Good Friday Agreement, will not be eligible
for the Early Release Scheme. The UK law enforcement authorities
continue to seek the extradition of such individuals in line with UK
law.
Outstanding warrants
When Home Office Minister Baroness Scotland visited the US, she
explained that there were currently no outstanding warrants for the
extradition of individuals from the US to Northern Ireland.
Secretary of State,
Northern Ireland Office,
September 29, 2000.
Statement by Peter Mandelson on Extradition of Convicted Fugitives
On 28 July, all remaining prisoners eligible under the early
release scheme who had completed 2 years of their sentences were
released as envisaged in the Good Friday Agreement.
The completion of these remaining releases has implications for a
number of people who were sentenced to imprisonment for offences
committed before the Good Friday Agreement, but who failed to complete
these sentences. In most cases those concerned escaped from custody and
fled to other countries up to 20 years ago. In many cases, extradition
proceedings were initiated and in some of these the government is now
being pressed by Court authorities to clarify its position.
Whether to pursue an extradition request depends on the public
interest at stake, including the remaining sentence which the fugitive
would stand to serve if he or she were returned. It is clearly
anomalous to pursue the extradition of people who appear to qualify for
early release under the Good Friday Agreement scheme, and who would, on
making a successful application to the Sentence Review Commissioners,
have little if any of their original prison sentence to serve.
In view of this and the time that has elapsed, I do not believe
that it would now be proportionate or in the public interest to
continue to pursue such cases.
If these individuals wish to benefit from the early release scheme,
they will be able to return to Northern Ireland and make an application
to the Sentence Review Commissioners. If this is granted, normal
licence conditions, including liability to recall to prison, will
apply. The decision has no implications for the prosecution of other
offences where sufficient evidence exists. It is not an amnesty.
As with the rest of the early release programme, I do not under-
estimate the hurt this decision may cause the victims of those whose
extradition will no longer be pursued, and the onus it places on all of
us to ensure that the Good Friday Agreement does result in a permanent
peace in which there are no more victims.
______
Office of the Attorney General,
Department of Justice,
Washington, DC, September 5, 2006.
The Rt. Hon. Peter Hain,
Secretary of State for Northern Ireland,
Northern Ireland Office, London SW1P 4PN.
Dear Secretary Hain: I am writing in response to your recent letter
regarding the 2003 United States-United Kingdom extradition treaty.
I appreciate your reconfirmation of the position of the Government
of the United Kingdom (originally taken in September 2000) that it is
``no longer proportionate or in the public interest to seek the
extradition of individuals convicted of terrorist offences prior to
10th April 1998, `who appear to qualify for early release under the
Good Friday Agreement scheme, and who would, on making a successful
application to the Sentence Review Commissioners, have little if any of
their original prison sentence to serve.' '' Additionally, you have
reconfirmed that it was not the intention of your Government, in
negotiating this Treaty, to make it easier for the UK to seek
extradition of individuals suspected of committing terrorist offenses
in Northern Ireland prior to April 10, 1998.
Please accept this letter as my acknowledgement of your
Government's official position and our mutual understanding of these
matters. I believe that we share the view that the 2003 Treaty is
critical to our mutual security in this age of global terrorism and
transnational crime. Accordingly, the Bush Administration has made it a
priority to seek the Senate's advice and consent to ratification of
this Treaty. To that end, I will ask the Senate Foreign Relations
Committee to include your letter, and this reply, in the official
record of the Committee's consideration of the Treaty.
Sincerely,
Alberto R. Gonzales,
Attorney General.