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March
4 , 2004
Honorable
Richard G. Lugar, Chairman
Honorable
Joseph A. Biden, Ranking Member
Senate
Foreign Relations Committee
Re:
Proposed United States-United Kingdom Extradition
Treaty
Dear
Senators Lugar and Biden:
I.
I
am in receipt of an undated document entitled "Response
by the U.S. Department of State and the U.S. Department
of Justice to Points Raised by the Irish-Americans
Against Extradition Petition." I wish to thank
you for your kind consideration in obtaining this
formal Response to some of these concerns about
the proposed U.S.-U.K. Extradition Treaty from the
Department of State and the Department of Justice.
As a preliminary matter, I fully concur with the 18
December 2003 Letter already sent to you by Ms. Laura
W. Murphy, Director of the ACLU Washington Legislative
Office and Mr. Timothy H. Edgar ACLU Legislative Counsel,
which was also sent to all Members of the Senate Foreign
Relations Committee on behalf of the American Civil
Liberties Union. Articles 2 and 4 of the proposed
Treaty will gut, destroy and eliminate the longstanding,
time-honored, and well-grounded "political offense"
exception to U.S. extradition law and practice in
all but the name.
The
United States of America was founded by means of a
Declaration of Independence and a Revolutionary War
fought against the British Crown, with which this
proposed Treaty is to be concluded. But under the
terms of this proposed Treaty, our Founding Fathers
and Mothers such as John Hancock, George Washington,
Thomas Jefferson, James Madison, Ben Franklin, John
Adams, and Dolly Madison, inter alia, would be extradited
to the British Crown for prosecution of their very
revolutionary activities that founded the United States
of America itself. Because of our Republic's unique
historical origins and background, special care, concern,
attention, and consideration must be taken with respect
to the conclusion of any extradition treaty between
the United States of America and the British Crown.
II.
It
is obvious from the text of this proposed Treaty that
it is directed primarily against Irish American citizens
engaged in the lawful exercise of their constitutional
rights under the First Amendment to the United States
Constitution in order to protest the longstanding
military occupation of six counties in Ireland by
the British Crown in violation of the international
legal right of the Irish People to self-determination
as well as of the United Nations Declaration on the
Granting of Independence to Colonial Countries and
Territories, Resolution 1514(XV) of 14 December 1960,
which constitutes customary international law and
jus cogens. See Francis A. Boyle, The
Decolonization of Northern Ireland, 4 Asian Yearbook
of International Law 25-46 (1995), a copy of which
is attached. In particular, the inchoate crimes specified
in article 2(2) and article 4(2)(g) of the proposed
Treaty would make extraditable to the British Crown
Irish American citizens who are exercising their rights
under the First Amendment to the United States Constitution
to protest the continued British military occupation
of these six counties in Ireland as well as the deplorable
human rights violations that have historically been
inflicted by the British Crown upon Irish Catholics
living in the north of Ireland, in the rest of Ireland,
as well as within Great Britain itself and elsewhere.
Moreover,
because of the court-stripping provisions found in
article 2(4), article 2(5), article 4(3), article
4(4), article 5(3), article 7, article 18(1)(c), and
article 18(2) of the proposed Treaty, there would
be no judicial review by a U.S. Federal Court of the
exercise of such First Amendment rights under the
U.S. Constitution by Irish American citizens, and
thus this proposed Treaty would be unconstitutional
for that reason as well. Under the terms of this proposed
Treaty, the First Amendment rights of Irish American
citizens would be subjected to the unfettered discretion
and political biases of Executive Branch officials
who in the past have shown no respect for the First
Amendment rights of Irish American citizens when it
came to the former's infiltration, investigation,
prosecution, and persecution of perfectly lawful Irish
American citizens as well as Irish American humanitarian
organizations and Irish American political groups
who were only exercising their First Amendment rights
under the U.S. Constitution in order to protest the
longstanding military occupation of six counties in
Ireland by the British Crown as well as its campaign
of human rights atrocities against Irish Catholics.
Moreover,
the unconstitutional retroactivity of the proposed
Treaty as set forth in article 22 would render Irish
American citizens subject to extradition to the British
Crown for their perfectly lawful exercise of First
Amendment rights under the U.S. Constitution going
all the way back into the indefinite past to at least
the 1916 Irish Revolution for Independence against
the same British Crown with which this proposed Treaty
is to be concluded. This conclusion is only further
confirmed and strengthened by article 6 of the proposed
Treaty that unconstitutionally purports to eliminate
any Statute of Limitations requirement for extradition
as well.
Furthermore,
such Irish American citizens would be subjected to
unconstitutional preventative detention under article
12 of the proposed Treaty at the behest of the British
Crown in violation of the Fifth Amendment and the
Eighth Amendment to the United States Constitution.
Furthermore, such Irish American citizens could be
unconstitutionally seized and incarcerated pursuant
to article 8(3)(c) and article 12 of the proposed
Treaty at the behest of the British Crown in violation
of the U.S. Constitution's Fourth Amendment prohibition
on "unreasonable searches and seizures" as well as
the Fourth Amendment requirement of "probable cause"
for the issue of any warrants related thereto. Furthermore,
such Irish American citizens would have their property
unconstitutionally confiscated and transferred to
the British Crown pursuant to article 16 of the proposed
Treaty at the behest of the British Crown itself in
violation of the "due process of law" requirement
of the Fifth Amendment to the United States Constitution.
Furthermore,
article 18 of the proposed Treaty eliminates in all
but name the longstanding, time-honored and well-grounded
Rule of Specialty for such Irish American citizens.
In addition, article 18(2) of the proposed Treaty
would permit Irish American citizens extradited to
Britain then to be summarily shipped onward to some
undesignated third state at the order of the British
Crown and the political whim of the Department of
State, where such Irish American citizens could readily
be persecuted by that indeterminate third state. It
becomes crystal clear that the primary purpose of
this proposed Treaty is for the British Crown to target,
threaten, intimidate, harass, persecute and terrorize
Irish American citizens for exercising their First
Amendment rights under the United States Constitution.
III.
Weighing
most decisively against approving this proposed Treaty
is the fact that since the U.S.-U.K. Supplementary
Extradition Treaty came into force in 1986, the United
States became a contracting party to the International
Covenant on Civil and Political Rights in 1992, to
which the United Kingdom is also a contracting party.
This proposed U.S.-U.K. Extradition Treaty will violate
several fundamental provisions of the Covenant that
are expressly designed to protect the basic human
rights of Irish American citizens, inter alia. In
particular, but not limited to, I respectfully call
to your attention the following treaty obligations
and human rights protections under the Covenant that
will be violated by this proposed Treaty:
Article
2(1): "Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction
the rights recognized in the present Covenant,
without distinction of any kind, such as race,
colour, sex, language, religion, political or
other opinion, national or social origin, property,
birth or other status."
Article
2(2): "Each State Party to the present Covenant
undertakes:
To
ensure that any person whose rights or
freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding
that the violation has been committed
by persons acting in an official capacity;
To
ensure that any person claiming such a
remedy shall have his right thereto determined
by competent judicial, administrative
or legislative authorities, or by any
other competent authority provided for
by the legal system of the State, and
to develop the possibilities of judicial
remedy;
To
ensure that the competent authorities
shall enforce such remedies when granted."
Article
9(1): "Everyone has the right to liberty and security
of person."
Article
9(1): "No one shall be subjected to arbitrary
arrest or detention."
Article
9(3): "Anyone arrested or detained on a criminal
charge shall be brought promptly before a judge
or other officer authorized by law to exercise
judicial power and shall be entitled to trial
within a reasonable time or to release."
Article
9(3): "It shall not be the general rule that persons
awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear
for trial. . . ."
Article
9(4): "Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take
proceedings before a court, in order that the
court may decide without delay on the lawfulness
of his detention and order his release if the
detention is not lawful."
Article
9(5): "Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable
right to compensation."
Article
10(1): "All persons deprived of their liberty
shall be treated with humanity and with respect
for the inherent dignity of the human person."
Article
14(1): "All persons shall be equal before the
courts and tribunals. In the determination of
any criminal charge against him, or of his rights
and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a
competent, independent and impartial tribunal
established by law."
Article
14(2): "Everyone charged with a criminal offence
shall have the right to be presumed innocent until
proved guilty according to law."
Article
14(7): "No one shall be liable to be tried or
punished again for an offence for which he has
already been finally convicted or acquitted in
accordance with the law and penal procedure of
each country."
Article
15(1): "No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under national
or international law, at the time when it was
committed."
Article
17(1): "No one shall be subjected to arbitrary
or unlawful interference with his privacy, family,
home, or correspondence, nor to unlawful attacks
on his honour and reputation."
Article
18(1): "Everyone shall have the right to freedom
of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion
or belief of his choice, and freedom, either individually
or in community with others and in public or private,
to manifest his religion or belief in worship,
observance, practice and teaching."
Article
19(1): "Everyone shall have the right to hold
opinions without interference."
Article
19(2): "Everyone shall have the right to freedom
of expression; this right shall include freedom
to seek, receive and impart information and ideas
of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of
art, or through any other media of his choice."
Article
21: "The right of peaceful assembly shall be recognized."
Article
22(1): "Everyone shall have the right to freedom
of association with others. . ."
If
the Senate were to consent to this proposed Extradition
Treaty with the British Crown, that would effectively
abrogate, violate, and set at naught these most basic
human rights of Irish American citizens under the
Covenant, to which the United States is a contracting
party. Furthermore, Senate consent would also place
the United States of America in breach of its solemn
treaty obligations under these provisions of the International
Covenant on Civil and Political Rights with respect
to all the other contracting states parties as well.
Such violations will render the United States subject
to the treaty enforcement mechanisms of the Covenant
as well as to the other ordinary enforcement mechanisms,
remedies, and sanctions for violating a solemnly concluded
international human rights treaty as well as the basic
principle of customary international law and jus
cogens that pacta sunt servanda.
IV.
Most
significantly, on 18 December 2001 the British Crown
formally derogated from its obligations under article
9 of the Covenant, whereas the United States of America
has not so derogated. So long as that U.K. derogation
to article 9 of the Covenant remains in force, there
is no way the United States can lawfully extradite
any Irish American citizen to the British Crown pursuant
to the terms of this proposed Treaty without the United
States government violating its own obligations under
article 2(1) of the Covenant: "Each State Party to
the present Covenant undertakes to respect and to
ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized
in the present Covenant. . . ." The United States
cannot lawfully extradite Irish American citizens
to the British Crown, which has derogated from its
obligations under Covenant article 9, without the
United States itself violating Covenant article 2(1)
and article 9 with respect to its own Irish American
citizens and also with respect to all the other contracting
states parties to the Covenant.
Furthermore,
as a contacting party to the Covenant, the United
States is currently under an obligation not to extradite
Irish American citizens to the United Kingdom where
they will be subjected to gross and repeated violations
of their most basic human rights by the British Crown.
These facts have been most recently documented by
the Nobel Peace Prize Winning Amnesty International,
whose Headquarters and International Secretariat are
located in London, the capital of the United Kingdom.
Since Amnesty International is right there on the
spot, they certainly know of what they speak. See
International Secretariat of Amnesty International,
United Kingdom: Scrap Internment, AI Index:
EUR 45/008/2004 (23 Feb. 2004); Amnesty International,
United Kingdom: A Shadow Criminal Justice System,
AI Index: EUR 45/030/2003 (Public), News Service No:
278 (11 Dec. 2003); Amnesty International, United
Kingdom: Justice Perverted Under the Anti-Terrorism,
Crime and Security Act 2001, AI Index: EUR 45/
029/2003 (11 Dec. 2003); Amnesty International Press
Release, UK.: Basic Rights Denied After 11 September,
ENGEUR 45019 2002 (25 Feb. 2004); Amnesty International,
United Kingdom: Rights Denied: The UK's Response
to 11 September 2001, AI Index: EUR 45/016/2002
(5 Sept. 2002); Amnesty International, United Kingdom:
Amnesty International's Memorandum to the UK Government
on Part 4 of the Anti-terrorism, Crime and Security
Act 2001, AI Index: EUR 45/017/2002 (5 Sept.2002).
In
light of this most extensive documentation by Amnesty
International of massive violations of the most basic
human rights of foreigners by the British Crown under
the International Covenant on Civil and Political
Rights, to which the United States is a contracting
party, under the European Convention on Human Rights,
under the U.N. Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,
to which the United States is a contracting party,
and under other basic sources of both customary and
conventional international human rights law too numerous
to list here but identified, analyzed, and condemned
authoritatively by the International Secretariat of
Amnesty International headquartered in London itself,
now is certainly not the time for the United States
to conclude this proposed Extradition Treaty with
the British Crown. According to Amnesty International,
there currently exists a grave human rights emergency
for foreigners in the United Kingdom that is quickly
degenerating into a human rights catastrophe. Certainly
the United States Senate must not subject Irish American
citizens to these massive violations of their most
fundamental human rights currently being inflicted
on a daily basis by the British Crown against foreigners,
as authoritatively documented by Amnesty International
itself. And the human rights emergency/catastrophe
in the United Kingdom for foreigners is getting worse
every day. See, e.g., Alan Cowell, Britain,
Citing Terrorist Threat, Plans to Expand Its Spy Agency,
New York Times, Feb. 26, 2004 (U.K. government proposals
for secret trials and reducing the "proof beyond a
reasonable doubt" standard for criminal convictions).
The United States Senate must not risk subjecting
Irish American citizens to secret trials, kangaroo
courts, and a less-than-reasonable-doubt standard
for criminal convictions by the British Crown. The
odious infamy of Britain's Star-Chamber and Diplock
Courts shall live forever in the annals of American
Jurisprudence.
V.
Finally,
even if the U.S. Senate were to amend article 3 of
the proposed Treaty so as to prohibit the extradition
of U.S. nationals thereunder to the British Crown,
the above objections to the proposed Treaty would
apply pari passu with respect to foreigners
present in the United States whose extradition might
be sought under the terms of the new Treaty by the
British Crown, and especially for those foreigners
of Irish Descent. The proposed Treaty would violate
the most basic human rights of foreigners present
in the United States, and especially those of Irish
Descent, under the International Covenant on Civil
and Political Rights. Covenant article 2(1) provides
that the Covenant protects the basic human rights
of everyone living in the United States, both citizens
and foreigners alike: "Each State Party to the present
Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its
jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or
other opinion, national or social origin, property,
birth or other status." The same can be said for those
basic protections of the United States Constitution
mentioned above, which apply equally to U.S. citizens
and foreigners present in the United States.
Furthermore,
with respect to those foreigners present in the United
States, and especially those of Irish Descent, the
proposed Treaty would also violate the solemn U.S.
dual obligations of both (1) asylum and (2) non-refoulement
as required by the 1967 U.N. Refugees Protocol, to
which the United States is a contracting party,as
well as under customary international law. We must
never forget the grave injustices that the British
Crown inflicted upon Joe Doherty with the support
of the Department of State and the Department of Justice.
See United States and United Kingdom Supplementary
Extradition Treaty: Hearings on Treaty Doc. 99-8 Before
the Senate Committee on Foreign Relations, S.HRG.
99-703, 99th Cong., 1st Sess.
511 (1985). There must be no more Joe Dohertys!
Conclusion
For
all of these reasons then, the United States Senate
must refuse to give its advice and consent to the
proposed U.S.-U.K. Extradition Treaty for any reason.
There is no way this proposed Treaty can be salvaged
by attaching any package of Amendments, Reservations,
Declarations, and Understandings. The Senate Foreign
Relations Committee must reject this Treaty outright.
The currently existing bilateral and multilateral
extradition treaty regime between the United States
and the British Crown is more than sufficient to secure
the prosecution or extradition of alleged terrorists.
This proposed Treaty will only secure and guarantee
the persecution of Irish American citizens, voters,
and tax-payers by the British Crown. This proposed
Treaty will also secure and guarantee the persecution
of foreigners of Irish Descent present in the United
States by the British Crown. The perfidy of this proposed
Treaty cannot be overstated or underestimated. This
Treaty is a British dagger pointed at the heart of
Irish America.
Yours
very truly,
Francis
A. Boyle
Professor
of Law
Board
of Directors, Amnesty International USA (1988-92)
cc:
The Honorable Members of the U.S. Senate Foreign Relations
Committee
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