Sunday, December 02, 2007
Forget the Law of Extradition...
According to the Sunday Times, the US has told Britain it can 'kidnap' British citizens if they are wanted on sus[icion of committing a crime in the US. Apparently this is because the Supreme Court has "sanctioned it". What arrant nonsense. I wasn't aware that the US Supreme Court had jurisdiction over the entire planet. Surely the law of extradition takes precedence over the US Supreme Court? Maybe a lawyer can enlighten us.
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41 comments:
The Americans have been making this claim for several years now; they just never went on record as singling the UK out, ie, "yes, it applies to y'all, too!"
But they have certainly applied this to Canadians on Canadian soil, Columbians on Columbian soil, Nicaraguans...you get the picture. Sometimes they ask the government to hand them over, but they've also been known to just go in and grab them.
Fortunately for the UK, they really don't have a lot of manpower to spare for such raids, what with the highly successful surge in Iraq.
raincoaster
What about the NatWest Three, shortly to be four?
Blair changed the extradition rules so that the US could 'kidnap' British subjects without having to prove a case in a British court.
Pity the British were not able to do this when the yanks were refusing to extradite ira terrorists because the american courts believed the poor soul would be assassinated in prison.
It isn't really about what takes precedence.
The US Supreme Court's rulings have no effect in the UK. Therefore, anyone involved in such a kidnapping can be tried for wrongful imprisonment (provided they don't have diplomatic immunity). However, once the suspect is in the USA, the Supreme Court's rulings are final. They have ruled that the fact that you have been kidnapped does not give rise to any legal remedy - you can still be tried for the alleged offence and, if convicted, will have to serve the full sentence.
If the positions were reversed, I suspect that the USA would take an extremely dim view of their nationals being kidnapped to face trial in the UK. I believe that our courts would rule that the detention was illegal and free the suspect. Of course, if the suspect was accused of involvement in terrorism, there would be an outcry in sections of the press with claims that the courts are soft on terrorism and placing the terrorist's rights ahead of the rights of victims.
Whilst I am generally pro-USA, I believe its view on the extra-territoriality of its laws does it great harm. I would like to see the government standing up to the USA on such issues.
Given the disclosures about Richard Hardyment and CCHQ in today's Observer you might want to revise your story about Labour spinners trying to pin the donor story on the Tories. You might also want to come clean about your own relationship with CCHQ - are you part of their spin machine or just their innocent dupe!
peter harrison [9.44] I agree. But of course a successful kidnap will have the victim and his kidnappers back in the USA before we can act. So for practical purposes only unsuccessful kidnappers are amenable to our jurisdiction.
The effect of the treaty arrangments we now have with the USA and the EC is that where foreign courts are concerned, habeas corpus has been abolished.
Public indignation has centered on the 28/56/90 days detention proposals, but those are small beer compared to the ABOLITION of habeas corpus.
I am not a lawyer and neither have I read the ST article yet (UK papers don't arrive in Gib until lunchtime) but if I recall the Americans popped over to Italy a year or so ago to capture some suspects covertly and at gunpoint.
The Italians weren't too pleased about it and issued arrest warrants for the CIA spooks involved.
As raincoaster says, regretablly this is not new.
As the UK has a long history of providing a safe haven for other countries terrorists it may be prudent to keep quite.
American lawyers believe in all seriousness that US law applies anywhere, anytime to anybody, and on any planet.
Get used to it.
Of course anyone proved to be involved in doing so would not be able to safely leave the US again, for fear of extradition to the UK. They would certainly be very foolish to enter Europe openly.
It could also constitute an act of war, if the person is not a suspected terrorist (since the US considers itself at war with terrorists, that might be a bit more clouded an issue) which could lead to some very sticky diplomatic situations. We could suddenly find ourselves with 10,000 prisoners of war!
Like Peter Harrison I am pro-US, but get fed up of them extending their jurisdiction unilaterally.
We shouldn't be surprised. In reality the Americans have always thought they can do whatever they like outside US borders and the reach of the Supreme Court. And even when they got the 'detainee' back to the US if the Supreme Court objected they would simply cart the poor soul of to Guantanamo or a secret facility on foreign soil. Rendition certainly wasn't invented by W. Bush.
At least the Senate passed the US-UK Extradition bill over opposition from Irish-Americans seeking to protect PIRA terrorists. I believe as of April 2007 it only requires a Presidential signature.
You should watch more action movies, Iain. The US Marshall Service (or whatever it's called)claims global jurisdiction.
The company that I worked for was sold to an American company. Everyone in the company had to sit through the most boring video every made which was supposed to explain the Sarbanes-Oxley Act to us. We kept asking what was the point, none of us were in a position to have inside knowledge and we said we were all UK citizens not subject to US law. It was typical of the way they think US laws apply to everyone in the world.
This is simply a consequence of power. When Britain ruled the waves, we had exactly the same policy. Remember gunboat diplomacy?
Ironically enough, the 1812 war between Britain and the US was sparked off by British ships "kidnapping" US citizens from US ships and imprisoning them (for being deserters from the British Navy). Now the US is the more powerful country, they are on the other side.
Would the US courts allow the extradition of the kidnappers to face trial in the UK?
> I wasn't aware that the US
> Supreme Court had jurisdiction
> over the entire planet.
Weren't you?
The US approach that it can do as it wants is hardly new.
Should work in IT then - in my industry, programmers vacationing in the US have been arrested for working (in Europe) on IT projects that (while legal in Europe) would have contravened US copyright law had they been done over there.
The US increasingly acts like an HGV jumping a red light - you can argue all you want about whether it should have done, but you'd better get out of the way *$&£ed quickly, because it's a lot bigger than you are.
I wonder what would happen if a US citizen was "kidnapped" and taken to another country.
Gnashing of teeth, spittle-flecked rhetoric and the threat of sanctions/airstrikes.
What would happen if a US "kidnapper" was arrested and charged, later jailed? Would there be a clamour for their release? What would happen if a "kidnappee" resisted the "kidnap" and wounded or killed the "kidnapper"?
The US of A is not worth lifting one sorry finger for any more.
If other countries did this to US citizens who had been up to nonsense in their countries then it would be a fair law. As it is, this US law only apples to acts done against the US and not acts done by US agents abroad.
yep Iain that's the rules
the only one who raised it seriously lately in parliament was pointless MIng
Thank you, Peter Harrison,for that explanation. The facts of life are, when you are the most powerful nation in the world, with the largest and best-equipped military, you can do anythng you damn well like.
We used to turn back slave ships in the middle of the Atlantic. They could be regarded as perfectly normal trader ships taking a commodity - human beings - from seller to buyer. Except slavery was outlawed in Britain. So we applied our law to the world.
There's no difference and we have to live with it.
You write: "I would like to see the government standing up to the USA on such issues." First, that would be silly because we have no say in how America conducts its business and second, Gordon Brown cannot even stand up to Harriet Harman.
paul revere 10:48 AM said...
Get used to it.
Like hell I will!
US Extraterritoriality is not only totally illegal, arrogant and Imperial, they are their own worst enemies. What would, what CAN their defence be if Iran, China or any other country passed similar laws? Their concept of Extraterritoriality is an expedient response with untold and unintended consequences.
In permitting this, the Supreme Court of the United States of America has show itself to be a bunch of blithering IMBECILES.
Jess The Dog writes: "I wonder what would happen if a US citizen was "kidnapped" and taken to another country.
"Gnashing of teeth, spittle-flecked rhetoric ".
I hate stereotypes. For God's sake, observe the world. The United States government does not do gnashing of teeth and spittle-flecked rhetoric. They are calm, cool, collected and eloquent.
Chris P, I made the same point as you, and bashed it over before yours appeared. Mine hasn't been passed yet, but I wouldn't have bothered making it if I'd seen yours.
Of course the US courts can only determine their own law: they can't affect the lawfulness of these kidnappings in the countries they happen.
As for extradition law, I don't think there's any overarching extradition law that automatically binds all countries: it's a question of what extradition agreements the US has signed and ratified with other countries. I don't know exactly what their agreement with us says, but first, as I recall they've not yet ratified it, and second, it'll only affect their own law if they've committed themselves to only using the treaty procedures in relation to suspects here. Making provision for formal procedures isn't necessarily the same thing as committing yourself to using those procedures exclusively. Unless they've done the latter, they're free to retain their own view of their own law.
I don't think we should be too pleased with ourselves, though: if I remember right it's only about 15 years ago that it was pretty clearly lawful to put someone on trial here if they'd be brought to Britain unlawfully, contrary to extradition agreements. I agree what the Americans are doing is wrong, but we're not that far in advance of them.
neither have I read the ST article yet (UK papers don't arrive in Gib until lunchtime)
Geoff - you don't need to wait for your copy of The Sunday Times to arrive, simply click on the newspaper's name on the first line of the thread which Iain has thoughtfully purple tinted for you and Hey Presto! - as if by magic the article appears.
Iain, coming from a country that invented "press-ganging," you all certainly have a right to compare notes. I seriously doubt the US Supreme Court has authorized this and I suspect MI6 is complicit whenever these renditions do take place, although the lefties as usual are in a lather over what might be a teapot tempest.
Lots of hatred for that hegemonic power that invented the internet and the First Amendment which allows whiners to spew factitious mis- or disinformation.
Of course, Canadians have no control over their terrorist youth, who tried to blow up Toronto's RCMP HQ and then were described by authorities as "normal Canadians," all of whom happened to have a variation of the name "Muhammed," all 21 of the "normal" Canadians!!
With a "country" like that on our borders, who wouldn't take extraordinary precautions.
I suppose it is legally the same as when some members of Serbia's new government, after the NATO funded putsch, handed Milosevic over. This was in clear violation of Serb law but it didn't matter once he was out of the country.
This is a legal precedent which comes back to haunt us.
Legally it could be argued that any organisation involved in this is guilty of conspiracy to kidnap & thus any American government employee without immunity is part of criminal conspiracy.
I'm sure that is what the US would have done had SIS assasinated the IRA on US soil. In the real world equal rights don't really exist but we could may a bit more noise about it.
You need only look at the case of Ian Norris.It is a total disgrace.He was CEO of a British company,employing British workers in British factories and is accused of conduct which was not illegal here at the time in question and which only had a secondary effect (if at all) in the US.Now suffering from cancer the poor man is in grave danger of being shipped out to a US kangaroo court because Blair prostrated himself before Bush and sold away our sovereign rights with a ludicrously one-sided extradition treaty.
cti - probably a badly made video.
It should have explained that if your company is listed on the US stock exchange [and most FTSE-100 companies do have a dual listing] then you ARE subject to the Sarbanes-Oxley rules and regulations.
Of course, the rules are so onerous that several British companies have considered de-listing.
You have been warned !
Penian - "the poor man is in grave danger of being shipped out to a US kangaroo court ...".
I am sincerely sorry that Mr Norris is currently suffering from cancer and I wish him a recovery.
But to refer to a US "kangaroo court" is so spine-tinglingly ignorant it chills the blood.
The US has a steady, solid legal system that has developed over 300 years. They have overtaken us as the world leader. Get over it. They are not crude, ignorant rubes. They landed men on the moon. We didn't. They have landed little tractors on Mars. We haven't. They invented the internet. We didn't. They invented Star Wars. We didn't.
Almost all the greatest advances in medical science over the past century have been American. Their court system is reliable, although witnesses sometimes re not. But the system works.
And America invented equality between the sexes. God made men and women. Mr Colt made them equal.
Ironically enough, the 1812 war between Britain and the US was sparked off by British ships "kidnapping" US citizens from US ships and imprisoning them (for being deserters from the British Navy).
They were Britich subjects taken from US ships. Not US citizens.
I claim the pedant prize, on the grounds this event was so long ago.
Verity you are a felicitous defender of a once great country. Unfortunately words will not get the USA out of its current slough of contempt. That is because it has behaved contemptably and, as another smooth-talking American purveyor of Snake Oil once said, "You can't talk your way out of a situation that you behaved yourself into".
Would the US courts allow the extradition of the kidnappers to face trial in the UK?
The more apt question might be what would happen if UK security agents (presumably MI6) kidnapped the kidnappers to face trial here?
Aethelbald 5:43pm
"You can't talk your way out of a situation that you behaved yourself into"
What a delicious quote. Any more in similar vein? Who was the author?
Aethelbald - As long as it is top nation, petty, envious people will feel contemptuous of everything the United States does. There's a particular viciousness about the English, I've noticed. We are no longer the most powerful nation in the world. We had our run and we were wildly successful for 350 years. But they can't get over it. They think the Number One spot was ours by divine right.
For God's sake, give it a rest. America is richer and more dynamic and, although the British find it awfully hard to admit, they have some brilliant international thinkers (I do not include Condoleezza Rice among them) who are every bit as astute, shrewd, far thinking and capable of diplomacy as we were.
I will tell you what. Admittedly, Mr Bush doesn't speak a second language - or some would say even a first - but Americans engaged internationally are far more likely to be fluent, and witty, in a second and sometimes a third language than the British - especially in government. How many people in Brown's knockabout "cabinet" speak a second language? Margaret Beckett and Jack Straw as Foreign Secretaries who can't speak a second language?
America is a far more secure civil society than Britain. People are politer in everday life, the streets are safer, they lock malfeasants up for (much) longer and around 40 states execute murderers.
What's not to like and admire?
Wonderful for His Age - Agree. It's a great quote.
BTW, I forgot, but Mr Bush does actually speak a second language. I believe he speaks pretty good Spanish. And his brother Jeb,Governor of FL, is married to a Mexican, although I don't know why I thought that was relevant.
"Almost all the greatest advances in medical science over the past century have been American." Verity, you really are over-egging the pudding: that's plain silly.
The relevant U.S. Supreme Court case is that of United States v. Alvarez-Machain (91-712), 504 U.S. 655 (1992).
The then Chief Justice of The U.S.A. said
“The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country's courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States………”
The first point is that this case is not a precedent for saying that the U.S.A. can abduct persons from anywhere in the world and then put them on trial. It is a precedent for saying that U.S. law allows the kidnapping of people from a country which has an extradition treaty with the U.S.A. So the country where the kidnapping took place must have an extradition treaty with the U.S.A.
U.S. case law is not binding upon the English and Welsh Court of Appeal but can be used by lawyers to try and persuade the Court of Appeal that the U.S.A. are allowed to kidnap citizens from England and Wales. I do not expect that the Court of Appeal will agree but stranger things have happened, particularly in the Court of Appeal.
By the way, this posting is not formal legal advice but merely observation and people should not rely on it. Anyone wishing to receive formal advice should contact a lawyer.
Yes, Verity, your U.S. heroes are very litigious and they can soon bankrupt people like the Nat West three, because there is no legal aid in that country. A dose of bankrupting litigation might remove your somewhat rose tinted view of them.
Verity
"The US has a steady, solid, legal sysetem..."
Of course!It was mostly based on English common law.
There were not so many worries about extraditions in the past with all that Noraid.What was it they used to say-the British government were the terrorists.
A few years ago Congress passed legislation allowing American forces to invade the Netherlands to forcefully 'liberate" americans held by the UN Criminal Court in The Hague.
Perhaps people should read the relevant US Supreme Court case (Alvarez Machain) prior to posting comments?
The link is at http://supreme.justia.com/us/504/655/case.html
When you read it, you'll note that the Supreme Court relied on an 1886 decision (Ker). In other words, this has been the US law since 1886, and yes somehow the world has survived.
If you'll read Alvarez, you'll find out that all the court said was that the US-Mexico extradition Treaty didn't forbid abduction. Mexico was aware of the Ker decision and could, if it had chose to, put in the treaty that the Ker doctrine didn't apply to Mexico. The Mexican government did no such thing, and the Court refused to insert into the treaty a provision the Mexicans themselves didn't insist upon.
Verity - "They invented the internet. We didn't."
OK, they might technically have invented the internet, but would it have taken off without Sir Tim Berners-Lee inventing html and the www? Probably not.
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