Skip to comments.Secret treaties challenge American sovereignty
Posted on 08/17/2003 9:33:26 PM PDT by TBP
American bounty hunter Duane Lee "Dog" Chapman found himself behind bars in a Mexican prison in Puerto Vallarta in late June. Though widely hailed at home as a hero for running to ground the convicted serial rapist Andrew Luster, a Max Factor heir, Chapman quickly was arrested by Mexican officials for committing what is considered kidnapping under Mexican law when he captured the fugitive.
If convicted, the bounty hunter could have spent as many as eight years in prison. Fortunately for Chapman he was released on bail by Judge Jose de Jesus Pineda, escaped to the United States and then failed to appear for trial.
Mexican officials are incensed by his actions and have placed Chapman on their most-wanted list. Ironically, the circumstances that allowed Mexican officials to hold Chapman in the first place also may prevent U.S. officials from extraditing him to Mexico.
The U.S. extradition treaty with Mexico includes a standard "dual-illegality" clause. A feature typical of extradition treaties, dual-illegality clauses limit extraditable offenses to those which are both criminal and punishable by at least one year in prison in both countries.
For this reason, notorious U.S. tax evaders such as Marc Rich have sheltered in Switzerland, where tax fraud is not a criminal offense. And, because bounty hunting is not considered an illegal activity in the United States, Chapman remains free and non-extraditable while within U.S. borders.
This is no doubt great news for Chapman's 12 children, but what happens if the situations are reversed?
Canada, for instance, steadily has liberalized its marijuana laws; indeed, the most recently proposed Canadian marijuana law calls for nothing more than a small fine for marijuana possession.
Canada's extradition treaty with the United States contains a dual-illegality clause. With possession and sale of marijuana decriminalized, and punishable only by a fine, these are nonextraditable offenses regardless of being crimes in the United States.
The subject of sentencing also merits mention. Both countries that border the United States and nearly all European countries typically require assurances that the death penalty neither will be sought nor implemented in the cases of individuals being extradited to the United States for crimes that are potential capital offenses here. In the landmark case of Soering v. The United Kingdom, for example, the European Court of Human Rights ruled that the United States could not extradite Jens Soering to the commonwealth of Virginia, which was seeking the death penalty. To do so, said the court, would constitute a violation of Soering's fundamental human rights even though he confessed to murdering his girlfriend's parents in Virginia in 1985 by inflicting "multiple and massive stab and slash wounds to the neck, throat and body." Soering eventually was extradited to Virginia, but only on the guarantee that the death penalty would not be given.
Mexican law even forbids the notion of life sentences or trials in absentia. As such, Mexico will not grant extradition to any country or state seeking to impose a sentence of life imprisonment upon the accused; neither will Mexico allow extradition in cases in which the alleged perpetrator was convicted in his or her absence from the court proceedings.
Interestingly, Luster was tried and sentenced in the United States, in absentia, to 124 years in prison for the drugging and raping of three women, satisfying both of the grounds on which Mexico may refuse extradition. Mexican officials, however, did not permit Luster to fight extradition. Instead, because he had entered Mexico illegally and under a fictitious name, Luster was deported, and no extradition proceedings occurred.
Had Luster entered Mexico legally and under his own name, he likely still would be enjoying the protections of Mexican extradition law. Instead, he currently resides at Wasco State Prison in central California, where he is serving his sentence.
Meanwhile, Attorney General John Ashcroft recently signed two low-publicity multilateral agreements with the European Union, or EU, on June 25. Known as the Extradition and Mutual Legal Assistance agreements, they purport to provide a coherent, unified framework for extradition between the United States and every state in the European Union, primarily for the purposes of facilitating "counterterrorism cooperation."
These treaties received very little attention in the U.S. media, but they are by far the most extensive and far-reaching agreements of their kind to which the United States ever has bound itself.
According to a government insider, the aim of the Extradition Agreement is to supplement all existing bilateral extradition treaties to which the United States was a party with various EU member states prior to June 25. It still includes the dual-criminality clause and Article 10 of the treaty, which places U.S. extradition requests on an equal plane with a borderless European Arrest Warrant.
Additionally, the United States virtually concedes the issue of the death penalty in the extradition agreement, stating that EU member states have the right to refuse extradition if the death penalty will be, or could be, imposed.
Predictably, Amnesty International was outraged that the treaty even provided EU member states with the option to extradite an individual under such circumstances. Furthermore, Amnesty International complains, "on the issue of guarantees of fair trial, the wording of the agreements is ambiguous."
No one will say exactly what went on during these agreement negotiations, but the covert atmosphere surrounding them prompted Amnesty International to comment: "Here is an agreement essentially negotiated in secret."
Statewatch, a nonprofit European organization dedicated to "monitoring the state and civil liberties in the European Union," repeatedly attempted to procure a draft copy of the agreement from the European Council. Its requests summarily were denied, and in April 2002 the European Council issued this explanation: "The interest of protecting the council's objectives outweighs the interest in democratic control."
"They know darned well there's a major sovereignty giveaway, and they don't want it to go public," said author Joel Skousen, an international security authority and editor of World Affairs Brief.
Why wouldn't U.S. officials want to publicize the Mutual Legal Assistance Agreement, or MLAA? Because it grants broad and heretofore nonexistent powers over U.S. residents to EU member states, Skousen says.
For example, under Article 4 of the MLAA, any EU member state may call on the United States to provide complete U.S. financial records of any "identified natural or legal person suspected of or charged with a criminal offense" and the United States must comply.
The MLAA contains no dual-illegality clauses, nor does it contain any mandatory minimum sentences.
Treaty opponents say this could have consequences of immense proportions to many U.S. organizations that routinely engage in activities protected by the U.S. Constitution but considered illegal by many EU member states. They note that hate speech is illegal throughout the EU. Therefore, U.S. organizations or individuals that broadcast or advertise in the EU are subject to having their entire financial histories provided by the U.S. government to EU member states. Despite constitutional guarantee of freedom of speech, the U.S. government would be bound to supply requests of this nature under the signed MLAA.
Never mind that European hate-speech law includes matters most Americans regard as constitutionally protected. Some high-ranking European officials have made no secret of the fact that they consider religiously based opposition to abortion to be hate speech. For instance, Poul Nielson, the European commissioner for overseas development and humanitarian aid, labeled anti-abortion Christians "extremists" who hold "extreme views on religion and sexuality."
Furthermore, application of the MLAA may be broadened after signing. If EU and U.S. laws continue to diverge, EU member states nonetheless will be able to demand sensitive financial records of other individuals and groups even when their actions are protected under U.S. law.
Many conservative protectionists, Pat Buchanan among the more vocal, believe that agreements in which other countries are permitted to dictate to the United States the terms of American liberty violate the Constitution. And this treaty directly exposes U.S. citizens to potential intrusions explicitly banned under the First Amendment.
It remains unclear why dual illegality was not written into the MLAA, as the U.S. government insisted that such a clause be retained in the Extradition Agreement precisely to avoid usurpation of U.S. sovereignty in criminal matters. Nor has the U.S. government explained why provisions of the agreements apply to nonterrorist activities when counterterrorism is given as the need for the agreement.
Although the United States has signed these agreements, they cannot be enforced without being ratified by the Senate. The plan is to submit them in mid-2004. But that is a presidential election year, when these controversial treaties are certain to encounter harsh opposition from both political parties.
More likely, they will not be sent to Capitol Hill until after the general election.
Damned! You beat me!
Great Blue Oyster Cult album.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.