A House Divided? War, Extradition and the Atlantic Alliance

Part I

David B. Rivkin, Jr. and Lee A. Casey

When not publicly attacking the Bush Administration, European statesmen tend, at least on the quiet, to deprecate their American counterparts as the rude products of a "cowboy" culture. These days, however, they would do well to recall the long-forgotten words of one of those rude products. In 1838, Abraham Lincoln noted that "all the armies of Europe and Asia, with a Bonaparte to lead them, could not, by force, take a drink from the Ohio River or make a track on the Blue Ridge in the trial of a thousand years. If destruction is to be our lot, we ourselves must be its authors." This sense of strategic optimism has undergirded American foreign policy and permeated our political culture. To be sure, during the second half of the 20^th century, the nuclear standoff between the Soviet Union and the United States challenged America’s erstwhile strategic invulnerability. Yet, an important segment of American people and elites never accepted this state of affairs and, instead of striving to maintain indefinitely the "balance of terror", sought to win the Cold War. By 1991, the demise of the Soviet Union had ushered in an era where Lincoln’s assessment seemed justified again.

Unfortunately, on September 11, 2001 Osama bin Laden demonstrated that a determined terrorist group, equipped with the tools of modern technology, could prove Lincoln wrong. While the United States remains the primary terrorist target, this attack was part and parcel of a broader civilizational gauntlet that, at the dawn of the 21^st century, challenges the security and even the very survival of democratic states. The threat is real and requires a concerted response by the same Atlantic alliance that has won the Cold War.

Unfortunately, with the possible exception of Britain, Europe’s post-September 11 "unconditional solidarity" has proved to be short-lived. The Europeans have questioned, albeit mostly soto voce, whether we are really at war. For many of them, the search for absolute security is just another example of American strategic hubris and terrorist threats--even of the most awesome variety--are just a fact of life, to be endured and managed indefinitely, rather than something to be defeated once and for all.

In part because of these differences in threat assessment, the Europeans have been mostly lukewarm in their support of the American military operations in Afghanistan, and outright hostile to the idea of a regime change in Iraq. These military disputes, coupled with other highly visible diplomatic estrangements – e.g., the jurisdiction of the permanent International Criminal Court (ICC) and the Kyoto Protocol – have put considerable stress on the Atlantic alliance. This situation is further exacerbated by yet another brewing contretemps--this one over the investigation, prosecution and extradition of accused terrorists--which pits Europe against the United States.

This matter has already ignited a fierce and continuing firestorm in the European press. The initial focus has been President Bush's November 13, 2001 order, permitting the use of military commissions to try captured members of Al-Qaeda and the Taliban. Europe's editorial pages have blazed with rhetoric accusing the United States of abandoning its own constitutional ideals. At least one European government, Spain, has suggested that it will not extradite suspected terrorists to the United States if they are subjected to trial by military commissions. Of late, the European media has broadened its attacks in criticizing numerous law enforcement aspects of the Bush Administration’s war against terrorism, including the detention of enemy combatants, crackdown on immigration law violators, alleged excessive secrecy and the like.

While a lot of this is standard anti-American rhetoric, the key underlying issue is Europe's "progressive" agenda, and especially its determination to force the United States to abolish the death penalty. Over the last year, Germany, France, Britain and other European governments have carefully scrutinized various American extradition requests, raising all sorts of objections (from an alleged insufficiency of evidence to various death penalty-related concerns). Germany and France have even suggested that they would not share law enforcement and intelligence information about various Al-Qaeda suspects already in American custody, unless the United States promised not to execute them. This point was made with particular vigor by the recently dismissed German Justice Minister, Herta Daeubler-Gmelin, a well-known anti-death penalty advocate, who subsequently acquired considerable notoriety for comparing President Bush with Adolf Hitler.

The flair-up of these tensions is not a manifestation of random or issue-specific trans-Atlantic disputes. Rather, it is emblematic of the long-term fundamental disagreements between the United States and our European allies over a broad range of major policy issues. The fact that these disagreements have not been muted by an emergence of a new common strategic threat--terrorist groups seeking the destruction of Western civilization--demonstrates the width and depth of the intra-alliance rift.

There is no doubt that the military commissions authorized by President Bush mark a clear departure from ordinary criminal justice in the United States. Their features, such as the lack of a jury, closed trials and secret witnesses, unlimited "hearsay" evidence and conviction on a two-thirds vote, would make any American lawyer shudder. In the Anglo-American canon, the elaborate due process protections accorded to criminal defendants (too often considered "game playing" by lawyers trained in the Civil Law tradition) have always served twin purposes -- to avoid conviction of the innocent, and to ensure that the government's formidable power is not abused. Secrecy permits, even invites, abuses and often is sought for personal or bureaucratic advantage, rather than for the lofty reasons of national security.

Consequently, public trials by jury are the rule in the United States, and are guaranteed by its Constitution. American history, however, has featured, and the Supreme Court has recognized, a rarely invoked exception. Under applicable precedents, "unlawful combatants", like members of Al-Qaeda, who do not fight in uniform, carry arms openly, and acknowledge the "laws of war", may be tried by military commission. Notably, this process would not be applicable to those terrorists who are not engaged in an armed conflict – a term of art under international law – against the United States, and the entire military commission system would operate only while that conflict continues. Hence, the process set forth in President Bush’s military commissions order is severely limited both in terms of the number of persons to which it can apply and its duration.

Moreover, after much internal deliberation, the Bush Administration released a set of quite reasonable rules that the military commissions are to follow. They would operate mostly in ways similar to the normal judicial bodies, meeting in secret only on those rare occasions when classified evidence is being introduced. The accused would have the right to the counsel of their choice, while the prosecution would have to meet an exacting burden of proof. In any case, no matter how troubling the potential resort to military commissions may be from an American perspective, given the European legal tradition, their criticism of the United States is quite hypocritical.

With the exception of England and Ireland, most of Europe follows the "inquisitorial" Civil Law system, in which secret proceedings, trials without juries, and unlimited hearsay evidence are commonplace. Moreover, Europe's governments enthusiastically espouse the virtues of international criminal tribunals, such as the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICC, that also permit secret proceedings, limitless hearsay evidence, trial without the benefit of a jury, and conviction on a two thirds majority vote, rather than unanimity. Lengthy pre-trial detentions, measuring in years, also are common on the Continent, and bail is often not granted. Meanwhile, France actually uses special judicial arrangements, distinct from the regular justice system, to try terrorists. Conditions in European prisons are often appalling, and the suicide rate among prisoners is high. None of these features of everyday life in Europe have, however, drawn the fire of its "progressive" pundits. Assuming that the Europeans are not just using this opportunity to attack a conservative administration in Washington, the real basis for their extraordinary ire is one particular aspect of the American system of justice, both civilian and military, the fact that it can and it does impose the death penalty.

Virtually all Western European states have eliminated the death penalty, and its elimination is a condition of acceptance into the European Union. Of course, no one can question the right of Europe's states to choose their penal policies. However, with the zeal of a reformed alcoholic, Europe seeks to eliminate the death penalty from the rest of the world in general, and the United States in particular, claiming, among other things, that it is inconsistent with the binding international legal norms.

This proselytizing attitude was stated by former Irish President Mary Robinson, at the time the UN human rights chief, to then Texas Governor George W. Bush, before the execution of convicted murderer Gary Graham: "I believe the execution of Mr. Graham runs counter to widely accepted international principles and to the international community's expressed desire for the abolition of the death penalty." For years, the European practice has been to deny American extradition requests in cases where the death penalty might be imposed. In the absence of assurances that capital punishment would not be sought, extradition has even been refused in cases where no European nationals were involved, either as victims or defendants, and where the crime in issue took place outside of Europe. Thus, for example, European countries routinely refused to extradite those Americans who, having committed murder on American soil, escaped to Europe. By contrast, the United States retains one of the most liberal extradition policies in the world, regularly sending its citizens for trial in Europe where they are not accorded jury trials or other guarantees of the Bill of Rights that are cherished in the United States as strongly as the ban on capital punishment is in Europe. In making extradition decisions, American courts also do not usually weigh the sufficiency of evidence against the accused.

Ordinarily, European-related extradition qualms create few serious trans-Atlantic tensions. For one thing, American prosecutors often are willing to forego seeking the death penalty against a given criminal defendant, or let an individual simply be tried in Europe. To the extent that there has been a dialogue on the subject, it has been almost entirely one-sided and ritualized. The Europeans blast the United States for its death penalty practices, while the American diplomats, most of whom themselves do not espouse strong pro-death penalty views, offer lukewarm rejoinders.

Meanwhile, the Europeans also have been quite successful at creating an impression that, on death penalty-related issues, their hands are tied by law. Since the respect for law plays an exceptional role in the American political and constitutional tradition, this European approach has also helped to mitigate Washington’s anger. However, when examined, the European legal claims prove dubious – neither the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, nor the 1983 Protocol to the Convention (dealing with the abolition of death penalty) prohibit extradition of suspects from Europe to the so-called "retentionist" countries that continue to impose the death penalty.

Ironically, the leading European death penalty extradition case, Soering v. United Kingdom, decided in 1989 by the European Court on Human Rights, held that the Soering should not be extradited to Virginia (where he faced the death penalty), primarily because he was likely to spend many years on death row, in less than ideal conditions. Under these circumstances, his extradition violated the Convention’s prohibition against inhuman and degrading treatment. The court did not say that an extradition to a retentionist state was per se unlawful.

Moreover, given the European attitudes on other policy matters, their claim that, in dealing with war on terrorism-related issues, their hands are tied by the domestic constitutional and legal culture is difficult to accept at face value. For example, when attacking the United States for failing to embrace the ICC, the European commentators and officials seemed profoundly unimpressed with the claims that, ICC’s policy merits aside, the United States Constitution poses insurmountable legal obstacles to the American participation in that institution. These observations are derided as an example of American constitutional "provincialism", that cannot be allowed to stand in the way of international justice.

Even closer to home, when dealing with the ICTY, the Europeans displayed no patience for the arguments made by Yugoslavia that its constitution prohibited the extradition of Slobodan Milosevic to the Hague. Indeed, they were perfectly pleased to secure an extra-judicial transfer of Milosevic, arranged by the government of Serbia, in defiance of the decisions by the Yugoslav national courts. The point here is not, of course, that Milosevic should not have faced the music in The Hague. The proper way, however, to effect this outcome would have been for Yugoslavia to change its constitution first and then go through an appropriate extradition process. In short, domestic constitutional niceties seem to matter to the Europeans only when dealing with American extradition requests.

(To be continued in the next issue)

Messrs. Rivkin and Casey are partners in the Washington, DC office of Baker & Hostetler LLP. They served in a variety of positions in the Reagan and Bush-41 Administrations, including the White House Counsel’s Office and the Department of Justice.  Mr. Rivkin is an Associate Fellow of The Nixon Center.