It Is the Time for Testing
Jim Kouri, CPP
December 05, 2007
Lawmakers in Washington need to be alarmed and alert as they consider the nominee to be the next attorney general. From an objective external perspective the United States Department of Justice seems to be adrift and to be quickly losing its way in the routine prosecution of ordinary transnational crime.
A clear consequence of this loss of compass is that the DOJ is systematically undermining the extradition treaties and bilateral international relationships, painstakingly built over the last century, that are the foundation for the critical campaign against globalized, non-terrorist related crime.
It has not always been this way. The United States has been instrumental in the creation of many international conventions upon which the international rule of law is founded. Some analysts point to the morally corrosive effect of the 1992 United States Supreme Court decision in United States v. Alvarez-Machain, as a point when the U.S. began to lose its way.
This ruling reaffirmed that a US Criminal Court has jurisdiction to try a person
who has been brought before it even if by forcible abduction from a sovereign foreign state and without compliance with the applicable bilateral extradition treaty and the domestic law of that state.
Others point to the fact that the DOJ has actually embraced and adopted the Alvarez-Machain doctrine as a matter of its own enforcement policy which now explicitly
authorizes front line United States Attorneys to consider using such extra legal means for obtaining the return of a wanted foreign person to the US, even in non-terrorist cases, albeit subject to approval from the Washington Department of Justice Office of International Affairs. Whatever the cause, the result of this policy has been an appalling trail of destroyed good will and undermined confidence.
Consider the record from a Canadian perspective. In April 2001, in United States v. Cobb, the Supreme Court of Canada ordered a judicial stay of procedings of a U.S. extradition application on the grounds of abuse of process because U.S. law enforcement officials made statements to the media threatening that unless Mr. Cobb waived extradition and voluntarily returned to the United States for trial steps would be taken to ensure that upon his eventual return to the U.S. he would be placed in a particular prison setting where he would be exposed to homosexual rape.
In April 2002, in United States v. Licht, a Canadian Superior Court Judge stayed another US extradition request, again on abuse of process grounds, because a civilian DEA agent had illegally entered Canada in order to further a drug investigation of Mr. Licht contrary to Canadian law.
More recently, on September 14, 2006, in United States v. Gavin Tollman, another Canadian Superior Court judge stayed yet another US extradition request as an abuse of the Canadian legal process because the involved AUSA had induced Canadian officials to help to obtain Mr. Tollmanšs removal from Canada without first complying with the Canada-US Extradition Treaty. The judge found a course of deliberate and egregious misconduct and that the AUSA in question had been deceptive and disingenuous.
Then consider matters from a United Kingdom perspective. In a remarkable
decision issued on June 28, 2007, in United States v. Stanley Tollman, a
British judge dismissed a U.S. extradition request as unjust and oppressive.
He also made explicit findings that the same AUSA as in the related Canadian
case, Stanley Okula Jr., had given untruthful evidence during the course of
the UK extradition hearing itself. This is the same prosecutor who was
singled out by a Manhattan District Court Judge as having been economical
with the truth in his judgment in the high profile KPMG case.
International mutual legal assistance premised upon the mutual respect of
sovereign nations and animated by the aspiration to the international rule
of law is the necessary precondition to the fight against transnational
crime of all types. Yet the commitment of sovereign nations to mutual legal
assistance, like the reputation of an individual, is hard won but easily
lost.
On the eve of confirmation hearings for the next attorney general of the
United States Congress ought to ask some essential questions. How has the
Department of Justice so strayed from its mission that a single AUSA could
earn the enmity of three independent judges, in three different countries,
in three separate cases?
Has this particular AUSA, been disciplined for his misbehaviour? How can the DOJ allow a single prosecutor to harm extradition relations with two of the USAšs greatest allies and trading partners? Will those in Congress charged with selecting the next chief law officer of
the greatest and most powerful nation in human history ensure that the
candidate selected is committed to re-establishing a culture within DOJ that
reasserts respect for the sovereignty of nations, the vitality of treaties
between sovereign nations and to the international rule of law?
It does not overstate to assert that we are at a tipping point in human affairs. Congressional leaders should make no mistake; history and the international community will judge them by their choice.
A clear consequence of this loss of compass is that the DOJ is systematically undermining the extradition treaties and bilateral international relationships, painstakingly built over the last century, that are the foundation for the critical campaign against globalized, non-terrorist related crime.
It has not always been this way. The United States has been instrumental in the creation of many international conventions upon which the international rule of law is founded. Some analysts point to the morally corrosive effect of the 1992 United States Supreme Court decision in United States v. Alvarez-Machain, as a point when the U.S. began to lose its way.
This ruling reaffirmed that a US Criminal Court has jurisdiction to try a person
who has been brought before it even if by forcible abduction from a sovereign foreign state and without compliance with the applicable bilateral extradition treaty and the domestic law of that state.
Others point to the fact that the DOJ has actually embraced and adopted the Alvarez-Machain doctrine as a matter of its own enforcement policy which now explicitly
authorizes front line United States Attorneys to consider using such extra legal means for obtaining the return of a wanted foreign person to the US, even in non-terrorist cases, albeit subject to approval from the Washington Department of Justice Office of International Affairs. Whatever the cause, the result of this policy has been an appalling trail of destroyed good will and undermined confidence.
Consider the record from a Canadian perspective. In April 2001, in United States v. Cobb, the Supreme Court of Canada ordered a judicial stay of procedings of a U.S. extradition application on the grounds of abuse of process because U.S. law enforcement officials made statements to the media threatening that unless Mr. Cobb waived extradition and voluntarily returned to the United States for trial steps would be taken to ensure that upon his eventual return to the U.S. he would be placed in a particular prison setting where he would be exposed to homosexual rape.
In April 2002, in United States v. Licht, a Canadian Superior Court Judge stayed another US extradition request, again on abuse of process grounds, because a civilian DEA agent had illegally entered Canada in order to further a drug investigation of Mr. Licht contrary to Canadian law.
More recently, on September 14, 2006, in United States v. Gavin Tollman, another Canadian Superior Court judge stayed yet another US extradition request as an abuse of the Canadian legal process because the involved AUSA had induced Canadian officials to help to obtain Mr. Tollmanšs removal from Canada without first complying with the Canada-US Extradition Treaty. The judge found a course of deliberate and egregious misconduct and that the AUSA in question had been deceptive and disingenuous.
Then consider matters from a United Kingdom perspective. In a remarkable
decision issued on June 28, 2007, in United States v. Stanley Tollman, a
British judge dismissed a U.S. extradition request as unjust and oppressive.
He also made explicit findings that the same AUSA as in the related Canadian
case, Stanley Okula Jr., had given untruthful evidence during the course of
the UK extradition hearing itself. This is the same prosecutor who was
singled out by a Manhattan District Court Judge as having been economical
with the truth in his judgment in the high profile KPMG case.
International mutual legal assistance premised upon the mutual respect of
sovereign nations and animated by the aspiration to the international rule
of law is the necessary precondition to the fight against transnational
crime of all types. Yet the commitment of sovereign nations to mutual legal
assistance, like the reputation of an individual, is hard won but easily
lost.
On the eve of confirmation hearings for the next attorney general of the
United States Congress ought to ask some essential questions. How has the
Department of Justice so strayed from its mission that a single AUSA could
earn the enmity of three independent judges, in three different countries,
in three separate cases?
Has this particular AUSA, been disciplined for his misbehaviour? How can the DOJ allow a single prosecutor to harm extradition relations with two of the USAšs greatest allies and trading partners? Will those in Congress charged with selecting the next chief law officer of
the greatest and most powerful nation in human history ensure that the
candidate selected is committed to re-establishing a culture within DOJ that
reasserts respect for the sovereignty of nations, the vitality of treaties
between sovereign nations and to the international rule of law?
It does not overstate to assert that we are at a tipping point in human affairs. Congressional leaders should make no mistake; history and the international community will judge them by their choice.
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