International Terrorism Prosecutions: Extraditions

By Nora Ellingsen
Wednesday, September 21, 2016, 7:50 AM

In a federal district court in Washington, D.C. this past Thursday, Irfan Demirtas pleaded guilty to providing material support to the Islamic Movement of Uzbekistan (IMU). Unlike many of the recent FBI arrestees, who tend to be young men travelling to fight for ISIL, the defendant in this case is 58 years old and charged with supporting a terrorist group that many Americans have never heard of.

Designated as a Foreign Terrorist Organization by the State Department in September 2001, the IMU is a militant Islamic group formed in 1991 with the stated purpose of overthrowing the government of Uzbekistan and to creating an Islamic state under Sharia law. In order to achieve its stated goal, the IMU has conducted military operations in Uzbekistan, Afghanistan, and Pakistan, and allied itself with the Taliban in 2001.

In the sealed 2011 indictment, Demirtas is charged with receiving military-type training from a foreign terrorist organization, using a firearm during and in relation to a crime of violence, and providing material support to the IMU. According to the plea agreement, Demirtas pleaded guilty to Count Two of the indictment, the material support charge.

In the statement of offense accompanying the plea agreement, Demirtas recognized that the government could prove beyond a reasonable doubt that he provided funding to the IMU beginning in January 2006 and continuing through May 2008. More specifically, the defendant gave money to Tahir Yuldashev, also known as Tohir Can, the leader of the IMU. According to the statement of offense, while in the presence of the defendant, Yuldashev made threats to Americans and stated that the defendant’s money would be used to fund the terrorist organization.

While the charges levied against Demirtas may be somewhat dated, his journey from the Netherlands to a courtroom in D.C. may provide insight into the pending legal journey for subjects like Mohamed Amiin Ali Roble and Abdi Nur, the uncle-nephew pair who, while charged via criminal complaint in the District of Minnesota, are currently fighting with ISIL in Syria.

While extraditions may not be rare—Minh Quang Pham was recently extradited from the United Kingdom and sentenced to 40 years in prison for providing material support to AQAP— Demirtas’ case highlights the logistical nightmare of working within the bureaucracies of three different governments.

The court lays out the complicated extradition story in an opinion following the defense’s motion to dismiss the indictment for violation of the defendant’s right to a speedy trial. A dual Dutch and Turkish citizen, Demirtas was originally arrested in the Netherlands in May 2008 pursuant to a European Arrest Warrant issued by French authorities. The Dutch delivered him to the French, who agreed that, if Demirtas were to be convicted in French court, he would serve his sentence in the Netherlands. In 2011, while still working his way through the French criminal justice system, Demirtas was also indicted in the United States. Interested in extraditing the defendant, the U.S. quickly ran into a variety of roadblocks—France wouldn’t extradite Demirtas because they had promised to return him to the Dutch, and the Dutch wouldn’t entertain the request because he was located in France.

In January 2013, the French informed the U.S. that Demirtas had been convicted and sentenced to eight years. Six months later, Demirtas was returned to the Netherlands, where he was resentenced to time served while in France and released.

Due to a Red Notice issued by Interpol to alert foreign governments to U.S. arrest warrants, the Netherlands notified the U.S. of Demirtas’ release and began chatting about a possible extradition to the United States. First, the Dutch wanted to make sure the U.S. charges wouldn’t fall under “prior jeopardy”—a legal concept similar to that of double jeopardy, but which applies to successive prosecutions by different governments. The analysis was slow going, in part because the French kept no electronic court file available for review, but eventually the charges were deemed to be too similar on the grounds that they covered an almost identical time period. The extradition request was put on ice in January 2014.

But unfortunately for the defendant, the Red Notice remained active when Demirtas left the Netherlands. He was arrested in a German airport pursuant to the Red Notice in January 2015 and extradited from Germany to the United States six months later. Setting foot in a U.S. courtroom five years after he was charged, Demirtas is scheduled to be sentenced on November 30th. At that time, he faces a maximum penalty of 15 years in prison.