Detention: Law of: Legislative Development

Peter Margulies on the NDAA and Extradition

By Benjamin Wittes
Monday, December 5, 2011, 6:30 AM

Peter Margulies of the Roger Williams School of Law writes in with the following comments on the implications of the NDAA for extradition efforts:

September 11 made clear that “too many cooks” are not only bad for broth, but fatal for effective counterterrorism.  Adding government agencies often adds noise where clear channels of communication are vital.  However, under the guise of toughness on terror, the Senate version of the NDAA produces interbranch confusion, as FBI Director Robert Mueller warned in a recent letter to Congress, and DOJ National Security Division head Lisa Monaco cautioned at an ABA National Security Law conference last week.  The NDAA’s proliferation of counterterrorism cooks will also roil extradition efforts, as Monaco noted.
The NDAA’s sponsors, including Senators Levin and Graham, argue that the bill doesn’t create a too-many-cooks problem, but these claims ring hollow.  The NDAA’s section 1032, as readers know, requires military custody and adjudication in cases involving noncitizens who are (1) part of Al Qaeda or associated forces,  and, (2) have participated in planning or carrying out an attack on the United States or its allies.  Senator Levin has argued that the NDAA lodges each of these determinations with the President, and provides for a waiver if the Secretary of Defense, upon consultation with the Secretary of State and the Director of National Intelligence, certifies  to Congress that a waiver serves national security interests.  Unfortunately, this flexibility is laregely illusory, and will not stem burgeoning opposition to extradition in Europe and elsewhere for suspected terrorists who should have a date with American justice.  
Consider the case of Pakistani native Abid Naseer, whom the United States has tried to extradite from Britain to stand trial for allegedly participating in Najibullah Zazi’s foiled plot to bomb New York’s subways.  Under the NDAA, military custody and trial would be required for Naseer, unless the Secretary of Defense and other senior officials granted a waiver.  A waiver would require the collaboration of a number of officials with different agendas, interests, and bureaucratic turfs.  While officials in the current administration have a track record of cooperation, the experience of past administrations varies.  Bush Secretary of Defense Donald Rumsfeld famously sparred with Secretary of State Colin Powell and his successor, Condoleezza Rice.  A future administration might well see a resumption of such clashes.  This could produce delays in extradition efforts at our end.  Indeed, the prospect of such delays might even discourage efforts to seek extradition, leaving prosecution of suspected terrorists to other countries, which often lack the comprehensive conspiracy laws necessary for the task.  

Even more seriously, making military prosecution the rule and Article III courts the exception would ramp up anti-extradition efforts in Europe and elsewhere.  Extradition to face criminal charges in Article III courts already faces severe obstacles, as the United Kingdom case of Abu Hamza demonstrates.  Abu Hamza, whom the US has charged with recruiting terrorists for Al Qaeda, has argued that the United States would impose a prison term disproportionate to his crimes and that confinement in a supermax facility would violate the European Convention on Human Rights’ bar on inhuman and degrading treatment.  In Babar Ahmad v. UK, the European Court of Human Rights held that Abu Hamza and others had raised “serious questions” on the legality of their extradition.  Even after significant procedural reforms and the recent installation of the widely respected General Mark Martins as head of the prosecution office at the commissions, transnational tribunals will probably view military commissions as offering fewer procedural rights and stiffer sentences than Article III courts.  This will make extradition an even tougher sell in those tribunals, whose jurisprudence has developed as a push-back against Bush administration policies such as coercive interrogation implemented in the immediate aftermath of September 11.  Particular countries, such as Germany, go even further, expressly barring extradition when the defendant faces trial in an “extraordinary” court or for a “purely military” offense. Arguments that military commission jurisdiction fell within either or both of these bars may take years to resolve.    
Moreover, advocates for these detainees and others have mobilized substantial political support in Britain against extradition. Opposing extradition is already the cause du jour for some European celebrities.  Political opposition will strengthen if military commissions became the rule, rather than the exception.
In some cases, American investigators may not even be able to get their foot in the door of the cell of a detainee held abroad when military commissions are the norm.  As Assistant Attorney General Monaco suggested at last week’s ABA conference, the specter of military commissions may shut off access to suspected terrorists, and may hinder real-time information- sharing by our allies. Prompt detection and investigation of terrorist plots could be the NDAA’s unintended first casualty.  
These concerns are not new.  Former Assistant Attorney General David Kris discussed the issues in his indispensable article in the Journal of National Security Law and Policy, Law Enforcement as a Counterterrorism Tool.  Despite Senator Levin’s rejoinders, the NDAA’s waiver provisions only compound fears that the legislation will hamper extradition efforts.