interpreting the new language of the national defense authorization act: a potential barrier to the...

7/29/2019 Interpreting The New Language Of The National Defense Authorization Act: A Potential Barrier To The Extradition Of High Value Terror Suspects

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INTERPRETING THE NEW LANGUAGE OF THE NATIONAL

DEFENSE AUTHORIZATION ACT: A POTENTIAL BARRIER

TO THE EXTRADITION OF HIGH VALUE TERROR SUSPECTS

I.INTRODUCTION

On December 31, 2011, Congress signed into law the National

Defense Authorization Act (NDAA), which included hotly contested

language found in Subtitle D Counterterrorism.1

While the national

controversy centered primarily on whether the language granted

executive authority to indefinitely detain American citizens,2

another

potentially cumbersome consequence of the legislation lurks in thebackground. In Sections 1021 and 1022, the very language designed to

aid in the fight against terror may, in fact, unintentionally create a barrier

to the extradition of many, long-sought-after terror suspects taken into

custody outside of the United States.3

This unintended consequence

would prevent those same terror suspects, some of whom are high-

ranking members of al-Qaeda,4

from being extradited to the United

States to stand trial.

This Note examines the potential barriers to extradition that currently

exist between the United States and her European allies, and how the

language in Sections 1021 and 1022 of the NDAA may invoke theseobstructions, particularly with respect to Article 6 of the European

Convention on Human Rights (Convention), which guarantees the right

to a fair trial.5

How the United States interprets and applies the statutorylanguage dealing with the authority of the armed forces to detain

covered persons and to mandate military custody for foreign al-Qaeda

1. H.R. Res. 1540, 112th Cong. (2011) (enacted), available at

http://www.gpo.gov/fdsys/pkg/ BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf.

2. See, e.g., Erik Kain, President Obama Signed the National Defense AuthorizationAct - Now What?, FORBES (Jan. 2, 2012),

http://www.forbes.com/sites/erikkain/2012/01/02/president-obama-signed-the-national-

defense-authorization-act-now-what/; Amanda Simon, President Obama Signs Indefinite

Detention Into Law, ACLU (Dec. 31, 2011, 4:20 PM), http://www.aclu.org/blog/national-

security/president-obama-signs-indefinite-detention-law.

3. H.R. Res. 1540 (enacted).

4. See, e.g., Sean ONeill, Worldwide Trail of Bloodshed That Leads to Suburban

London, THE TELEGRAPH, Sept. 19, 2001,

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1340963/Worldwide-trail-

of-bloodshed-that-leads-to-suburban-London.html.

5. See European Convention on Human Rights art. 6, May 3, 2002, C.E.T.S. No.194, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-

5C9014916D7A/0/Convention_ENG.pdf.


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2012] NATIONAL DEFENSE AUTHORIZATION ACT 569

encompassing little inquiry into executive branch decisions.9 Non-

inquiry presumes the requesting country affords a fair trial to the suspect

returned to it.10 The U.S. policy of non-inquiry is based on four primaryprinciples: (1) the Constitution delegates responsibility for foreign affairs

to the executive branch and, as such, the courts are not to be involved in

scrutinizing foreign affairs; (2) the courts are ill-suited for the

investigation or scrutiny of foreign affairs and, thus, should not be

involved; (3) rendering judicial decisions affecting the prosecution of a

suspect by a foreign state impinges upon that nations sovereignty; and

(4) any judicial scrutiny hampers the process of extradition, thus

enabling criminals to elude prosecution.11

The American approach values

the international communitys respect for each nations sovereignty andrelies upon mutual cooperation, such that each country should strive to

accommodate another country in returning fugitives without questions,

for one day that country may need the favor returned.12

In stark contrast to the American judiciarys relatively passive role in

the extradition process is the European method of judicial inquiry. The

European method allows the judiciary to take a determinative role in

assessing the individual merits of each extradition case.13

This model

regularly inquires into a requesting [states] judicial procedure and

[modes] of punishment, ultimately refusing extradition if the potential

treatment or punishment of the suspect does not comport with thesending states viewpoints.

14The result has been an activist role on the

part of the European Court of Human Rights (European Court) to ensure

an individual will be treated properly by the requesting state before

allowing extradition.15

Naturally, human rights advocates prefer the

European method of judicial inquiry,16

and the European approach to

evaluating extradition requests highlights the rifts in Euro-American

methods of punishment.17

In fact, European human rights advocates have

been highly critical of American domestic legal policies, such as the

death penalty.18

As a result, European courts have delayed many pending

9. Id. See also Michael J. Bowe,Deportation as De Facto Extradition: The Matter

of Joseph Doherty, 11 N.Y.L.SCH.J.INTL &COMP. L. 263, 270-71 (1990) (explaining

the American approach to extradition and the American judiciarys limited role).

10. Medley, supra note 7, at 1223.

11. Id. at 1223.

12. Id.

13. Id. at 1224.

14. Id.

15. Id. at 1224-25.

16. Medley, supra note 7,at 1224, 1231.17. Id. at 1230.

18. Id. at 1224, 1231.


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570 THE WAYNE LAW REVIEW [Vol. 58: 567

extradition requests for terror suspects for years because the European

view of the death penalty equates to inhumane and degrading punishment

in violation of Article 3 of the Convention.19 In contrast, courts haveupheld extradition when the United States promises the sending state that

it will not seek the death penalty, even if it is available in the instant

case.20 More specifically in the case of terror suspects, courts have

upheld extradition when the United States further promises not to detain

the suspects in military custody and to try them in regularly constituted

civilian courts.21

These promises allow the sending state to fulfill

extradition requests while still maintaining individual human rights for

suspects as guaranteed by the Convention.

With the new language included in the NDAA, the United States willneed to continue to assure her European allies that those terror suspects

who fall under the language of Sections 1021 and 1022 will not be

subjected to the death penalty in violation of Article 3. Moreover, the

United States will need to ensure that those terror suspects will not be

tried in military tribunals, but rather in regular courts, to comport with

Article 6 of the Convention guaranteeing adequate due process of law.22

B. Soering Established an Individual Right to Petition the European

Court for Alleged Convention Violations, Creating a Significant

Obstruction to Extradition

Soering v. United Kingdom23

is the seminal case marking the current

nature of Euro-American extradition and highlighting the Europeanmethod of judicial inquiry.24Soering fundamentally changed the role of

the European judiciary with respect to extradition by vest[ing] rights inindividuals, not simply in states.25 In Soering, the European Court held

that the extradition of Jens Soering from the U.K. to the United States to

face murder charges with a potential death sentence would violate the

Convention, specifically Article 3.26

19. See, e.g., The Queen (on the Application of Adel Abdul Bary and Khalid Al-

Fawwaz) v. Secy of State for the Home Dept, [2009] EWHC 2068, [ 7-8] (U.K.)

[hereinafterAl-Fawwaz], available athttp:www.unhcr.org/refworld/pdfid/4ac332c12.pdf.

20. See, e.g., Soering v. United Kingdom, App. No. 14038188, 11 Eur. H.R. Rep. 439

(1989).

21. See, e.g., Al-Moayad v. Germany, 44 Eur. H.R. Rep. 258-59 13-14 (2007).

22. Council of Europe, European Convention on Human Rights, art. 6, 1 C.E.T.S.

No. 194 (May 3, 2002).

23. App. No. 14038188, 11 Eur. H.R. Rep. 439 (1989).

24. Soering, 11 Eur. H.R. Rep. at 439.

25. See Michael P. Shea,Expanding Judicial Scrutiny of Human Rights in ExtraditionCases After Soering, 17 YALE J.INTL L. 85, 86 (1992).



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In August 1988, the British government ordered Jens Soerings

surrender to the United States; however, Soering preempted the order by

petitioning the European Court. Soering claimed that his extradition tothe United States by the U.K. would expose him to the death row

phenomenon, thereby subjecting him to inhumane and degrading

treatment in violation of Article 3 of the Convention.27 He also claimed

violation of Article 6 because he would not be represented properly due

to a lack of legal aid in Virginia.28 In the end, the court determined that

because U.S. courts offer due process and a right to a fair trial, Article 6

had not been breached.29 But, the court also determined that the potential

imposition of capital punishment constituted a breach of Article 3.30

Except for the assurances provided by the United States that the Virginiacourt would not impose capital punishment, Jens Soering would have

completely avoided trial in the United States. Instead, these assurances

were pivotal to his extradition and subsequent trial in Virginia where he

was found guilty of the murders and sentenced to two consecutive life

terms.31

Soering is significant because it established the right of an individual

to submit a claim before the European Court regarding potential

Convention violations as they relate to pending extradition requests.32

Many terror suspects continue to fight extradition to the United States by

successfully employing this individual right.33 It is important that theUnited States understand how terror suspects utilize Articles 3 and 6 to

deter extradition. This understanding is instrumental as all levels of

American government interpret and apply the new statutory language of

Sections 1021 and 1022 of the NDAA to ultimately bringing terror

suspects to justice. Continuing to provide reliable assurances may prove

the lynchpin to future extraditions.34

27. Id. at 448. Mere threat of a potential death sentence was insufficient to bar

extradition because Article 2(1) of the Convention provides for the death penalty;however, until Soering, no court had interpreted Article 3 as bringing the death penalty

within the definition of inhuman or degrading treatment or punishment. Richard B.

Lillich, The Soering Case, 85 AM. J. INTL L. 128, 130-31 (1991). In fact, Soering

accomplished this for the first time by introducing the idea of the death row phenomenon

as violating Article 3.Id.


29. Id.

30. Id.

31. Soering v. Deeds, No. 99-6498, 217 F.3d 840, at *1 (4th Cir. June 30, 2000)

(Westlaw).


33. See, e.g., Al-Fawwaz,[2009] EWHC 2068.34. It is important to note that despite the seemingly uncertain nature of these

assurances, all assurances made to date have been upheld with a sterling record of 100%


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C. The European Court of Human Rights and the Role of Articles 3 and 6

as They Affect Extradition

Through the European Court on Human Rights,35

the European

Convention protects, inter alia, the right to life, liberty and security; the

right to a fair trial; the right to respect for private and family life;

freedom of thought, conscience, religion, and expression; and freedom of

assembly and association.36

In addition to securing rights for individuals,

the Convention prohibits torture, slavery and forced labor, arbitrary and

unlawful detention, and discrimination in the enjoyment of the rights and

freedoms secured by the Convention.37

Thus, the [Convention] is the

most developed system for the international protection of civil andpolitical rights, not necessarily in the sense of being the best devised, or

compliance on behalf of the United States, and have received utmost respect from the

European Court and Americas European allies. SeeSoering, 11 Eur. H.R. Rep. at 451-52

(stating that it is customary to accept the assurances of the requesting party and that all

previous assurances from the United States have been met with compliance); Al-Fawwaz,

[2009] EWCH (Admin.) at 51 (stating that historically the U.S. record of assurances is

remarkable). This demonstrates that the current system of extradition works because of

cooperative efforts with all parties involved understanding that to achieve the ultimate

goal of bringing a suspect to justice, the adjudicating and prosecuting authorities must

consider the weight and extent to which the extraditing country adheres to the European

Convention. See id.

35. The end of World War II saw the creation of the Council of Europe, which soon

proposed the European Convention on Human Rightsan international treaty aimed at

protecting fundamental freedoms and human rights. Who We Are, COUNCIL OF EUROPE,

http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en (last visited Sept.

26, 2012). Soon thereafter, the Council created the European Court of Human Rights,

which established a forum where individuals, organizations, and states could file claims

against the countries bound by the Convention. Id. Today, forty-seven countries haveratified the Convention.Id. These countries are bound by the judgments of the European

Court and are obliged to execute such judgments. Id. Most of the member nations have

incorporated the Conventions laws into their own national laws, and, while neither the

Council of Europe nor the European Court provide a mechanism for enforcement,

participating members acknowledge the finality of the judgments from the European

Court and purport to enforce them per the treatys obligations. EUROPEAN COURT OF

HUMAN RIGHTS, THE ECHR IN 50 QUESTIONS, 9-10, at 38 (2012), available at

http://www.echr.coe.int/NR/rdonlyres/5C53ADA4-80F8-42CB-B8BD-

CBBB781F42C8/0/FAQ_ENG_A4.pdf.

36. See Council of Europe, European Convention on Human Rights arts. 2, 5, 6, 8-11,

May 3, 2002, C.E.T.S. No. 194, available at

http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf.

37. Id. at arts. 3, 4, 7, 14.


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having a supervisory body with the most sophisticated reasoning, but as

having the most extensive interpretative case law.38

With over fifty years of case law and experience, the European Courthas become an integral part of European jurisprudence, and as such, is an

important piece in understanding the extradition process. This is

particularly true when the requesting country differs in regards to certain

rights established by the Convention. If the requesting countrys laws

and practice would violate the Convention, then the European country on

request cannot honor the extradition request without itself violating the

Convention. In fact, case law has revealed that European countries will

not extradite a suspect in cases where the requesting country will likely

violate an article of the Convention.

1. Article 3 Prohibition of Torture

Article 3 most closely parallels U.S. Constitutional Amendment VIII

prohibiting cruel and unusual punishment.39

Article 3 plainly states, [n]o

one shall be subjected to torture or to inhuman or degrading treatment or

punishment.40

This Article has been the centerpiece of many fights

against extradition to the United States from European countries due in

large part to the continued use of capital punishment in the United

States.41

2. Article 6 Right to a Fair Trial

Article 6 most closely parallels U.S. Constitutional Amendment V in

providing for the right to a fair trial and due process of law for the

criminally charged.42

Article 6 includes inter alia the right to a fair trial

38. IAIN CAMERON, THE EUROPEAN CONVENTION ON HUMAN RIGHTS, DUE PROCESS

AND UNITED NATIONS SECURITY COUNCIL COUNTER-TERRORISM SANCTIONS, 21 (2006),available at

http://www.coe.int/t/dlapil/cahdi/Texts_&_Documents/Docs%202006/I.%20Cameron%2

0Report%2006.pdf.

39. U.S. CONST. amend. VIII.

40. Council of Europe, European Convention on Human Rights art. 3, May 3, 2002,

C.E.T.S. No. 194, available athttp://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-

4318-B457-5C9014916D7A/0/ENG_CONV.pdf.

41. The United States remains the only western country and one of only 58 countries

in the entire world that retains use of capital punishment. Death Sentences and

Executions 2010, AMNESTY INTL (Mar. 2011),

http://www.amnesty.ie/sites/default/files/Use%20of%20Death%20Penalty%202010.pdf.

The only other European country to retain the death penalty is Belarus, whichincidentally is not a party to the Convention. Id.

42. U.S. CONST. amend. V.


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by an independent and impartial tribunal, the presumption of innocence,

that legal assistance will be provided in the event the accused cannot

afford to defend himself, and the right to examine the evidence againsthim.43

Modern extradition cases demonstrate that the American view on

capital punishment, and whether such punishment amounts to inhuman

and degrading (or cruel and unusual) punishment, differs greatly from

the European view so much so that it is a barrier to extradition. To date,

Article 6 and whether or not American courts provide a fair trial has not

proven to be a barrier to extradition because European courts are

persuaded that American courts offer more than adequate due process for

those on trial.

44

Military tribunals however, present a different concern.Tribunals pose a threat to extradition in that terror suspects may claim

Article 6 violations, arguing that a trial by military tribunal deprives

them of due process and denies them a right to a fair trial.

D. Do Military Commissions Violate Article 6?

The past decade highlighted the difficulties of achieving success

within the military commission process and cast a dark shadow of doubt

43. Council of Europe, European Convention on Human Rights art. 6, May 3, 2002,

C.E.T.S. No. 194 states in full:

1. In the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law. Judgment shall

be pronounced publicly but the press and public may be excluded from all or part

of the trial in the interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection of the private

life of the parties so require, or to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would prejudice the interests of

justice.

2. Everyone charged with a criminal offence shall be presumed innocent untilproved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of

the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or,

if he has not sufficient means to pay for legal assistance, to be given it free when

the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same conditions as

witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak thelanguage used in court.

44. See, e.g.,Al-Moayad, 44 Eur. Ct. H.R. at 16.


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as to their efficacy.45 The examples of al-Fawwaz and the other terror

suspects currently fighting extradition demonstrate that the European

community expects assurances that the United States will try thesesuspects in regularly constituted courts and not by military

commissions.46 The past ten years have produced no evidence that the

European community will now be more comfortable with trial by

military commission than it was before.47 It is safe to assume that if the

United States wants to extradite these terror suspects, it will have to

provide the same assurances, namely a promise of trial by regularly

constituted courts with no prospect of the death penalty and avoidance of

detention by the military.

Military commissions have a long history in the United States,reemerging at the forefront of the political landscape after the September

11th terrorist attacks when President George W. Bush deemed terror

suspects enemy combatants to be tried by military tribunals instead of in

civilian courts.48

The prosecution of these cases was soon mired in

protracted legal challenges, and in 2006, President Bush signed the

Military Commissions Act (MCA) to authorize and establish procedures

for military tribunals in response to the Supreme Court decision in

Hamdan v. Rumsfeld.49

Following Hamdan, pro-military tribunal

advocates fought hard to pass legislation limiting terror suspects solely to

military tribunals, arguing inter alia that federal law enforcement andcriminal procedures were inadequate to garner much needed intelligence

from detained suspects and that the American public would not stand for

terrorist trials in civilian courts that are essentially in their own

backyards.50

Those opposed to limiting terror suspects to military

45. See Gareth Peirce,Americas Non-Compliance: The Case Against Extradition, 32

LONDON REV. BOOKS 9 (2010), available at http://www.lrb.co.uk/v32/n09/gareth-

peirce/americas-non-compliance.

46. See, e.g., Al-Fawwaz, [2009] EWHC (Admin.) at 97; Al-Moayad, 44 Eur. Ct.H.R. at 13.

47. See, e.g.,Al-Fawwaz, [2009] EWHC (Admin.) at 97.

48. See Military Commissions, N.Y. TIMES (May 4, 2012),

http://topics.nytimes.com/top/reference/timestopics/subjects/d/detainees/military_commis

sions/index.html.

49. 548 U.S. 557, 560 (2006) (holding military commissions lack the power to

proceed because [their] structures and procedures violate both the [Uniform Code of

Military Justice] and the . . . Geneva Conventions.). See also Carlissa Carson, Yes We

Can Revise the Current Military Commission System, but Why?, 25 CONN. J. INTL L.

389, 389 (2010).

50. See, e.g., Julian E. Barnes, Sen. Ayotte Keeps Fighting for Military Trials for

Terror Suspects, WASH. POST, Oct. 21, 2011,http://blogs.wsj.com/washwire/2011/10/21/sen-ayotte-keeps-fighting-for-military-trials-

for-terror-suspects/.


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tribunals encompassed a wide variety of groups including law

enforcement officials, human rights advocates, academics, and legal

professionals.51 Law enforcement argued primarily that such a limitationwould burden the United States unnecessarily in the fight against

terrorism; a fight that should use all available assets, including the FBI

and intelligence agencies.52 Human rights advocates, academics, and

legal professionals argued that in fighting the war on terror, it was

critical the United States abide by its long-standing commitments to due

process of law and to international humanitarian law, such as the Geneva

Conventions.53

In 2009, President Barack Obama signed into law a revised version

of the MCA intended to address concerns that the 2006 MCA ran afoulof the Geneva Conventions and the U.S. Constitution.54

However, even

with these revisions, the 2009 MCA failed to bring the military tribunal

system into compliance with international human rights law.55

For

instance, the 2009 MCA did nothing to revise the controversial Section 7

of the 2006 MCA, which means Section 7 continues to strip the federal

court system of its capacity to review petitions for writs of habeas

corpus.56

Unsatisfied that the 2006 and 2009 MCAs went far enough, and

despite the U.S. Supreme Courts ruling in Hamdan, some conservative

members of Congress continued to fight to limit trials of terror suspectsexclusively to military tribunals, thereby cutting the judiciary entirely out

of the terror suspect trial loop.57

Meanwhile, the federal courts spent the

51. See, e.g., Restoring Habeas Corpus Rights Eliminated by the Military

Commissions Act, U. CHI. FAC. BLOG (Mar. 5, 2007),

http://uchicagolaw.typepad.com/faculty/2007/03/restoring_habea.html; Charlie Savage &

Scott Shane,Experts Urge Keeping Two Options for Terror Trials, N.Y.TIMES (Mar. 8,

2010), http://www.nytimes.com/2010/03/09/us/politics/09terror.html; FBI Director

Criticizes Bill Requiring Suspected Terrorists to Be Held By Military, FOX NEWS.COM,

(Nov. 29, 2011), http://www.foxnews.com/politics/2011/11/29/fbi-director-criticizes-bill-requiring-suspected-terrorists-to-be-held-by/.

52. Josh Meyer, FBI Planning a Bigger Role in Terrorism Fight, L.A. TIMES (May

28, 2009), http://articles.latimes.com/2009/may/28/nation/na-fbi28.

53. Carson, supra note 49, at 395. See also Stephen I. Vladeck, The Laws of War as a

Constitutional Limit on Military Jurisdiction, 4 J. NATL SECURITY L. & POLY 295

(2010); Myth vs. Fact: Trying Terror Suspects in Federal Courts,

HUMANRIGHTSFIRST.ORG, http://www.humanrightsfirst.org/wp-

content/uploads/pdf/USLS-Fact-Sheet-Federal_Court_Myth_vs_Fact.pdf (last visited

Oct. 17, 2012).

54. Carson, supra note 49, at 390.

55. Id.

56. Id.57. See, e.g., Barnes, supra note 50; see also Mason C. Clutter, Guantanamo: Ten

Years After 9/11, 38 HUMAN RIGHTS 2, 2 (2011).


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past decade successfully trying and convicting hundreds of suspects,58

perhaps demonstrating the irrational fear of the pro-military tribunal

advocates that those who have their day in court may not be convicted. Inaddition to these convictions, the Supreme Court granted certiorari to

four Guantanamo cases, subsequently finding in favor of the detainees,59

thereby demonstrating the full range of the federal court system.

On December 31, 2011, these failed attempts to limit trials to

military tribunals finally met measured success when President Obama

signed the NDAA into law.60

Subtitle D of the NDAA, entitled

Counterterrorism includes long-sought-after provisions designed to

limit terror suspect trials to military tribunals, effectively by-passing the

federal court system.

61

In particular, Sections 1021 and 1022 address theauthority and action required by the U.S. military to detain terror

suspects indefinitely pending disposition under the law of war.62

Even

with the success of passage, these provisions were modified enough from

their original hard-lined proposals to result in merely codifying existing

practices under the 2001 Authorization for Use of Military Force

(AUMF) and the 2006 and 2009 MCAs.63

As this Note reveals, these modifications are crucial because they

allow the United States to continue to provide assurances necessary to

secure the extradition of known terrorists. Viewed another way, this

codification greatly hampers both federal law enforcement and theObama Administration in their respective roles in the fight against

terrorism, making it more difficult for the United States to treat terror

suspects on a case-by-case basis. In order to bring some of the most

sought-after terrorists to justice, the United States must continue to

provide and uphold assurances to her European allies that the terror

suspects being extradited to the United States will not be subjected to

inhuman or degrading treatment and will be given a fair and impartial

trial. Without these assurances, the U.K. and Europe will not likely

58. Brian C. McComas, Article III by Default: Constitutional Requirements for the

Capital Prosecution of Unprivileged Enemy Belligerents, 44 U.S.F. L. REV. 979, 1004

(2010) (arguing in favor of federal trials as opposed to military commissions due in large

part to the success of the federal courts in obtaining convictions, and the inability of

military commissions to procure a constitutionally sound capital sentence).

59. Clutter, supra note 57, at 2.

60. H.R. Res. 1540, 112th Cong. (2011) (enacted).

61. Id.

62. Id.

63. Carl Levin, U.S. Senator, Senate Floor Speech on the Detainee Provision in the

Defense Authorization Bill (Nov. 18, 2011), available athttp://www.levin.senate.gov/newsroom/speeches/speech/senate-floor-speech-on-the-

detainee-provision-in-the-defense-authorization-bill [hereinafter Senate Floor Speech].


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extradite the currently detained high-value terror suspects to the United

States.

1. The Procedural Shortcomings Amount to a Lack of Due Process,

and the 2009 MCA Falls Short in Correcting Deficiencies

As mentioned earlier, the Obama Administration sought many

changes to the highly criticized 2006 MCA. But even with the 2009

modifications, the use of military tribunals under the MCA and AUMF

still fails to meet international human rights standards for a fair and

impartial trial, most notably because of the lack of independence and

impartiality.

64

The importance of a tribunal being independent and

64. Carson, supra note 49, at 398-402.

The US signed and ratified the International Covenant on Civil and Political

Rights [(ICCPR)]. Article 9(4) of the Covenant requires that persons detained

be entitled to proceedings before a court to determine the lawfulness of their

detention. When considering the USs compliance with the ICCPR, in 2006, the

United Nations (UN) Human Rights Committee noted its concern that

Combatant Status Review Tribunals [(CSRT)] do not offer the required

safeguards of due process because CSRTs lack independence from the

Executive and the Army. . . . The CSRT process of review does not meet the

standards set forth in Article 9(4) of the ICCPR, nor does the process meet the

requirements of other international treaties and customary law . . . A military

commission suffers from similar deficiencies. First, a military judge presides

over a military commission. Military judges certainly are not impartial in the

same sense as judges presiding over Article III courts because military judges

are actively involved in the military and, therefore, the War on Terror. The

influence of the President, who ultimately governs a CSRTs process and a

military commission, strips the proceedings of any potential independence or

impartiality. Specifically, Ex Parte Quirin and its history provide a clear

example of the undue Executive influence and bias that can affect military

commissions during times of war. . . . The MCA . . . provides for limited

review of current military tribunals. Limited review is available only for those

wishing to have their CSRT hearing or military commission proceedingquestioned. The US District of Columbia Circuit Court (DC Circuit Court)

has jurisdiction to review status determinations of the CSRT. But, essentially,

the Court may only review whether the CSRT adhered to its own procedures, as

specified by Executive Branch personnel and the Secretary of Defense. And,

the DC Circuit Court is basically only allowed to question whether the military

commission adhered to its own standards and procedures. With respect to

military commission sentences, a detainee must first appeal to the convening

authority (the authority that must approve CSRT decisions), and then to the US

Court of Military Commission Review before appealing to the DC Circuit

Court. Given the limited nature of the review set forth by the Executive, it is as

if the President is stating that he wishes to detain and try individuals without

the interference of the Judicial Branch. This, in effect, broadens the role of thePresident in both CSRTs and military commissions. And, impartiality cannot be

expected given that the President ordered status determinations via CSRTs and


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impartial is such that it requires that judges be both de facto impartial

and independent as well as appear to be impartial and independent.65

Two more glaring deficiencies in military tribunals include the lackof the presumption of innocence and denial of access to the writ of

habeas corpus. In Combatant Status Review Tribunals (CSRT), which

are precursors to a detainees trial by military commission, instead of a

presumption of innocence favoring the defendant, there is a rebuttable

presumption in favor of the governments evidence.66 CSRTs provide a

rebuttable presumption that the governments evidence submitted to

determine whether the detainee is an enemy combatant is genuine and

accurate.67

To date, detained persons held in the United States have relied

on habeas corpus to show that their detention is not in accord with dueprocess,68

but this important check still does not exist for detainees held

under U.S. control outside of the United States.69

Other procedural deficiencies with the military commission process

include deprivation of the right to counsel (particularly in the beginning

stages), the right to be informed (with most restrictions to information

surrounding classified information, with classification being determined

by the prosecution), the right to be present (the prosecution may exclude

the detainee from his own hearing for reasons of national security, as

determined by the prosecution), the requirement for equality (detainees

are usually denied requests to call witnesses and in 89% of the tribunals,no evidence whatsoever was presented on the detainees behalf), and

the admittance of coerced evidence.70

The 2009 MCA made slight improvements to some of these

deficiencies by stating that the defense shall have a reasonable

opportunity to obtain witnesses and evidence, and by entirely barring

the use of statements obtained through cruel, inhuman or degrading

treatment.71

However, the new witness and evidence requirements of the

2009 MCA fall short of meeting the requirements of equal opportunity

among the parties. In addition, the bar to improperly obtained statements

trials via military commissions and, at the same time, the Executive Branch

essentially determines what the procedures and review of those tribunals will

be.

Id.

65. CURTIS F.J. DOEBBLER, INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS LAW

110 (2006) (emphasis added).

66. Carson, supra note 49, at 405.

67. Id.

68. Id. at 407 (referring to Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004)).

69. Id. (citing Boumediene v. Bush, 553 U.S. 723, 727 (2008)).70. Id. at 402-05.

71. Id.


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does not apply to former CSRTs.72 Ensuring due process, access to

counsel, and access to all proceedings and all evidence are critical

guarantees that must be provided to offer a fair trial.73 As it stands,military commissions, despite some marked improvements, are not likely

to meet the standards necessary to establish the right to a fair trial as set

forth in Article 6 of the Convention.

2. European Court Insight on Article 6 Compliance

What are the expectations of the European Court relative to Article 6

compliance? In twenty-two years of jurisprudence handed down from the

European Court since Soering, the court never found an expulsion, until2012, that violated Article 6 despite the claims repeated assertion.74

As

Soering established, the European Court demands a showing of areal

risk of a flagrant denial of justice to invoke a claim under Article 6.75

This means that the claimant must meet a higher burden under Article 6

than Article 3; but in assessing whether this test has been met, the Court

considers that the same standard and burden of proof should apply as in

Article 3 expulsion cases.76

The court stated that the Article 6 test is a

stringent test of unfairness and that a flagrant denial of justice goes

beyond mere irregularities or lack of safeguards in the trial procedures

such as might result in a breach of Article 6 if occurring within theContracting State itself.

77In defining flagrant denial of justice, the court

noted that it is:

[S]ynonymous with a trial which is manifestly contrary to the

provisions of Article 6 or the principles embodied therein.

Although it has not yet been required to define the term in more

precise terms, the Court has nonetheless indicated that certain

forms of unfairness could amount to a flagrant denial of justice.

These have included:

conviction in absentia with no possibility subsequently

to obtain a fresh determination of the merits of the

charge;

72. Carson, supra note 49, at 402-05.

73. See generally Niki Kuckes, Civil Due Process, Criminal Due Process, 25 YALE L.

&POLY REV. 1, 5-6 (2006).

74. Othman (Abu Qatada) v. United Kingdom, App. No. 8139/09, Eur. Ct. H.R. 260

(Jan. 17, 2012), available athttp://www.unhcr.org/refworld/pdfid/4f169dc62.pdf.

75. Id. at 258.76. Id. at 261.

77. Id. at 260.


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a trial which is summary in nature and conducted with

a total disregard for the rights of the defence;

detention without any access to an independent and

impartial tribunal to have the legality [of] the detention

reviewed; [and]

deliberate and systematic refusal of access to a lawyer,

especially for an individual detained in a foreign

country.78

On January 17, 2012 in Othman (Abu Qatada), the court determined

that evidence obtained by torture would amount to a flagrant denial of

justice invoking Article 6.79 The court went further to state that similar

considerations may apply in a case that presented evidence obtained by

other forms of ill-treatment that fall short of torture as well.80

In addition

to the guidelines for Article 6 that Othman now provides, the European

Court previously made clear that the guarantees of a right to a fair trial

apply to all types of judicial proceedings, even those deemed

administrative.81

Moreover, the court has stated that special proceedings,

such as military court-martial, may be subject to Article 6 scrutiny

because of the serious criminal nature of the crime with which thedefendant had been accused.

82Thus, it is safe to assume that military

tribunals, as well as their administrative precursors, CSRTs, are very

likely to amount to a flagrant denial of justice under Article 6.

III.ANALYSIS OF HOW THE NDAAAFFECTS EXTRADITION

Understanding how the European Court views Article 6 compliance

and the current perceptions of the U.S. military tribunal system, one can

surmise that the European Court is likely to block extradition if a suspect

will face trials in a military tribunal. Current cases demonstrate how

78. Id. at 259-60 (internal citations omitted).

79. Id. at 264.

[F]undamentally, no legal system based upon the rule of law can countenance the

admission of evidence however reliable which has been obtained by such a

barbaric practice as torture. The trial process is a cornerstone of the rule of law.

Torture evidence damages irreparably that process; it substitutes force for the rule

of law and taints the reputation of any court that admits it.

Id.

80. Othman, Eur. Ct. H.R. at 267.

81. DOEBBLER, supra note 65, at 108.82. Id. at 109 (citing Mills v. United Kingdom, App. No. 35685/97, Eur. Ct. H.R. 20

(2001)).


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terror suspects have successfully employed Article 3 to deter extradition,

and forecast the future use of Article 6.83 These cases indicate that it

would be wise for the United States to continue to grant assurances thatterror suspects will not be at risk of the death penalty, military detention,

or trial by military commission. How the U.S. government interprets and

applies the language of the NDAA, specifically Sections 1021 and

1022,84 will prove pivotal in the fight to win extradition of these known

terror suspects and ultimately bring them to justice.

A. Recent Extradition Cases

Recent cases of terror suspects invoking Article 3 to fight extraditionto the United States exemplify how the European Court may respond to

Article 6 claims. These cases provide insight into how the United States

should proceed with regard to statutory interpretation of the NDAA,

particularly when requesting extradition of terror suspects.

1. Al-Fawwaz, Bary, and Eidarous Have Successfully Thwarted

Extradition Since 1998 Using Article 3

Three terror suspects, who were arrested in London in the late 1990s,

have successfully fought extradition for over a decade using Article 3.Khalid al-Fawwaz, alleged not only to be an al-Qaeda member, but also

one of Osama bin Ladens key lieutenants,85 was indicted for the 1998

U.S. embassy bombings in East Africa which killed 224 people and

injured more than 4,500.86 Adel Abdel Bary and Ibrahim Eidarous, both

alleged members of Egyptian Islamic Jihad, operated alongside al-

Fawwaz in the London al-Qaeda cell,87

and were subsequently arrested

on an extradition warrant following a request from the United States in

1999 for their involvement in the bombings.88

For several years, al-

Fawwaz, Bary, and Eidarous successfully fought extradition through a

83. See discussion infra Part III.A.1.

84. H.R. 1540, 1021-1022, 112th Cong. (2011) (enacted).

85. ONeill, supra note 4; Al-Fawwaz v. Governor of Brixton Prison, [2001] UKHL

69, [2002] 1 A.C. (H.L.) 556, 565-66 (appeal taken from Eng.).

86. Id. See also Governor of Brixton Prison, UKHL 69 at 566-67; United States v.

Bin Laden, 92 F. Supp. 2d 225, 230 nn. 9, 11 (S.D.N.Y. 2000); David Rohde, U.S. Says It

Has Fingerprints of Embassy Bombing Suspects, CAGE PRISONERS (July 13, 1999),

http://www.cageprisoners.com/learn-more/news/item/453-us-says-it-has-fingerprints-of-

embassy-bombing-suspects.

87. Governor of Brixton Prison, UKHL 60 at 566-67; ONeill, supra note 4.

88. Two Arrested in U.S. Embassy Bombings, WASH. POST (July 12, 1999),http://www.washingtonpost.com/wp-

srv/inatl/longterm/eafricabombing/eafricabombing.htm.


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series of appeals within the U.K.89 In 2008, the U.K. Secretary of State

issued warrants for their extradition to the United States, finding that the

U.S. government met the prima facie case and provided reliableassurances.90 Thus, the men would not be at risk of the death penalty,

indefinite detention or trial by a military commission.91

Eidarous was diagnosed with advanced cancer, put on house-arrest,

and subsequently died in 2008.92 In 2009, al-Fawwaz and Bary began

their final appeal against the 2008 findings of the Secretary of State, with

the British High Court of Justice finding no breach of Article 3, and al-

Fawwazs claim for breach of Article 6 unsubstantiated.93 They soon

appealed to the European Court and the case is still pending.94

89. Warren Hoge, A Nation Challenged: In Britain; Court Approves Extraditions In

Bombings of U.S. Embassies, N.Y. TIMES (Dec. 18, 2001),

http://www.nytimes.com/2001/12/18/world/nation-challenged-britain-court-approves-

extraditions-bombings-us-embassies.html.

90. Bary v. Secy of State, [2009] EWHC 2068 (Admin.) [ 7] (Appeal taken from

Eng.) (citing diplomatic notes issued by the U.S. Embassy in London, which stated that

the United States would neither seek nor carry out the death penalty; that the United

States would try the men before a federal court with the full panoply of rights and

protections that would otherwise be provided to a defendant facing similar charges; that

the United States would not prosecute the men by a military commission or designate

them enemy combatants; and that if either applicant were acquitted or completed any

sentence imposed or if the prosecution against them were discontinued, the U.S.

authorities would return them to the U.K., if so requested).

91. Ahmad v. United Kingdom, Eur. Ct. H.R. Application nos. 66911/09 and

67354/09, 13 (Dec. 21-22, 2009), available at

http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=85053747&skin=hudoc-cc-

en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=26387&hig

hlight=bary.

92. See Jamie Pyatt & Brian Flynn,Doesnt It Make You Sick: Evil al-Qaida Terrorist

Ibrahim Eidarous Sat Alongside Ordinary Patients, THE SUN,

http://www.thesun.co.uk/sol/homepage/news/153287/Doesnt-it-make-you-

sick.html?print=yes (last visited Jan. 5, 2013); Duncan Gardham, U.S. Most WantedTerrorist Suspect in New Extradition Fight in Britain, CAGE PRISONERS (Feb. 12, 2009),

http://www.cageprisoners.com/learn-more/news/item/464-us-most-wanted-terrorist-

suspect-in-new-extradition-fight-in-britain.

93. Al-Fawwaz, EWHC 2068, at 97-100. In addition to his Article 3 claims, al-

Fawwaz argued under an Article 6 claim that because the United States designated him a

global terrorist and placed him on the U.S. Treasury Office of Foreign Assets Controls

list of Specially Designated Nationals and Blocked Persons, there was a real risk of a

flagrant denial of the right to a fair trial guaranteed by [A]rticle 6 of the ECHR and/or

[sic] he might be prejudiced at his trial by reason of his nationality. Id. at 84-86. Al

Fawwaz contended that the risk was due to an unnecessary public prejudgment of guilt by

the President of the United States.Id. The High Court soundly rejected this claim.Id. at

98(4).94. See Ahmad v. United Kingdom, Eur. Ct. H.R. Application nos. 66911/09 and

67354/09, 13(Dec. 21-22, 2009).


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If the United States does not uphold the original assurances provided

in 2004, the European Court could deny extradition of these long-sought-

after terror suspects, destroying an otherwise perfect record of honoringthe assurances the United States has provided to the U.K. and her

European allies. The implications would disrupt the ultimate goal of

bringing wanted terrorists to justice. It is imperative that the United

States maintain the assurances as provided in 2004 and demonstrate that

the new statutory language of the NDAA does not impede the President

from dealing with each terror suspect case on an individual basis and as

necessary to continue to effectively fight the war on terrorism.

2. Al-Moayad Successfully Extradited Based on Assurances

Mohammed Ali Hassan al-Moayad is a Yemeni citizen who was

arrested in Germany in January 2003.95

The United States issued a

warrant for his arrest and extradition, charging him with providing

money, weapons, and communications equipment to terrorist groups,

[particularly] al-Qaeda and Hamas[;] with recruiting new members

between 1997 and 2003; and with membership [in] the two terrorist

organizations.96

By May 2003, the United States provided an assurance

that al-Moayad would not be prosecuted in front of a military tribunal or

any other extraordinary court.97

Al-Moayad then made threeunsuccessful appeals, all of which the court rejected in favor of

extradition.98

The Frankfurt Main Court of Appeal stated that there was

nothing to warrant the conclusion that [he] might be subjected to unfaircriminal proceedings or torture in the United States because the United

States assurance provided explicitly for prosecution in ordinary criminalcourts.99 Additionally, the court commented that:

[W]orrying reports about inhuman treatment of prisoners

suspected of terrorism concerned almost without exception

prisoners in Guantanamo Bay (Cuba) and Bagram (Afghanistan)

and in some third countries. It could not be concluded from

existing press reports on the treatment of these prisoners that

ordinary criminal proceedings in the United States would not

95. Al-Moayad v. Germany, 44 Eur. H.R. Rep., at 257 4.

96. Id. at 257 6 & 258 11.

97. Id. at 258 13.98. Id. at 258-59, 14-16.

99. Id. at 259 14.


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meet the minimum standards of due process of law or would

infringe the prohibition on torture.100

On November 14, 2003, Germany authorized extradition; two days

later, the U.S. Air Force extradited al-Moayad to the United States.101

A

federal court subsequently convicted him and sentenced him in July 2005

to seventy-five years imprisonment for conspiring to support al-Qaeda

and Hamas, providing material support for Hamas, and for attempting to

materially support al-Qaeda.102

Al-Moayad demonstrates the sending states reliance upon U.S.

assurances that a suspect would not be placed in military detention or

tried before a military tribunal. It also shows that the European view ofthe American federal justice system is that it affords due processproviding the suspect a fair trial and humane treatment in prison.

3. Assurances are Everything in Extradition

These examples demonstrate the pivotal nature of assurances from

the United States in gaining extradition of terror suspects. The U.K.

cases103

demonstrate the successful use of the appeals process to delay

extradition. The German case104

exemplifies the entire process, showing

that successful extradition relied on assurances provided and resulted inthe successful prosecution of a known terrorist. These examples make

the case that assurances must continue to be provided and upheld by the

United States, despite the language in the NDAA.105

As written, the

statutory language is an impediment, and to overcome this newly erected

barrier to extradition, the President must proactively invoke the waiver

for national security.

B. Sections 1021 and 1022 Contain Language That Include Terror

Suspects such as al-Fawwaz, Bary, and al-Moayad

The language in Sections 1021 and 1022 of the NDAA106 raises

issues which invoke potential Article 3 and Article 6 violations.107 They

100. Id. at 16.

101. Al-Moayad, 44 Eur. H.R. Rep. at 262 24.

102. Id. at 263 28.

103. See, e.g., Al-Fawwaz v. Governor of Brixton Prison, [2001] UKHL 69, [2002] 1

A.C. (H.L.) 556, 565-66 (appeal taken from Eng.).

104. SeeAl-Moayad, 44 Eur. H.R. Rep. SE22.

105. H.R. 1540, 112th

Cong. (2011) (enacted).106. Id. 1021-1022.

107. See European Convention on Human Rights art. 3 & art. 6, Dec. 10, 1948.


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include: whether the language includes suspects captured in Europe;

whether extradited suspects will be indefinitely detained by the military;

and whether extradited suspects trials will be statutorily limited tomilitary commissions.

In fact, Sections 1021 and 1022 do include the terror suspects

currently held in the U.K. and are likely to encompass those who may be

captured in the future in the U.K. and Europe as the war against terrorism

persists.108 With that in mind, the statutory language provides enough

leeway that the United States could continue offering assurances to her

European allies that it would not transfer or hold terror suspects in

military custody and that they would be tried in regularly constituted

civilian courts.

109

With the proven success rate of the U.S. judicialsystem in prosecuting terrorists, this would ensure that these terror

suspects are finally brought to justice. A closer look at Sections 1021 and

1022 is in order.

1. Section 1021

Section 1021 codifies the executive branchs authority to detain

persons covered by the 2001 [AUMF]110

pending disposition under the

law of war.111

The text specifically states in paragraph (d) that it is not

intended to limit or expand the authority of the President or the scope ofthe [AUMF].

112In the Presidents signing statement on the NDAA, he

affirmed that the authority it describes was included in the 2001 AUMF,

as recognized by the Supreme Court and confirmed through lower courtdecisions since then.113 Both the President and Congress agree that this

Section codifies existing authority. This provides some assurance that theintent is not to expand or change the current techniques which could

prove useful in accomplishing extradition.

108. See H.R. 1540 1021(b), 1022(a)(2).

109. See id.

110. H.R. Res. 1540 (enacted); see Statement by the President on H.R. 1540, OFFICE

OF THE PRESS SECY, THE WHITE HOUSE (Dec. 31, 2011) (citing S.J. Res. 23, 107th Cong.

(2001) (enacted)), available at http://www.whitehouse.gov/the-press-

office/2011/12/31/statement-president-hr-1540 [hereinafter Presidential Statement].

111. See generally Marty Lederman & Steve Vladeck, The NDAA: The Good, the Bad,

and the Laws of War-Part I, OPINIO JURIS (Dec. 31, 2011),

http://opiniojuris.org/2011/12/31/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/;

Benjamin Wittes & Robert Chesney, NDAA FAQ: A Guide for the Perplexed, LAWFARE

(Dec. 19, 2011), http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-

perplexed/.112. H.R. 1540 1021(d).

113. Id.


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In addition to codification of authority, subsections 1021(b) and (c)

define coveredpersons and disposition under law of war.114 Section

1021(b) defines a covered person as anyone who planned, authorized,committed or aided the terrorist attacks of September 11, 2001, and

anyone who was a part of or substantially supported al-Qaeda, the

Taliban, or associated forces that are engaged in hostilities against the

United States or its coalition partners, including any person who has

committed a belligerent act or has directly supported such hostilities in

aid of such enemy forces.115

Section 1021(c) lays out four alternatives for the disposition under

the law of war of a covered person per Section 1021(b).116

These include:

(1) Detention under the law of war without trial until the end ofthe hostilities authorized by the [AUMF].

(2) Trial under chapter 47A of title 10, United States Code (as

amended by the Military Commissions Act of 2009 (title XVIII

of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal

having lawful jurisdiction.

(4) Transfer to the custody or control of the persons country of

origin, any other foreign country, or any other foreign entity.117

Section 1021 certainly includes the terror suspects currently held in

the U.K., even those arrested before September 11, 2001. The

alternatives for disposition under the law of war presumably include a

regularly constituted civilian court. Thus, Section 1021 alone does not

pose any problems for extradition and allows the United States the ability

to provide assurances that it would try terror suspects in a manner

consistent with the Conventions notion of a right to a fair trial.

2. Section 1022

While Section 1021 is merely an authorizing provision, Section 1022

is action-oriented.118

It requires the armed forces to detain a covered

114. H.R. 1540 (enacted) 1021(b)-(c).

115. Id.

116. See id. 1021(b)-(c).117. Id. 1021(c)(1)-(4).

118. See id. 1022.


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person who is captured in the course of hostilities authorized by the

[AUMF] in military custody pending disposition under the law of

war.119 Section 1022(a)(2)-(3) takes its definitions of covered personsand disposition under law of war from Section 1021(b)-(c).120

Additionally, Section 1022(a)(2) adds to the definition of covered

persons, requiring they be found:

(A) to be a member of, or part of, al-Qaeda or an associated

force that acts in coordination with or pursuant to the direction of

al-Qaeda; and

(B) to have participated in the course of planning or carrying outan attack or attempted attack against the United States or its

coalition partners.121

Section 1022(a)(4) provides the President the option to submit a

waiver to avoid automatic military detainment of covered persons, if the

President submits to Congress a certification in writing that such a

waiver is in the national security interests of the United States.122

Section 1022(b) states that the requirement for military detention is not

applicable to U.S. citizens or lawful resident aliens.123

Thus, Section 1022 presents unique challenges by requiring militarydetention unless the President invokes the waiver for national security.

Moreover, the phrase who is captured in the course of hostilities begs

the question of whether persons picked up in Europe, clearly outside the

designated combat theater, are included in the military detention

requirement of Section 1022.

3. The Implications of Sections 1021 & 1022 on Extradition

Under the text of the two provisions, the terror suspects awaiting

extradition from the U.K. to the United States fall squarely within thedefinitions of covered persons under both Sections of the NDAA;

however, Section 1022 provides an additional element that may exclude

119. Id. 1022(a)(1) (emphasis added).

120. See H.R. 1540 (enacted) 1022(a)(2)-(3) and 1021(b)-(c).

121. Id. 1022(a)(2)-(3).

122. Id. 1022(a)(4).

123. Id. 1022(b). Section 1022(b)(1) clearly states that Section 1022 does not extend

to citizens of the United States. Id. 1022(b)(1). Section 1022(b)(2) is less

straightforward, stating the requirement to detain does not extend to a lawful residentalien of the United States on the basis of conduct taking place within the United States,

except to the extent permitted by the Constitution of the United States.Id. 1022(b)(2).


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the same suspects from the detention requirements of Section 1022;

namely, that in addition to being covered persons, they must also be

someone who is captured in the course of hostilities.124 In fact, thisadditional element under Section 1022 may not apply to many terror

suspects picked up in the U.K. or Europe. Consider for instance, Khalid

al-Fawwaz, who British law enforcement officials arrested in London at

the request of the U.S. government, is not an American citizen, has never

been to the United States, Iraq, or Afghanistan, but is a member of al-

Qaeda and has directly supported hostilities from London against the

United States.125

While the Senate was debating the NDAA in the fall of 2011,

Senator Diane Feinstein questioned the intent of mandatory militarycustody, stating, it is unwise because our allies will not extradite terror

suspects to the United States for interrogation and prosecution or even

provide evidence about suspected terrorists if they will be sent to a

military brig or Guantanamo.126

Senator Carl Levin, as the chairman of the Armed Services

Committee, responded, [t]he provision expressly states that the waiver

authority may be used to address these concerns and assure an ally that a

suspect will not be held in military custody if transferred to the United

States.127

On January 10, 2012, almost two weeks after passage of the

NDAA, Senator Levin posted statements that the NDAA provisions inquestion do not prohibit civilian trials of terror suspects, but in fact

specifically authorize[] the use of civilian courts.128

He further stated

that both options, trial in civilian court and trial by military commission,

would still be available, and that the President retained discretion to

choose the best approach given the circumstances of each individual

case.129

For example, in the event of extradition from the U.K., the

United States would expect that the U.K. would insist on assurances of

trial in federal court and not by military tribunal. Thus, Section 1022

124. H.R. Res. 1540 (enacted) 1022(a)(1).

125. See Governor of Brixton Prison, [2001] UKHL 69, at 565-67; see also ONeill,

supra note 4.

126. Senate Floor Speech, supra note 63.

127. Id.

128. Carl Levin, The Detainee Provisions in the National Defense Authorization Act

for FY 2012 (Jan. 10, 2012), available at

http://levin.senate.gov/newsroom/press/release/the-detainee-provisions-in-the-national-

defense-authorization-act-for-fy-2012.

129. Id. (The executive branch[s] ability to try detainees in civilian court isprotected.).


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makes it clear that nothing in the law precludes the Executive Branch

from invoking the waiver and providing such assurances.130

C. Assurances that Include a Guarantee of a Right to Fair Trial Are Key

to Achieving Extradition

On the surface, the new statutory language in the NDAA does not

pose any problems to the United States continuing to provide assurances

to her European allies that terror suspects will receive humane treatment

and a fair trial. But it remains imperative that the current and future

administrations understand that affording anything less than a fair trial to

these terror suspects in the federal justice system will likely result interrorists evading justice altogether. The U.S. government should not

underestimate its allies doubt regarding the fairness of the military

tribunal system, substantiated or not, when evaluating whether to provide

and uphold assurances that terror suspects will go to trial in regularly

constituted courts to ensure their extradition. It is clear that the European

approach to human rights, even as it affects extradition, includes the right

to a fair trial that does not include trial by military tribunal.131

As history demonstrates, [t]he right to a fair trial is one of the most

litigated of all human rights. It is also perhaps one of the most important

because without it a violation of a human right is unlikely to be remediedin domestic procedures.

132Moreover, many international cases have

highlighted [t]he importance of independence and impartiality as a key

feature of a fair trial.133

For instance, the European Court in Weeks v.

United Kingdom noted that the most important, fundamental feature of

court is the independence of the executive and of the partiesinvolved.134 As one scholar noted in Lamy v. Belgium, the European

Court of Human Rights noted that a fair hearing is not possible when

detainees are denied access to those documents in the investigation file

which are essential to effectively challenge the lawfulness of [ones]

130. Carl Levin, Summary of Detainee Provisions in Public Law 112-81, the National

Defense Authorization Act for Fiscal Year 2012, As Enacted(Jan. 10, 2012) (citing H.R.

1540, 112th Cong. (2011) (enacted)), available at

http://levin.senate.gov/newsroom/press/release/summary-of-detainee-provisions-in-

public-law-112-81-the-national-defense-authorization-act-for-fiscal-year-2012-as-

enacted.

131. See European Convention on Human Rights art. 6, Dec. 10, 1948, 213 U.N.T.S.

221.

132. DOEBBLER, supra note 65, at 110.

133. Carson, supra note 49, at 398-99.134. Id. at 399 (citing Weeks v. United Kingdom, 10 Eur. Ct. H.R. 293, 315-16 61

(1987)).


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detention.135 And more recently, the U.K. House of Lords stated inA. v.

Secretary of State for the Home Department that neither the common

law . . . nor international human rights law allows indefinite detention atthe behest of the executive, however well-intentioned.136

Thus, the hotly contested and highly publicized deficiencies within

the military commission process certainly create, at the minimum, the

appearance that a fair trial by an independent and impartial tribunal will

be incredibly difficult to obtain for any terror suspect extradited to the

United States without the assurance of trial by a civilian court.

Additionally, the promise of indefinite detention until the end of

hostilities will likely bolster claims of Article 3 violations and add to the

likelihood of Article 6 claims. Either one can work to the disadvantage ofthe United States as it seeks to bring to justice those terror suspects who

await extradition from the U.K. and Europe.

Thus, the current administration should set a strict plan to execute

the waiver in all cases regarding extradition from Americas European

allies. Doing so will make the waiver the norm rather than the exception.

Regular use of the waiver will override the presumption in favor of

military trials that Section 1022137

creates and take the political aspect

out of any future executive decision to provide a waiver.

IV.CONCLUSION

The right to a fair trial is one of the most expansive and complicated

of all the human rights protected under international law.138

And eventhough individual countries bear the burden to defend their citizenry

against terrorism, in cases where action is being taken against terrorism,states must ensure that international human rights norms are respected.

The foremost role of international human rights in cases involving

terrorists is the protection of the accused terrorists human rights.139

With this in mind, the United States should interpret the NDAA to

provide assurances to the U.K. and her European allies that all extradited

terror suspects will defend their case in regularly constituted courts and

will be detained in civilian criminal facilities without threat of the death

penalty. In doing so, the United States will signify support for the rule of

135. Id. at 403 (quoting Lamy v. Belgium, 11 Eur. Ct. H.R. 529, 538-39 29 (1989)

(internal quotation marks omitted).

136. Id. at 409 (quoting A. v. Secy of State for the Home Dept, [2005] URHL 71

[2004] 2 AC 68, 170 para. 222 (U.K.H.L. 2005).

137. See H.R. 1540 1022 (enacted).138. DOEBBLER, supra note 65, at 107.

139. Id. at 86.


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law as it seeks to defeat terrorism. Moreover, and perhaps equally

important, this continuation of assurances will demonstrate that the

United States stands with her allies in the protracted struggle againstterrorism.

STACY K.HAYES