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March 11, 2006

Proposed Senatorial Testimony Against US/UK Extradition Treaty


Law Professor Francis A. Boyle (click pic for resume)

Enclosed is Dr Francis A. Boyle’s proposed testimony before the Senate
Foreign Relations Committee against the US/UK Extradition Treaty.

It is published here with permission of the author. He further grants
permission for others to circulation and use it to organize opposition
to holding the next round of treaty hearings. You are free to circulate
it, print it, publish it etc as you see fit.

*************************

Testimony In Opposition To The Ratification Of The
Proposed Extradition Treaty Between The United States
And The United Kingdom (31 March 2003)

by

Professor Francis A. Boyle

Before the Committee on Foreign Relations of the
United States Senate - 2006

Good day. My name is Francis A. Boyle, Professor of Law at
the University of Illinois College of Law in Champaign. I
have already submitted to the Members of this Committee a
detailed Memorandum of Law against the ratification of this
proposed Extradition Treaty dated 4 March 2004 that I
respectfully request be entered into the formal record of
these proceedings together with my written comments here
today.

The United States of America was founded by means of a
Declaration of Independence and a Revolutionary War fought
against the British Monarchy. But under the terms of this
proposed Extradition Treaty, our Founding Fathers and
Mothers such as John Hancock, George Washington, Thomas
Jefferson, James and Dolly Madison would be extradited to
the British Monarchy for prosecution, persecution, and
execution for the very revolutionary activities that
founded the United States of America itself.
Because of this American legacy of revolution against
British Tyranny, the U.S. has always provided a safe haven
for those seeking refuge on our shores. We have always been
wary of efforts by foreign powers to transport Americans
and foreigners for prosecution abroad on political charges.
Indeed, in the Declaration of Independence, one of the
specific complaints against British Tyranny made by Thomas
Jefferson himself was directed at the British outrage of
"transporting us beyond seas to be tried for pretended
offences." Such is the case for this Treaty! For that
reason, several episodes in the early history of our
Republic, such as that of Citizen Genet under Thomas
Jefferson, laid the foundation for the uniquely American
notion of the "political offense exception" to extradition.
In essence, the political offense exception holds that
people in the United States will not be handed over to
foreign governments for criminal prosecution when the crime
alleged is political in nature.

The political offense exception has since become a standard
part of public international law. But the political offense
exception is not some abstract notion created by the World
Court, or the United Nations, or any other international
body. It began right here in the United States of America -
". . . the land of the free, and the home of the brave."
And it was created by our Founding Fathers and Mothers who
knew, from personal experience, that it was outrageously
unfair for a state to hand a person over to another state
for political prosecution and persecution. It is a bedrock
principle of American Justice.

This basic principle of American Justice is now under
assault by means of this Treaty which surely has George
Washington, Thomas Jefferson as well as James and Dolly
Madison turning over in their graves. This new Treaty marks
an unprecedented departure from two centuries of American
extradition practice. Although the new Treaty pays lip-
service to the political offense exception, it effectively
eliminates the political offense exception for all
practical purposes.

For example, the political offense exception is eliminated
for any offense allegedly involving violence or weapons,
including any solicitation, conspiracy, or attempt to
commit such crimes. As we have repeatedly seen in Chicago,
Florida, and New York, inter alia, undercover government
agents infiltrate peaceful Irish American groups, suggest
criminal activity to them, and then falsely claim that
innocent members of these groups agreed with their
suggestions. That is all it takes for a conspiracy to be
extraditable under this proposed Treaty.

Even worse yet, all it would take for any of the people in
this room to get extradited under this proposed Treaty is a
false allegation from the British Monarchy that one of its
spies overheard them say something reckless about weapons
or the armed struggle in Ireland. This Treaty is
unconstitutional under the First Amendment to the United
States Constitution, which Britain does not have. Indeed,
we Americans fought a bitter Revolutionary War against the
British Monarchy in order to establish our own Constitution
and Bill of Rights, neither of which Britain has.
Under the terms of this proposed Treaty, it would be the
politicians and diplomats at the U.S. Department of State,
not a United States Federal Judge, who would be
adjudicating the First Amendment Rights of Irish American
Citizens, Voters, and Taxpayers. My 4 March 2004 Memorandum
to you has already identified several other constitutional
protections set forth in our American Bill of Rights that
will be violated by this proposed Extradition Treaty with
the British Monarchy that I will not review now but
respectfully incorporate by reference.

In addition, this proposed Treaty wipes out a number of
constitutional and procedural safeguards. It eliminates any
statue of limitations, unconstitutionally eliminates the
need for any showing of probable cause, permits
unconstitutional indefinite preventive detention, applies
retroactively to offenses allegedly committed before the
Treaty's ratification, eliminates the time-honored Rule of
Specialty in all but name, allows for the unconstitutional
seizure of assets, and permits extradition under Article
2(4) for conduct that is perfectly lawful in the United
States. This Treaty retroactively criminalizes perfectly
lawful conduct in violation of the constitutional
prohibition on Ex Post Facto laws set forth in Article I,
Section 9 of the U.S. Constitution as well as the basic
principles of public international law and human rights and
jus cogens known as nullum crimen sine lege, nulla poena
sine lege - no crime without law, no punishment without
law. Under this Treaty, the heirs of George Washington
could have their assets seized as proceeds of a criminal
terrorist conspiracy.

Most outrageously, responsibility for determining whether a
prosecution is politically motivated is transferred from
the U.S. Federal Courts to the executive branch of
government. This means that instead of having your day in
court, before a neutral Federal Judge, you will be required
to rely on the not-so-tender mercies of the Department of
State, which historically has always been soundly
Anglophile, pro-British, anti-Irish, and against Irish
Americans and Irish America. There are now over twenty
million Irish American Citizens, Voters, and Taxpayers, and
we all especially like to vote. These and the several other
court-stripping provisions of this proposed Treaty are
unconstitutional under Article III of the United States
Constitution.

As the current U.S. Irish deportation cases show, Britain
can easily return Irish and British citizens to Britain. So
why is the British Monarchy now trying now to shift the
extradition decision from the U.S. Federal Courts to the
executive branch? Because you cannot deport a U.S. citizen.
A U.S. citizen has to be extradited. Article 3 of the
proposed Treaty makes it crystal clear that the British
Monarchy wants to target Irish American Citizens for
persecution in Crown courts, which have a long history of
perpetrating legal atrocities against innocent Irish
People. That is precisely why the U.S. Senate deliberately
put the so-called Rule of Inquiry by a U.S. Federal Judge
into Article 3 of the 1986 Supplementary Extradition Treaty
with Britain. This proposed Treaty eliminates the Senate's
well-grounded Rule of Inquiry to prevent British Crown
courts mistreating Irish People.

Furthermore, unlike Article VIIIbis of the proposed
Extradition Protocol with Israel, for some mysterious and
unexplained reason Article 6 of the proposed Extradition
Treaty with the British Monarchy eliminates any statute of
limitations requirements. So citizens of Israel get to
benefit from a statute of limitations, but Irish American
Citizens of the United States do not. Why this differential
treatment on behalf of foreigners and against Irish
American Citizens in these two simultaneously proposed
Extradition Treaties?

The answer to this question becomes quite clear in Article
2(2) and Article 4(2)(g) of the proposed Extradition Treaty
with the British Monarchy, which renders extraditable an
accessory after the fact to an extraditable offense. Since
there are no statute of limitations requirements and the
proposed Treaty is retroactive, any Irish American Citizen
who provided assistance to Joe Doherty would today be
extraditable under this proposed Treaty as an accessory
after the fact to Mr. Doherty. In addition, such Irish
American Doherty supporters would be provisionally arrested
and indefinitely detained under Article 12 of the proposed
Treaty. Finally, according to Article 16 of the proposed
Treaty, such Irish American Doherty supporters would have
their homes, businesses, cars, and other property seized,
sold and surrendered to the British Monarchy.

That is the real agenda behind this proposed Extradition
Treaty with the British Monarchy: British retaliation
against Irish American Citizens, Voters and Taxpayers
because of our near universal support for Joe Doherty and
other I.R.A. soldiers who fled to the United States of
America seeking refuge from fighting their own revolution
against British Tyranny in Ireland since the Proclamation
of the Irish Republic on Easter Sunday 1916. This proposed
Treaty has been designed by the British government to
eviscerate, overturn, and reverse the delicately crafted
human rights compromises that were deliberately built into
the 1986 Supplementary Extradition Treaty by the Senate
Foreign Relations Committee and other concerned Members of
the United States Senate. Will the United States Senate and
this Committee permit the British Monarchy to traduce its
previous handiwork? I certainly trust not.

Next, for reasons fully explained in my 4 March 2004
Memorandum to you, if the Senate were to consent to this
proposed Extradition Treaty, that would effectively
abrogate the most basic human rights of Irish American
Citizens under the International Covenant on Civil and
Political Rights to which the United States is a
contracting party. Furthermore, such Senate consent to this
proposed Treaty would also place the United States of
America in breach of its solemn treaty obligations under
numerous provisions of that human rights Covenant with
respect to all the other contracting states parties. Such
violations will render the United States subject to the
treaty enforcement mechanisms of that Covenant as well as
to the other ordinary enforcement mechanisms, remedies, and
sanctions for violating a solemnly concluded international
human rights treaty as well as the basic principle of
customary international law and jus cogens that pacta sunt
servanda: i.e., treaties must be obeyed.

My 4 March 2004 Memorandum to you established that the
proposed Extradition Treaty will grossly violate this
solemn International Human Rights Covenant that has
received the advice and consent of 2/3rds of the Members of
the United States Senate and is thus "the supreme Law of
the Land" under Article VI of the United States
Constitution. Nevertheless, the two lawyers from the
Departments of State and Justice who appeared before this
Committee on 15 November 2005 did not even bother to
address these weighty issues of international law, U.S.
constitutional law, U.S. treaty law, and basic human rights
protections. With all due respect, this Committee must
uphold the Senate's constitutional responsibilities and
prerogatives under the Treaties Clause in Article II,
Section 2 of the U.S. Constitution by demanding that both
the Departments of State and Justice formally respond in
writing to my 4 March 2004 Memorandum's arguments that this
proposed Extradition Treaty will violate the International
Covenant on Civil and Political Rights, to which both the
United States and the United Kingdom are contracting
parties.

Finally, the British Monarchy has continued to maintain a
colonial military occupation regime consisting in part of
about 15,000 soldiers in the six northeast counties of
Ireland in gross violation of the right of the Irish People
to self-determination under both customary and conventional
international law, including but not limited to Article
I(1) of the International Covenant on Civil and Political
Rights to which the Republic of Ireland, the United States,
and the British Monarchy are all contracting parties. This
longstanding instance of British criminality has been
analyzed in great detail by my article The Decolonization
of Northern Ireland, 4 Asian Yearbook of International Law
25-46 (1995), a copy of which is attached. I respectfully
request that this article be submitted into the formal
record of these proceedings.

All of the above incontestable historical facts provide
proof-positive of precisely why this proposed Treaty of
Extradition with the British Monarchy must be treated
completely differently from any other extradition treaty
that the United States of America might have or propose to
have with any other country in the world. All of these
other so-called modern extradition treaties are
historically, politically, and legally inapposite to this
proposed Extradition Treaty with the British Monarchy,
which obstinately continues illegally to occupy Ireland
militarily and to maintain a colony there in blatant
violation of the United Nations' seminal Decolonization
Resolution of 1960. Furthermore, this Extradition Treaty
with the British Monarchy must stand alone and apart from
all other modern U.S. extradition treaties precisely
because we Americans fought a bitter Revolutionary War
against the British Monarchy to found this Republic. We
Americans did not fight a Revolutionary War against any
other state in the world. So it is axiomatic that this
proposed Treaty with the British Monarchy must be quite
carefully distinguished from all of our extradition
treaties with every other country in the world -- and
rejected!

Conclusion

For all these reasons the Senate Foreign Relations
Committee must reject this Treaty outright. There is no way
this unconstitutional and illegal treaty can be salvaged by
attaching any package of amendments, reservations,
declarations, or understandings. The currently existing
bilateral and multilateral extradition treaty regime
between the United States and the British Monarchy is more
than sufficient to secure the extradition of alleged
terrorists. This proposed Treaty will only secure and
guarantee the persecution of Irish American Citizens,
Voters, and Taxpayers by the British Monarchy.

Thank you.

Respectfully submitted by,

Francis A. Boyle
Professor of law
Board of Directors,
Amnesty International USA (1988-92)
4 March 2004 Memorandum
4 Asian Y.B. Int'l l. 25-46 (1995)

Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle@law.uiuc.edu
(personal comments only)


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