Criticism of U.S.-Cuba Law Enforcement Agreement 

The head of New Jersey’s state police has criticized the two countries’ law enforcement agreement of January 16, 2017, because, he says, he has read the agreement and it does not require Cuba to extradite Joanne Chesimard (a/k/a Assata Shakur) to the U.S.[1]

After reviewing what we know about this woman, we will examine the police statement and provide commentary.

Chesimard/ Shakur

In the 1960s-1970s Chesimard, a U.S. citizen, was a member of the Black Panther Party and the Black Liberation Army in the U.S. In 1977 she was convicted in New Jersey state court for aiding and abetting first-degree murder, assault and battery of a police officer (New Jersey State Trooper Werner Foerster), assault with a dangerous weapon, assault with intent to kill, illegal possession of a weapon, and armed robbery during a gunfight on the New Jersey Turnpike in 1973.

She was sentenced to life in New Jersey state prison, but in 1979 she escaped and in 1984 traveled to Cuba. At some time thereafter President Fidel Castro granted her asylum, and she has been living there under the name Assata Shakur. She is now around 70 years old. The FBI has listed her as one of its “Most Wanted” and offered a reward of $1 million for her apprehension; the New Jersey Attorney General has offered to match that reward.

Since at least 1997 there have been various unsuccessful attempts by the U.S. government and others to obtain her extradition to the U.S.

Statement by New Jersey State Police Superintendent

The Superintendent Rick Fuentes’ January 18 statement reads as follows:

• “On Monday, January 16, 2017, the White House signed a law enforcement pact with the government of Cuba that included the sharing of national security information on matters related to fighting terrorism and the scourge of the international narcotics trade. I have read this pact with great interest, as any aspect of the continued negotiations to normalize relations with Cuba impacts our continued advocacy to seek the return of Joanne Chesimard. Chesimard executed New Jersey State Trooper Werner Foerster in 1973 and fled to Cuba after escaping a New Jersey prison in 1979. She is most prominent among a rogue’s gallery of cop killers and domestic terrorists that have been given sanctuary by the Castro regime these past thirty years.”
• With a continued sense of bewilderment and confusion not uncommon to the course of these negotiations, the pact does not address the return of: Joanne Chesimard; Victor Manuel Gerena, a member of Los Macheteros who was removed from the FBI Top Ten list one month ago; Charlie Hill, a member of the Republic of New Afrika, alleged to have killed a New Mexico state trooper in 1971; or, William Guillermo Morales, the murderous bomb-maker for the Puerto Rican separatist group, FALN.”
• “Their omission from this agreement and from the negotiations-at-large is so glaring as to signal a clear intent by the Obama Administration to ignore these fugitives. By burning the last bridge to this Administration’s opportunity to gain their negotiated return, families who have long suffered the consequences of their terrorist acts and law enforcement everywhere in this country have been shown the back of the hand. An ignominious torch has been passed to the next president.”
• “We are not deterred. I can say, unequivocally, that Governor Chris Christie, State Attorney General Chris Porrino and I remain resolute in our efforts to follow every political course leading to the return of Joanne Chesimard and the other remaining terrorist fugitives. We approach the next presidential administration with a renewed sense of optimism and moral superiority that justice will prevail.”

Comments

The Superintendent’s statements regarding Chesimard/Shakur are believed to be basically correct, and it is most understandable that the New Jersey State Police want her extradited to the U.S. and returned to New Jersey state prison.

The Superintendent says he has read the recent MOU in question and that it does not require Cuba to make that extradition. I have not been able to locate that MOU so cannot independently verify the validity of his statement. But for present purposes I will assume that his statement about the MOU is basically correct.

I assume, on the other hand, that the MOU does not contain a U.S. agreement to not continue to seek her extradition or a Cuban statement or promise not to extradite her. If it had, I am confident that the Superintendent would have so stated and raised the ante for his protest.

He also asserts that the subject of this requested extradition has not been raised by the U.S. in “the negotiations-at-large.” Although I have not been personally involved in those negotiations, I believe this to be a false statement. As noted in earlier posts, public reports indicate that the two countries’ respective requests for extraditions of criminals or suspects, which I believe includes the U.S. request regarding Chesimard/Shakur, have been the subjects of several such bilateral negotiating sessions since December 17, 2014.

As a result, I conclude that the parties have not been able to come to an agreement about such extraditions or about a judicial procedure for resolving any such disputes. Therefore, there apparently was no mention of the subject in the MOU in question.

Moreover, the Superintendent also fails to recognize a major legal issue regarding the requested Chesimard/Shakur extradition because of an extradition treaty between the two countries. Therefore, we will look at that treaty and the issue it raises regarding this possible extradition.

U.S.-Cuba Extradition Treaty.

As explained in an earlier post,[2] on March 2, 1905, the two countries entered into such a treaty, the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice.” Under this treaty, as amended, each country shall grant extradition of persons covered by Article I for crimes covered by Article II, as amended and expanded by Articles I and II of the Additional Extradition Treaty between the parties, which entered into force on June 18, 1926.

The persons covered by Article I are “persons who, having been charged as principals, accomplices or accessories with or convicted of any crimes or offenses specified in the following article, and committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been there committed.” This obviously covers Chesimard/Shakur, who does not fall within the exception under Article V of the treaty, “Neither of the contracting parties shall be bound to deliver up its own citizens under the stipulations of this Treaty,” unless she has been granted Cuban citizenship.

The long list of crimes covered by Article II, as amended, includes (1) “Murder, comprehending the offenses expressed in the Penal Code of Cuba as assassination, parricide, infanticide and poisoning; manslaughter, when voluntary; the attempt to commit any of these crimes.” This obviously covers the requested extradition discussed here.

Under Article VI of the original treaty, however, the requested country (Here, Cuba) is not obligated to extradite someone when the offense is of “a political character.” The exact language of this provision states, “A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if it is proved that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character.” (Emphasis added.)

The only limitation on this exception is in Article VI itself, which states, “An attempt against the life of the head of a foreign government or against that of any member of his family when such attempt comprises the act either of murder, assassination, or poisoning, shall not be considered a political offense or an act connected with such an offense.” This exception, however, is not applicable to the case under consideration here.

Moreover, Article VI states, “If any question shall arise as to whether a case comes within the provisions of this article [VI], the decision of the authorities of the government on which the demand for surrender is made, or which may have granted the extradition shall be final. (emphasis added.) This exception seems to cover Chesimard/Shakur as discussed next.

The Treaty Issue Regarding Chesimard/Shakur

After fleeing to Cuba in 1984, at date unknown the Cuban government apparently granted her political asylum and perhaps Cuban citizenship. Assuming that to be the case, that appears to negate Cuba’s obligation under the treaty to extradite her to the U.S.

It is not known whether the Cuban government has the legal authority to revoke that grant of asylum (and of citizenship?) and whether it would do so in this case. However, after a bilateral negotiation session in Washington, D.C. in February 2015 Josefina Vidal, Cuba’s lead diplomat for these negotiations, said the issue of extraditing people between Cuba and the U.S. had been discussed many times in the past and that the two countries had signed a treaty on the topic in 1906 which has a clause such that it would not apply in cases involving political activities. “Therefore, Cuba has legitimately given political asylum to a small group of U.S. citizens, because we have reason to believe that they deserve this and that is how far we’ve gone. And when one grants political asylum, then you cannot get into these types of discussions.” She added that after the Cuban Revolution of 1959 the U.S. had not honored the treaty when Cuba asked the U.S. to extradite “members of the Cuban dictatorship who were responsible for terrible crimes.”[3]

In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation, the subject of the January 16, 2017, MOU. Outsiders speculated that the meeting may have included discussions about a possible high-profile prisoner swap: U.S.-jailed Cuban spy Ana Belén Montes in exchange for Chesimard/Shakur). The State Department, however, has refused to confirm that such an exchange was being discussed. Instead the Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the State Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.” [4]

Therefore, unless there is some error in my analysis, the strong desire by many in New Jersey and elsewhere in the U.S. for this extradition appears to be a lost cause unless the Cuban government has the authority under its own laws to revoke the grant of asylum (and citizenship?) and chooses to exercise it. Or the Cuban government just decides to extradite her without changing her asylee or citizenship status.

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[1] Assoc. Press, With No Deal on Convicted Killer, Police Slam US-Cuba Pact, N.Y. Times (Jan. 20, 2017),‘Goodbye, Obama! NJ State Police slams president on the way out (Jan. 18?, 2017); New Jersey State Police, Colonel Rick Fuentes’ Response to the Recently Signed U.S./Cuban Law Enforcement Pact (Jan. 18?, 2017).

[2] Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015). Moreover, the “political offense” provision of the U.S.-Cuba treaty is not sui generis, but in fact is a common provision in other U.S. extradition treaties. (Ibid.; Extradition Has Become a Hot Topic for the United States, dwkcommentaries.com (July 25, 2016).

[3] U.S. and Cuba Hold Productive Second Round of Negotiations, dwkcommentaries.com (Mar. 6, 2015).

[4] U.S. and Cuba Discuss Counterterrorism Cooperation, dwkcommentaries.com (June 10, 2016).