On June 8, 2020, the Spanish National Court in Madrid will commence a trial over the November 16, 1989, murders in El Salvador of six Jesuit priests, their housekeeper and her daughter. The sole defendant will be Inocente Orlando Montano, who at the time was a Colonel and the Vice-Minister of Public Security in that country and who on November 19, 2017, was extradited from the U.S., where he had been living, to Spain to stand trial.
On May 20, 2011, the Spanish court had issued the equivalent of an indictment of 20 Salvadoran military officers, including Montano, for this horrible crime and thereafter requested El Salvador to extradite 15 of them still living in that country to Spain to stand trial, but the Salvadoran courts refused to do so. (As of November 2017, one of the four others had died, two were cooperating with the prosecution and one had been tried, convicted and imprisoned for this crime in El Salvador.) 
The law, including universal jurisdiction, facts and circumstances leading up to this trial have been discussed in many previous posts. 
The prosecution will be lead by attorneys from The Guernica Centre for International Justice and Spanish co-counsel Oilé & Sesé Abogadas. According to the Centre,
“The trial for the murder of the Jesuits and the two women they employed is extremely significant. This trial has the potential to reopen the discussion in Spain about the necessity and importance of an effective universal jurisdiction law. It also supports the ongoing realization that countries like Spain need to ensure that victims of human rights violations can find redress when legal avenues have been foreclosed in other jurisdictions due to restrictive legislation, corrupt judiciaries, impunity, or political opposition. This trial also comes at a time when Salvadoran civil society is struggling to push forward investigations and prosecutions in El Salvador following the Supreme Court’s repeal of the Amnesty Law in 2016, while simultaneously political sectors in El Salvador threaten to enact legislation that once again could shield those most responsible from prosecution and criminal sanctions.”
On December 13 U.S. Representative Peter King (Rep., NY) and eight cosponsors filed a proposed House resolution calling for the extradition of U.S. citizens in Cuba who are fugitives from the U.S. That proposal will be summarized and analyzed below.
The preamble of the proposed resolution, which was referred to the House Committee on Foreign Affairs, recited that “more than 70 fugitives from the United States, charged with offenses ranging from hijacking to kidnapping to drug offenses to murder, are believed to be receiving safe harbor in Cuba,” including William Morales and Joanne Chesimard. It also mentioned that the U.S. and Cuba have a bilateral extradition treaty from 1905 and 1926 and that “it is imperative that Cuba abide by its extradition treaty with the United States and immediately extradite or render to the United States those legally indicted or convicted of serious criminal offenses in the United States.”
Therefore, the proposed resolution called for the following:
“the immediate extradition or rendering to the United States of convicted felon William Morales and all other fugitives from justice who are receiving safe harbor in Cuba in order to escape prosecution or confinement for criminal offenses committed in the United States;”
the U.S. urging “the international community to continue to press for the immediate extradition or rendering of all fugitives from justice that are receiving safe harbor in Cuba;” and
“the Secretary of State and the Attorney General to continue to press for the immediate extradition or rendering of all fugitives from United States justice so that they may be tried and, if convicted, serve out their sentences.”
Analysis of the Proposed Resolution
The resolution may make for good publicity for these representatives, but it is a waste of time because the terms of the U.S.-Cuba extradition treaty bar such extraditions, because the U.S. repeatedly has called for Cuba to make these extraditions and because Cuba repeatedly has denied such requests under the very terms of the extradition treaties recited in this resolution.
First, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.
In the U.S., international extradition is treaty-based, meaning that the U.S. must have an extradition treaty with the requested country in order for the latter to consider the request for extradition. U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties. While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.
For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.
In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:
An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
A similarly widely adopted exception is where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals. The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.
Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties, however, this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.
The issues posed by the new proposed House resolution are governed by the “Treaty between the United States and Cuba for the mutual extradition of fugitives from justice,” which entered into force on March 2, 1905. 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 (44 Stat. 2392; TS 737).
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.” However, 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.”
The long list of crimes covered by Article II, as amended, includes the following: (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.” (2) “Arson.” and (3) “Robbery, defined to be the act of feloniously and forcibly taking from the person of another money, goods, documents, or other property, by violence or putting him in fear; burglary; housebreaking and shopbreaking.”
Under Article VI of the original treaty, however, the requested country 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.” (Emphasis added.)
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.) 
To have a better understanding of this treaty, it would be useful to see all documents regarding (a) the negotiation of the treaty in 1904-1905 and its amendment in 1926; and (c) previous U.S. and Cuban requests for extradition.
U.S. Fugitives In Cuba
According to U.S. Department of State annual reports purportedly justifying the previous designations of Cuba as a “State Sponsor of Terrorism,” there have been or still are over 70 individuals living in Cuba who are fugitives from criminal charges in U.S. relating to violent acts in the 1970’s purportedly committed to advance political causes. Pursuant to a 2005 Cuban government statement, however, these U.S. reports also say no additional U.S. fugitives have been permitted on the island and in a few instances Cuba has extradited such fugitives to the U.S.
However, a U.S. newspaper recently asserted, “The U.S. has no idea how many fugitives Cuba’s harboring,” And on January 23, 2015, U.S. Senator Marco Rubio (Rep., FL) and two other Republican Senators (David Vitter (LA) and Ted Cruz (TX)) asked the F.B.I. to submit a complete list of such fugitives with copies of their U.S. indictments, but a FBI response to this request has not been located.
In any event, one of the most notable U.S. fugitives still on the island is JoAnne Chesimard (a/k/a Assata Shakur), a political radical and former member of the Black Panther Party and the militant Black Liberation Army, who in 1979 broke out of a New Jersey state prison where she was serving a life sentence for assault, armed robbery and aiding and abetting the murder of a New Jersey state trooper. After hiding in the New York area, she fled to Cuba in 1984, where she was granted political asylum that same year and has lived ever since. According to her U.S. attorney, she “has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI.” In May 2013 the FBI added her name to its “Most Wanted” list.
Cuba, however, before the December 2014 rapprochement had rejected U.S. requests for her extradition on the ground that Cuba had determined she was being sought on “political” grounds and, therefore, had decided to grant her asylum. In addition, there are also some indications that Chesimard/Shakur has been granted Cuban citizenship, which would provide Cuba with another reason under the treaty to deny a U.S. request for her extradition. It would be useful to know the details of all prior U.S. requests for her extradition.
After the announcement of rapprochement, the two countries have discussed various extradition issues, including at least some of the U.S. nationals in Cuba who are mentioned in the new proposed resolution in the House of Representatives, including Chesimard/Shakur.
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.”
In June 2016, the two countries held another negotiating session in Havana focused on counterterrorism cooperation Afterwards the State Department merely stated that the U.S. “continues to seek the return by Cuba of fugitives from US justice” and that the Department “brings out the cases of fugitives to the Cuban Government to be settled and will continue to do so at every appropriate opportunity.”
As a result, the new proposed Resolution does not deserve to be adopted, and if adopted, it will not have any practical effect.
On November 29 Inocente Orlando Montano Morales, a former Salvadoran military officer, was extradited from the U.S. to Spain to face trial in the 1989 murders of five Jesuit priests in El Salvador.
On November 30 Montano appeared before Judge Manuel Garcia Castellón of Spain’s National Court, who sent the Salvadoran to prison for pre-trial detention because the Spanish probe showed Montano had taken an “active part in the decision and design of the assassinations” and because there was a risk he would flee the jurisdiction. (Montano arrived at the court by ambulance and entered the court in a wheelchair.) 
Montano is to return to the court next week for testimony in the case.
One of the suspects who is sought by a Spanish court to face criminal charges in the 1989 murders of six Jesuit priests in El Salvador is Inocente Orlando Montano Morales. As he had been living in the U.S., he is now the subject of proceedings in U.S. federal court for extradition to Spain.
A post last month reported the delay in those U.S. proceedings because of his poor health. That has not changed in the last six weeks.
With respect to his health, he was not transferred to the Federal Medical Center at Butner, North Carolina but instead to the Piedmont Regional Jail, which reportedly had adequate facilities for his care. After Montano challenged that care and after the filing of statement of a Nurse-Practitioner and the Head Nurse at the Regional Jail, the court in May affirmed its prior denial of Montano’s motion for conditional release.
In early June, however, Montano’s health worsened, and the Government was in the process of having him transferred to the Columbia Regional Care Center in Columbia, South Carolina, which will be able to provide “a higher level of medical and nursing care.”
In the meantime, both parties filed briefs on the merits.
Montano’s attorney argued that Spain’s attempted exercise of extraterritorial jurisdiction over Montano would be arbitrary, fundamentally unfair and unreasonable. First, the underlying Spanish criminal statute requires an act by a “terrorist,” but “it is unlikely that a cabinet member of a government recognized by the [U.S.] and Spain [as El Salvador’s was] would ‘reasonably anticipate being . . . charged with being a terrorist.” Second, extradition of Montano would violate due process because he has had “absolutely no contacts with Spain” and because the five murdered priests in this case left Spain in the 1950’s and at least three of them had acquired Salvadoran nationality and thereby lost their Spanish nationality. Third, Spain’s assertion of extraterritorial jurisdiction over Montano violates international law.
The U.S. Government responded. The U.S. asserted the Magistrate Judge properly had found that extradition would be lawful because under the U.S.-Spain extradition treaty the U.S. could charge someone under a U.S. statute for a similar crime in compliance with due process requirements.
Now we wait to see if Montano’s health stabilizes and if the court will issue a decision on the merits.
 Notice of Petitioner’s Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 23, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 25, 2017); Response to Petitioner’s Notice of Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 25, 2017); Statement by Donna McLean, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C.); Notice of Filing of Ann Smith, R.N.,] Statement in Response to Court’s Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 26, 2017 May 26, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 26, 2017).
 Notice of Petitioner’s Condition and Treatment at Piedmont Regional Jail, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. June 14, 2017); Notice Regarding Petitioner’s Current Medical Condition, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. June 14, 2017),
 Response to Court’s March 27, 2017 Order and Response to Government’s Amended Memorandum in Support of Motion To Dismiss,, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 9, 2017).
 Reply in Support of Amended Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. May 19, 2017).
A post last month discussed the U.S. district court’s delay of proceedings regarding the proposed extradition of Inocente Orlando Montano, a former Salvadoran military officer, to Spain for trial for his alleged participation in the 1989 murders of Jesuit priests in El Salvador. The reason was the court’s desire for additional briefing on some of the issues.
Additional proceedings on the merits have been further delayed due to the poor health of the 75-year old Montano resulting in the court’s April 28 order to have him transferred to the Federal Medical Center at Butner, North Carolina for “acute care.” This was based upon his attorneys’ report that he was suffering from “numerous ailments beyond those associated with a man of his age. His bladder cancer left him dependent on a colostomy bag. He remains susceptible to a re-occurrence of a C-Diff infection which is difficult to diagnose and treat. During the nearly four years of his incarceration – 21 months for the immigration conviction and 2 years during these extradition proceedings – he developed Type II diabetes. He also increasingly suffers from arthritis in his legs and cannot move without a walker.”
In the meantime the U.S. submitted a brief addressing whether the U.S.-Spain extradition treaty’s requirement for “dual criminality” was satisfied and whether U.S. due process requirements would be met by an extradition of Montano.
Dual Criminality Requirement Was Met
The U.S. asserted that this requirement meant that “the acts or conduct underlying the [Spanish] charges would be proscribed by similar criminal provisions under either U.S. federal law, the law of the state where the [extradition] hearing is held, or the law of a preponderance of the states.” (P. 23)
Here, according to the U.S. brief, the Spanish charges were under its terrorist murder statute, and while a U.S. federal statute (18 U.S.C. § 2332), as the Magistrate Judge found, was not identical, “the primary distinction is one of scope, not character.” Indeed, “the basic evil proscribed by both countries’ statutes is murder.” (Pp. 23-24)
Moreover, said the U.S. brief, “the murder of a U.S. citizen abroad under circumstances similar to those” involved in the murder of the Jesuit priests who were Spanish citizens in El Salvador would be a crime under U.S. federal law. (P. 25)
Extradition Here Would Satisfy U.S. Due Process
The U.S. brief also asserted the validity of the Magistrate Judge’s conclusion that “it is well-established that Congress may criminalize extraterritorial conduct” and doing so when a U.S. citizen is murdered abroad is a valid exercise of that power and does not violate due process when anyone would know that murder is proscribed. “Protection of one’s citizens from murder [in another country] implicates a significant national interest, and enforcement of that interest is not arbitrary.” (Pp. 31-34)
Now we wait to see if Montano’s attorney responds to the government’s brief on the merits and whether Montano’s health will permit further proceedings.
 Motion for Conditional Release During Pendency of Habeas Proceedings, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 7, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 28, 2017).
 Amended Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 17, 2017).
Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.
Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.
Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”
Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.
He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”
International Law Issue
Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.
No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.
The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”
Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)
Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:
One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”
Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.
U.S. Legal Issues
Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.
I leave these issues to the subsequent briefs of the parties.
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.
After reviewing what we know about this woman, we will examine the police statement and provide commentary.
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.”
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, 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.”
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.” 
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.
As discussed in a prior post and two comments thereto, the United States and Turkey continue to be involved in discussions regarding Turkey’s request for the U.S. to extradite to Turkey a Muslim cleric, Fethullah Gulen, who now is living in the U.S.
The subject also came up with respect to U.S. Vice President Joe Biden’s August 24 visit to Turkey: first in the White House Press Secretary’s August 22 press briefing; second in Biden’s August 24 joint press conference with Turkey’s Premier Binali Yildirim; third in Biden’s August 24 joint press conference with Turkey’s President Recep Tayyip Erdogan; fourth at the White House Press Secretary’s August 24 press briefing; and fifth at the State Department’s August 24 Daily Press Briefing.
On August 22 White House Press Secretary Josh Ernest addressed Biden’s then upcoming visit to Turkey. He said that Biden will “indicate our continued, ongoing support for our allies in Turkey. It’s a country that obviously is going through a lot. This is a country that was subject to a failed coup attempt earlier this summer. That is a coup attempt that was roundly and publicly condemned by the United States government. And we continue to strongly support the democratic government of our allies in Turkey” and “the steps that Turkey has taken to make contributions to our counter-ISIL effort.”
As it relates to Mr. Gülen, the Press Secretary stated, Biden “will say what President Obama [already] has communicated directly to President Erdogan, which is that there is a treaty, an extradition treaty, that’s been on the books between the United States and Turkey for more than 30 years. And the United States is committed to following the procedure and guidelines that are outlined in that treaty.” This includes “extensive coordination between officials at the Department of Justice and their Turkish counterparts.” But extradition is “not a presidential decision. There is a process that is codified in that treaty and in U.S. law. . . . But . . . [the decision] will be guided by the evidence and . . . by the rules and procedures that are codified in the extradition treaty and in United States law.”
Upon his arrival in Ankara, Biden and Turkey’s Premier Yildirim held a joint press conference. To the right is a photograph of them.
Biden emphasized, “President Obama asked me to come to Turkey today in order to remind the world of the paramount importance that we place on the relationship between our nations as allies, as partners, and as friends. It is as an ally and a long-term friend of the Turkish people, that I’m here today to express in no uncertain terms the continuing, unwavering support of the United States for Turkey in the wake of last month’s attempted coup.”
“So on behalf of President Obama and the people of the United States, I want to once again, Mr. Prime Minister, extend to all the people of Turkey our condolences to the families and loved ones who were injured, but particularly those who lost a loved one. We pay tribute to not only their bravery but their incredible resolve, their incredible commitment to their democracy, to ensuring that their country remains strong, vibrant and resilient, and democratic.”
“The . . . people of the United States of America abhor what happened, and under no circumstances would support anything remotely approaching the cowardly act of the treasonous members of your military who engaged in this behavior. We did not have prior knowledge. We did not support. We immediately condemned. And we continue, as we did before the coup, to stand shoulder to shoulder with not only the government of Turkey, but with the people of Turkey.”
“I understand the intense feeling your government and the people of Turkey have about [Mr. Gulen] . . . . We are cooperating with Turkish authorities. Our legal experts are working right now with their Turkish counterparts on the production of and the evaluation of material and evidence that needs to be supplied to an American court to meet the requirements under our law and the extradition treaty to extradite Gulen. And we’re going to continue to do so as you continue to bring forward additional information. We have . . . no interest whatsoever in protecting anyone who has done harm to an ally. None. But we need to meet the legal standard requirement under our law.”
“[U]nder American law: No President of the United States has authority to extradite anyone on his own power. That only an American court can do that. Were a President to attempt to do that, it would be an impeachable offense. But we have no reason to do anything other than cooperate with you and take every substantiating fact and make it available to the extent it exists to an American court.”
Premier Yildirim in his remarks welcomed the Vice President and recognized that “the relationship between Turkey and the United States has a very long history, a very deep-rooted history. Therefore, from time to time, there might be incidents that tend to damage this relationship. But on both sides, of course, we should never allow this to happen.”
“[T]his heinous coup attempt was, in our opinion, orchestrated and instructed by Fethullah Gulen. And as per the treaties that we have between our two countries, the necessary steps should be taken with a view to his extradition to our country. And we have taken the initial step in that process. And you have had very frank remarks for the Turkish people and also for our government . . . of vital importance for a sound functioning of this process, and we are grateful to you for those remarks.”
“So having a [U.S.] technical team . . . here in Turkey, and talking to our judges and prosecutors here on the ground, is a clear sign from your side that you’re taking this very seriously, that you’re attaching great importance to this. Therefore, I would like to once again thank you for being sensitive about the matter.”
“The process of extraditing the head of the terrorist organization that was behind the attempted coup, if it can be expedited and accelerated, and if we can have more cooperation in the process, I think the grief and grievances of the Turkish people, of the Turkish nation, will be remedied to a certain degree, and their overall sentiments about the issue will go back to being more positive.”
The Premier repeated this last thought in later responding to a journalist’s question: “I am sure that the healthy and sound functioning of the processes with regard to the extradition of the head of the terrorist organization will also, in a short amount of time, return or rectify the people’s perception back to their normal, positive situation.”
At the joint press conference after their private meeting, Biden opened by expressing his “personal condolences and the condolences of my country for the brutal, unconscionable attack in Turkey. . . .The attempted coup went to the heart of who your people are — principled, courageous and committed. And for a people who have struggled so long to establish a true democracy, this was, from my perspective and the President’s perspective, the ultimate affront. So my heart goes out to not just the government, but to the Turkish people.” He added, “the United States stands with our ally, Turkey. We support the people of Turkey. And our support is absolute and it is unwavering.” (Above is a photograph of the two men.)
“That’s why the United States.” Biden said, “is committed to doing everything we can to help [Turkey] through your justice [system] hold all those responsible for this coup attempt while adhering to the rule of law. . . . [O]ur American experts are on the ground, here in Ankara, meeting with your people, closely coordinating with our Turkish counterparts to evaluate and gather the material with regard to Turkish requests to extradite Gulen, in accordance with our bilateral extradition treaty.”
As “powerful as my country is, as powerful as Barack Obama is as President, he has no authority under our Constitution to extradite anyone. Only a federal court can do that. . . . If the President were to take this into his own hands, . . . he would be impeached for violating the separation of powers.”
The U.S. has no “reason to protect Gulen or anyone else who, in fact, may have done something wrong. . . . [T]his case, like all others, is going to have to be assessed by an independent federal court along with evidence backing it up. That’s what we’re working on together now. And it takes time to work an extradition request, but there should be no doubt that we’ll continue to work closely with the Turkish government as this process unfolds.”
In response to a journalist’s question at the end of the press conference, Biden repeated these thoughts about extradition. “We are a nation of laws. We are bound by a constitution. . . . The constitution and our laws require for someone to be extradited, that the court in the United States has to conclude with probable cause to be extradited. Not only do we apply that standard as it relates to extradition; we apply that standard every day we do our country.”
Biden continued, “we have a team of our lawyers and experts who were here in Ankara yesterday, sitting down with your experts on the judiciary and your prosecutors, saying, give us the data we need in order to be able to bring these to a court of law that will say, yes, we must extradite [Mr. Gulen]. . . . What possible interest could the United States have in wanting to protect someone who, in fact, met the standard under our law of being deported?”
Until yesterday, the Vice President added, “[T]here has been no evidence presented about the coup. When you go to an American court, you can’t go into a court and say, this is a bad guy, generally. You have to say this is a guy or a woman who committed the following explicit crime. That’s what we’re working with President [Erdogan] right now to gather the evidence that will establish in a court of law probable cause to believe he may have done this. We are determined — we are determined to listen to every scrap of evidence that Turkey can provide or that we can find out about.”
“We will continue to abide by [our] system. And God willing, there will be enough data and evidence to be able to meet the criteria that you all believe exists. We have no reason to shelter someone who would attack an ally and try to overthrow a democracy.” (Emphasis added.)
President Erdogan thanked the Vice President for coming and saluted him with “all my most heartfelt emotions.”
Erdogan then stressed that the “leader of the FETO terrorist organization [Gulen] needs to be extradited to Turkey as soon as possible. That is the first measure that needs to be taken. There are references made to the verdicts to be issued by courts, and we have previously submitted all of the folders regarding the actions engaged in by these terrorists before July the 15th. And right now, we are amassing certain documents pointing out to their involvement in this failed coup that took place on July the 15th.”
Under the U.S.-Turkey extradition treaty, Erdogan said, “those individuals should be taken into pretrial detention, they should be arrested, and throughout the trial they need to remain in custody. This person [Gulen], however, is currently managing and directing the terrorist organization where he lives. They are present in more than 170 countries around the world, and they are present through school associations and other sorts of educational institutions. . . . [He] is still providing interviews to media outlets in the United States. Some journalists are being taken into the Pennsylvania residence, and he is still continuing his actions around the world, and he’s shaping his actions for the future using these outlets. That’s why it is very important for him to be contained through pretrial detention, which is actually part of the bilateral extradition treaty that was signed between our two countries, which we should not ignore. And that is something I especially feel that I need to remind you of. And I’m confident that the United States will take the necessary measures to cater to our expectations in that regard.”
Biden’s “God willing” comment came up in a question at the Wednesday afternoon, August 24, White House press briefing. Josh Earnest responded that the “point that the Vice President was making is that this is not going to be a decision that is made by the executive branch. The decision about the evidence that Turkey has compiled is one that will follow the guidelines of the extradition treaty, and will ultimately involve a federal judge who will have to render [his or her] . . . own judgment, [his or her] . . . own assessment of the situation consistent with U.S. law and consistent with the terms of the extradition treaty.”
The White House Press Secretary also said that the U.S. has “concerns about the Turkish government’s activity since the coup have been a reflection of our longstanding concerns about protection of human rights inside of Turkey. Turkey is a valuable NATO ally, and we’re able to work effectively with them on a variety of issues in a way that advances the interests of both our countries. But even in the midst of our progress in pursuit of those shared priorities, the President has periodically raised concerns directly with President Erdogan, particularly on issues like freedom of the press inside of Turkey.” Nevertheless, “since the coup, we’ve understood the significant concerns that have been raised in Turkey and the need for a thorough investigation to get to the bottom of what exactly happened.”
With respect to Mr. Gülen, “there is a well-established process, and both the United States and Turkey are engaged in that process. That process is governed by an extradition treaty between the United States and Turkey that’s been on the books for 35 years or so. . . . [T]here is a rather high bar, a high evidentiary standard that’s required. So considering that the coup took place — what was it — six or eight weeks ago, I think it’s understandable that Turkey wouldn’t be able to build such a robust case, if there is one to be presented, against Mr. Gülen in such a short period of time.”
In addition, “Turkey has longstanding concerns with Mr. Gülen’s activity and they have presented significant evidence to the United States, and Department of Justice officials are carefully reviewing that evidence. In fact, Justice officials are in Turkey this week, meeting with their counterparts to discuss and review that evidence. What we have said all along is that the terms of the treaty and the law on the books here will ultimately determine how this is resolved.”
The Department’s spokesman said “our legal experts are working right now with their Turkish counterparts to evaluate the material, the evidence that needs to be supplied to meet the standards for extradition under our treaty. . . . As we’ve said, Turkey has provided materials relating to Mr. Gulen. We continue to analyze those materials. Under our laws, extradition requests must be assessed by an independent federal court along with the evidence backing it up. . . . It always takes time to work through an extradition request. However, there should be no doubt that we will continue to work through this working with our Turkish counterparts.”
Vice President Biden, President Obama and other U.S. officials consistently and rightly have emphasized that Turkey’s requested extradition of Gulen will be handled in accordance with the U.S.-Turkey extradition treaty and U.S. law, which were explained in a prior post and which were illustrated in February 6 and August 22 posts about the ongoing proceedings for extradition of a former Salvadoran military officer to Spain for the criminal case regarding the 1989 murder of the Jesuit priests.
Turkey’s refusal to make a public acknowledgement of this reality cannot be based on ignorance of its extradition treaty or U.S. law. Instead it has to be based in part on Erdogan’s wanting to appear to the Turkish people as a strong leader and fomenting Turkish public pressure for the extradition. Perhaps too it is based upon Erdogan’s apparently increasing belief in his own power to control everything.
In any event, at least one Turkish journal had a very negative reaction to Biden’s remarks in their country. An editorial in Istanbul’s Daily Sabah stated, Biden “came all the way from the U.S. just to mention the importance of rule of law of his own definition.” He “parroted the same stale remarks Turkey has heard since July 15. . . . Unfortunately, Biden came and went without leaving a trace. His sly smile, insincere apology about not having come sooner and feeble remarks of friendship between the people will deservedly fall on deaf ears.”
The Daily Sabah editorial even claimed the U.S. was not abiding by Article 9 of the bilateral extradition by not detaining Gulen. That Article states, “The Contracting Parties shall take all necessary measures after the information and documents related to the request for extradition have been received, including a search for the person sought. When located the person sought shall be detained until the competent authorities of the Requested Party reach their decision. If the request for extradition is granted, the detention shall be continued until surrender.”
Yes, the editorial accurately quotes Article 9, but that Article states the obligation to detain arises only “after the information and documents related to the request for extradition have been received” (here, by the U.S.). The published reports indicate that some information and documents regarding Gulen have been provided to the U.S. by Turkey, but it is unclear if Turkey has completed that process. Moreover, as indicated above, the U.S. is meeting with Turkish officials to aid them in providing the necessary materials for the application.
The editorial also fails to examine Article 10(1) of the treaty, which provides, “In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey.” Article 10(2) then goes on to list what needs to be in such an application. Public information has not indicated that Turkey has availed itself of this remedy.
Relevant here, but unacknowledged by the Daily Sabah, is the U.S. Attorneys’ Manual that covers the procedures for detention or arrests of persons potentially subject to extradition in these situations.
Therefore, the Daily Sabah editorial, in this blogger’s judgment, is not well founded.
In the wake of the July 15 failed coup in Turkey, its President Recep Tayyip Erdogan and others in his government have been pressing the United States as soon as possible to extradite Fethullah Gülen, a Muslim cleric now living in Pennsylvania. This request is based upon Turkey’s allegations that Gülen was the mastermind of the attempted coup. The U.S., however, has not done so, stressing instead that the established U.S. legal procedures for extradition need to be followed. Turkey publicly has not accepted this response and repeatedly has criticized the U.S. for not extraditing Gülen.
As explained in an earlier post, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense. In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”
Here then is a preliminary analysis of the U.S. legal issues governing any such extradition request by Turkey.
The U.S. and Turkey do have such an extradition treaty that was signed in Ankara, Turkey on June 7, 1979, and entered into force on January 1, 1981.
Under Article 1 of the treaty each party has an obligation “to surrender to each other, in accordance with the provisions and conditions laid down in this Treaty, all persons who are found within the territory of the Requested Party [here, the U.S.] and who are being prosecuted for or have been charged with an offense, or convicted of an offense, or are sought by the other Party [here, Turkey] for the enforcement of a judicially pronounced penalty for an offense . . . .”
Here, Mr. Gülen apparently is found in the U.S. (the territory of the Requested Party) and is being prosecuted by Turkey (the Requesting Party). Thus, the preliminary condition of the treaty is satisfied.
Thus, the next issue is where did Mr. Gülen allegedly commit the offense. Since he apparently has not been in Turkey for many years, it would appear that whatever alleged offense he allegedly has committed was done “outside the territory of the Requesting Party” (Turkey).
That presents the next issue. Is Mr. Gülen still a citizen and thus a “national” of Turkey (the Requesting Party)? If he is, it would appear that Turkey “has jurisdiction, according to its laws, to try” him. Thus, the issue becomes whether the U.S. has an obligation to extradite him under other provisions of the treaty.
If, on the other hand, Mr. Gülen no longer is a national of Turkey, then the issue is whether “the laws of the Requested Party [the U.S.] provide for the punishment of such an offense committed in similar circumstances” and if so, whether the U.S. has an obligation to extradite him under other provisions of the treaty. Analysis of this issue would have to start with the particulars of the criminal charges under Turkish law, which so far are not readily available in public sources.
A potential treaty-based ground for the U.S. refusing to extradite Gülen is found in Article 3 (a), which states that extradition is not required, “If the offense for which extradition is requested is regarded by the Requested Party [here, the U.S.] to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.” However, Article 3 (a) goes on to provide that “any offense committed or attempted against a Head of State or a Head of Government or against a member of their families shall not be deemed to be an offense of a political character.” Here, the public statements by the Turkish government certainly indicate that this exception might apply.
Another potential ground for a U.S. refusal to extradite is found in Article 3 (e): “If the offense for which extradition is requested has, according to the laws of the Requested Party [here, the U.S.], been committed in its territory and has been or will be submitted to its appropriate judicial authorities for prosecution.” (Emphasis added.) This obviously would require a U.S. prosecution, which has not yet happened and probably will not happen, in my opinion.
Yet another potential ground for a U.S. refusal to extradite Gülen is in Article 4(1): “Neither of the Contracting Parties shall be bound to extradite its own nationals.” This would require him to be a naturalized U.S. citizen, and the public information does not indicate if Gülen is such a citizen. There was a source that said he obtained a U.S. “green card” or permanent residency status in 2001, and the U.S. ambassador to Turkey in January 2015 said he believed that Gülen was not a U.S. citizen.
Article 7 of the treaty has great details about the evidence that needs to be submitted, here by Turkey, to initiate a formal request for extradition. The public information to date indicates that Turkey has provided the U.S. with certain information and evidence, but whether it satisfies the requirements of Article 7 is not clear.
As indicated in a prior post, the final step in the U.S. process of determining whether an individual should be extradited includes the Secretary of State examining whether extradition would violate the U.S. obligations under the torture treaty.
With respect to Turkey this is a serious concern.
A. Concerns Raised bythe U.S. State Department
The most recent U.S. State Department report on human rights around the world said this about Turkey and torture in 2015. “The [Turkish] constitution and law prohibit torture and other cruel, inhuman, or degrading treatment, but there were reports that some government officials employed them. Human rights organizations continued to report allegations of torture and abuse, especially of persons who were in police custody but not in a place of detention, and during demonstrations and transfers to prison, where such practices were more difficult to document.”
“[Turkish] Prosecutors investigated allegations of abuse and torture by security forces during the year but rarely indicted accused offenders. The National Human Rights Institution (NHRI) is administratively responsible for investigating human rights violations, including allegations of torture, excessive use of force, or extrajudicial killings. Domestic human rights organizations claimed the NHRI’s failure to follow through in investigating potential human rights violations deterred victims of abuse from filing complaints. Authorities regularly allowed officers accused of abuse to remain on duty during their trial.”
“Human Rights Watch (HRW) alleged in a report published in September  that [Turkish] police abused detainees in August and September while responding to perceived security threats in the Southeast. It documented three cases in which police severely beat detainees, forced men to remain in kneeling positions for hours, and threatened them with torture and execution. In another case police detained a boy who had a severe gunshot wound and for several hours denied him medical treatment.”
“[Turkish] Police in several parts of the country sometimes used disproportionate force to disrupt protests, often leading to injury.”
“Human rights groups alleged that although torture and mistreatment in police custody decreased following installation of closed-circuit cameras in 2012, police continued to abuse detainees outside police stations. On July 13,  a media report included footage from security cameras showing police beating 24-year-old university student Tevfik Caner Ertay multiple times in 2013 during the Gezi Park protests before transporting him to a police station in the trunk of a police car. Ertay suffered multiple injuries, including a broken nose. Police perpetrators included some of the same officers later accused of killing fellow university student Ali Ismail Korkmaz.”
“Some human rights observers reported detainees often refrained from reporting torture and abuse because they feared retaliation or believed complaining to authorities would be futile. Human rights organizations documented cases of prison guards beating inmates and maintained those arrested for ordinary crimes were as likely to suffer torture and mistreatment as those arrested for political offenses, such as speaking out against the government.”
“Through the first nine months of the year , the [Turkish] Ministry of Justice reported 98 investigations regarding allegations of torture, 26 of which resulted in indictments.”
“The HRA reported receiving hundreds of allegations of torture and excessive use of force, including 213 cases through September 21  that involved the alleged abuse of detainees. For example, on January 29, in Sirnak, police reportedly beat four citizens whom they had detained during raids of their homes.”
B. Concerns Raised by the U.N. Committee Against Torture
As explained in an earlier post, the multilateral treaty against torture created a Committee Against Torture, one of whose responsibilities is to review the records of the parties to the treaty. That Committee on June 4, 2016, did just that for Turkey by issuing 20 numbered paragraphs of “principal subjects of concern.” Here are the key concerns for purposes of the pending extradition request.
“The Committee is concerned that, despite the fact that the State party has amended its law to the effect that torture is no longer subject to a statute of limitations, it has not received sufficient information on prosecutions for torture, including in the context of cases involving allegations of torture that have been the subject of decisions of the European Court of Human Rights. The Committee is also concerned that there is a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its periodic report . . ., suggesting that not all allegations of torture have been investigated during the reporting period. Further, while the State party has undertaken many investigations into allegations of ill-treatment and excessive use of force by its officials, these have resulted in relatively few cases of disciplinary sanctions, and in fines and imprisonment in only a small number of cases. The Committee regrets that the State party did not provide information requested by the Committee on the six cases in which officials received sentences of imprisonment for ill-treatment between 2011 and 2013, nor on any cases in which officials received sentences of imprisonment for ill-treatment in 2014 or 2015. The Committee further regrets that State party did not respond to the concern raised by Committee members that law enforcement authorities have on many cases brought ‘countercharges,’ such as ‘resisting’ or ‘insulting’ police officers, against those individuals lodging complains of torture, ill-treatment and other police brutality. The Committee further regrets, with reference to its previous recommendations . . . that the State party has not yet created an independent State body to investigate complaints of torture and ill-treatment against law enforcement officers.”
“The Committee is seriously concerned about numerous credible reports of law enforcement officials engaging in torture and ill-treatment of detainees while responding to perceived and alleged security threats in the south-eastern part of the country . . . in the context of the resurgence of violence between the Turkish security forces and the Kurdistan Workers’ Party (PKK) following the breakdown of the peace process in 2015 and terrorist attacks perpetrated by individuals linked to the so-called Islamic State in Iraq and the Levant (ISIL). The Committee is further concerned at the reported impunity enjoyed by the perpetrators of such acts.”
“In addition to the allegations of torture and ill-treatment of detainees noted above, the Committee is concerned at reports it has received concerning the commission of extrajudicial killings of civilians by the State party’s authorities in the course of carrying out counter-terrorism operations in the south-eastern part of the country. The Committee regrets that the State party did not respond to requests for information as to whether investigations are under way into widely reported cases, such as the alleged killing by police snipers of two unarmed women, . . . on 8 September 2015. The Committee also regrets the failure by the State party to ensure accountability for the perpetrators of killings in cases previously raised by the Committee, such as the killing by security forces of . . . in November 2004, which was the subject of a decision of the European Court of Human Rights. The Committee is further concerned at reports that family members of those killed in clashes between security forces and members of armed groups have been denied the ability to retrieve their bodies, which has the effect of impeding investigations into the circumstances surrounding those deaths.”
“The Committee is concerned that allegations of excessive use of force against demonstrators have increased dramatically during the period under review. The Committee notes with regret that the State party’s investigations into the conduct of officials in the context of the 2013 Gezi Park protests in Istanbul and Ankara have not resulted in any prosecutions, despite the allegations of excessive use of force noted by observers, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee also regrets that the State party did not provide any data on the specific sentences, if any, that police officers tried on charges of excessive use of force during the reporting period had received. It further expresses concern over the recent legislative amendments in the Domestic Security Package granting additional powers to the police, in particular the expanded power to use firearms against demonstrators.”
“Although the Criminal Code defines torture as a specific offence, the Committee notes that the definition set out in article 94 [of the Code] is incomplete inasmuch as it fails to mention the purpose of the act in question. There is also no specific mention of the act of torture carried out in order to intimidate, to coerce or to obtain information or a confession from a person other than the person who was tortured.”
“While taking note of the legal safeguards enshrined in Turkish legislation, the Committee is concerned at recent amendments to the Code of Criminal Procedure, which give the police greater powers to detain individuals without judicial oversight during police custody. Placing suspects under constant video surveillance in their cells is another matter of concern.”
“The Committee is concerned at the ‘almost complete lack of accountability for cases of enforced disappearance’ in the State party and its ‘palpable lack of interest [in] seriously investigating, prosecuting and adjudicating these cases’, as reported by the Working Group on Enforced or Involuntary Disappearances in its preliminary observations publicly . . . announced at the end of its visit to Turkey from 14 to 18 March 2016. . . .”
“The Committee regrets the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.”
“The Committee is concerned by the restrictive conditions of detention for persons sentenced to aggravated life imprisonment, a sentence that was established after the abolition of the death penalty in 2004.”
C. Human Rights NGOs and Others
Especially after the failed coup, human rights NGOs have raised increasing concerns about human rights in Turkey. These concerns were heightened by the Turkish government’s July 20 declaration of a state of emergency for the next three months. This gives the government the power to impose rule by decrees that are published and rushed through parliament for approval the same day. The possibility of review by the Constitutional Court is curbed. Human Rights Watch expressed its alarm over this development: “A state of emergency imposed where there are clear signs that the government is ready to crack down more broadly – combined with far more scope for unchecked executive action – is an alarming prospect. It risks further undermining democracy by providing a legal – if not justifiable – basis for a crackdown on rights.”
Amnesty International (AI) on July 18 (only three days after the attempted coup) said that several Turkish “government officials have suggested reinstating the death penalty as punishment for those found responsible for the failed coup, and . . . [AI] is now investigating reports that detainees in Ankara and Istanbul have been subjected to a series of abuses, including ill-treatment in custody and being denied access to lawyers.” Two days later AI stated, “We are witnessing a crackdown of exceptional proportions in Turkey,” including freedom of expression.
On July 24 AI reported that it had “gathered credible evidence that detainees in Turkey are being subjected to beatings and torture, including rape, in official and unofficial detention centers in the country.” According to these accounts, “police held detainees in stress positions, denied them food, water and medical treatment, verbally abused and threatened them and subjected them to beatings and torture, including rape and sexual assault.”
On August 2 President Erdogan in a public speech challenged AI’s research underlying its assertion that some detainees had been tortured. In response AI’s Secretary General stated, ““The serious human rights violations documented by an . . . [AI] team on the ground in Turkey are alarming. These findings are based on detailed interviews with lawyers, doctors, family members and an eyewitness to torture in a detention facility.”
A Turkish bar group in the capital of Ankara has stated that some of its members have reported alleged abuses of their clients in detention while other lawyers and human rights organizations have made similar allegations.
The Turkey-U.S. Dispute Over the Requested Extradition of Gülen
Turkey’s Foreign Ministry has to be aware of the terms of its extradition treaty with the U.S. and the latter’s procedures for handling extradition requests. Thus, Erdogran and his government’s strident complaints about the U.S. not immediately granting the request for Gülen has to be intended to show Turkish citizens the strength and resolve of the regime. There even have been rumors that the U.S. was behind the attempted coup.
In any event, “Usually deeply polarized, the two sides [of Turkey’s population] are largely united in their opposition to military coups and the . . . [extradition] of Fethullah Gülen, a Muslim cleric who lives in self-exile in Pennsylvania and has been accused by Turkey of orchestrating the failed uprising.” There even is widespread support for the “sweeping purge of suspected followers of Mr. Gülen from the state bureaucracy and other professions” and Mr. Erdogan’s asking “Turks to inform on those they believe are connected to Mr. Gülen.”
The unity was on vivid display at a recent Istanbul rally of at least two million Turks who put aside their political differences to express solidarity.” (To the right is a photograph of that rally.)
The U.S., however, needs to continue to resist acquiescence in these strong-arm tactics and to insist on following U.S. law and procedures for such requests. Secretary of State Kerry and President Obama have done just that. So too have State Department spokespeople at daily press briefings. This is not easy since the U.S. has a strong national security interest in maintaining Turkey as an ally in the fight against ISIS/ISIL.
Tomorrow U.S. Vice President Joe Biden will be visiting Turkey to see President Erdogan. The Associated Press opines that Biden will have difficulties in persuading Turkey that the U.S. values Turkey as a key NATO ally amid worrying signs that Turkey is flirting with having closer ties with Russia and that the U.S. and Turkish approaches to the Syrian conflict may be diverging.
Today, says the Associated Press, a U.S. Justice Department team is meeting with Turkish officials in Ankara to discuss U.S. technical requirements of Turkey’s extradition request. This includes firm evidence of Gülen’s involvement in the coup whereas senior officials in the Obama administration say Turkey’s extradition requests to date have been based on allegations of other crimes against Gülen, not evidence of involvement in the coup attempt. A Turkish professor of international relations said that Turkish “people have an expectation that Gülen should be returned to Turkey immediately. If the extradition request is refused or delayed I’m afraid that’s going to have serious repercussions.”
The Washington Post editorial board urges the Vice President “to reassure Mr. Erdogan once again that the two nations share vital interests, not the least of which are fighting the Islamic State and ending the conflagration that has consumed Syria.” The Vice President also “should make clear he understands how much Turkish civilians are suffering from terrorist attacks” and “convince Mr. Erdogan that the United States does not desire to destabilize Turkey.”
The Washington Post editorial further urges Biden “to candidly tell his host that the United States did not instigate the coup and that it will not relinquish Mr. Gülen to a witchhunt. Mr. Erdogan may not want to hear it, but he also should be reminded that crushing the rule of law will dim Turkey’s prospects.”
In the midst of this high-stakes squabble between the two countries, Gülen wrote an article for the New York Times in which he stated, “During the attempted military coup in Turkey this month, I condemned it in the strongest terms. ‘Government should be won through a process of free and fair elections, not force.’ I said, ‘I pray to God for Turkey, for Turkish citizens, and for all those currently in Turkey that this situation is resolved peacefully and quickly.’” President Erdogan’s suggestion that I was the mastermind of the coup “run[s] afoul of everything I believe in, it is also irresponsible and wrong. My philosophy — inclusive and pluralist Islam, dedicated to service to human beings from every faith — is antithetical to armed rebellion.”
Moreover, Gülen said, “Throughout my life, I have publicly and privately denounced military interventions in domestic politics. In fact, I have been advocating for democracy for decades. Having suffered through four military coups in four decades in Turkey — and having been subjected by those military regimes to harassment and wrongful imprisonment — I would never want my fellow citizens to endure such an ordeal again. If somebody who appears to be [my] . . . sympathizer has been involved in an attempted coup, he betrays my ideals.”
Gülen concluded his article with this plea to the U.S. government. The U.S. “must not accommodate an autocrat [Erdogan] who is turning a failed putsch into a slow-motion coup of his own against constitutional government.”
 U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition.
Previous posts have reported that the National Court of Spain in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.
One of these defendants had died; one had been living in the U.S.; two have been cooperating with the Spanish investigation; and the whereabouts of three are unknown. The other 13 are believed to be living in El Salvador.
Ever since May 2011 Spanish authorities have been seeking extradition of 13 of these men from El Salvador and one from the United States. But extradition has not happened yet. Here is an update on the status of those efforts.
Developments in El Salvador
In December 2011 Spain requested extradition of 13 of them who were then believed to be in El Salvador. In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens.
In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appeared to be in direct conflict with the just mentioned Court’s May 2012 ruling against extradition in the Spanish case.
In response to the August 2015 ruling, the Salvadoran Human Rights Ombudsman, David Morales, on November 16, 2015, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 13 former military officials who were subjects of the INTERPOL arrest warrants.
The Ombusman also issued a resolution asking Spanish authorities to re-issue the arrest warrants for extradition purposes in this case. This request was endorsed in the Spanish case by the U.S.-based Center for Justice and Accountability (CJA) and the Spanish Association for Human Rights (APDHE).
On January 4, 2016, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.
On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of former Salvadoran military officials and soldiers, but that the country’s Supreme Court would make the final decision.
In February 2016 Salvadoran authorities arrested and detained four of the former Salvadoran military officials who are sought for this Spanish criminal case. The four were former colonel Guillermo Alfredo Benavides Moreno; former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. The Salvadoran National Civilian Police (PNC) force said that it would “continue the search and capture of the rest of the wanted persons and will inform the public in the opportune moment.” To date, however, no additional arrests have been reported.
On July 14, 2016, the full Supreme Court of El Salvador was scheduled to release its decision on the latest request to issue extradition warrants in this case. The day before, however, the Constitutional Chamber of the Court decided that the country’s Amnesty Law was unconstitutional, which was discussed in a prior post. As a result, the full Supreme Court stayed further proceedings about the extradition warrants.
On August 16, 2016, the Supreme Court unanimously, 15-0, decided that former colonel Guillermo Alfredo Benavides Moreno could not be extradited. The court, 11-4, also ordered that Benavides be detained in a Salvadoran prison in accordance with his conviction and imposition of a 30-year sentence by a Salvadoran court before passage of the amnesty law; after the passage of that law Benavides was released from prison. As a result, extradition was barred by a provision of the El Salvador-Spain extradition treaty that says extradition can be denied “if the person whose extradition is requested “has been tried and finally acquitted or convicted [of the same crime].”
The Supreme Court, however, has not yet ruled on the request to extradite the other three men– former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. They also were tried by a Salvadoran court for illegal homicide, which is an essential element of the crime now being pursued in Spain, but these three men were acquitted in a Salvadoran trial with many alleged irregularities. Strict application of the rationale of the above Supreme Court decision and the cited provision of the extradition treaty and the underlying notion of no double jeopardy suggest that they too should not be subject to extradition, but the irregularities in their trial are impediments to that analysis. We now await the Salvadoran Supreme Court’s ruling on these three men.
On April 1, 2016, Montano filed in that court an Application for a Writ of Habeas Corpus, which is the only way for him to appeal or challenge that decision.
On April 26, the U.S. moved to dismiss that habeas application. Its brief argued that the certification of extraditability would not be overturned if there was any evidence warranting the finding that there was a reasonable ground to believe that the individual was guilty of the crime in the foreign country and that there was such evidence in this case. On June 10 the U.S. submitted its reply to the petitioner’s opposition to the dismissal motion; it argued that the response raised no issues needing further rebuttal.
Montano Morales, however, was not finished. On July 21, he submitted another brief arguing that there was insufficient evidence to support the certification order’s probable cause conclusion. He also asserted that the court should consider certain declassified U.S. government cables with respect to the probable cause conclusion. On August 10, the U.S. again rejected Montano’s arguments, emphasizing that the habeas review was “limited to ascertaining ‘whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes’” and that there was such evidence. (Emphasis added.)
The matter is now submitted for decision by U.S. District Judge Terrance W. Boyle.
According to Patty Blum, senior legal adviser with the Center for Justice and Accountability, which filed the original complaint in the Jesuit case with the Spanish court in 2008 and which supported the request for extradition of Montano, the habeas corpus application is unlikely to “get much traction substantively” as the order granting extradition already rejected the core arguments of the new petition and the Magistrate Judge “did a thorough job of reviewing the record and giving a reasoned, detailed opinion.”
 Prior posts covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25th anniversary of the Jesuit martyrs in November 2014. These posts are identified in reverse chronological order of posting in a computer-generated list. They also are identified in logical sequence in “The Jesuit Priests” section of my manually prepared List of Posts to dwkcommentaires—Topical: El Salvador. There also is extensive discussion of the Spanish case in the website of the Center for Justice and Accountability, the U.S.-based human rights organization that is involved in that case.
 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241, et seq, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 1, 2016).
 Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 26, 2016); Response in Opposition to Federal Respondents’ Motion To Dismiss Application for Writ of Habeas Corpus, and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (May 18, 2016); United States’ Reply to Petitioner’s Response in Opposition Regarding Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (June 10, 2016).
 Supplemental Filing To Support Petition for Write of Habeas Corpus and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (July 21, 2016); Government’s Response to Supplemental Filing To Support Petition for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (Aug. 10, 2016).