The due process dilemma
A Czech quandary: Doing justice or rendering the law meaningless?
January 18th, 2006
By Bill Cohn
Czech authorities must decide whether to extradite a criminal
suspect to the United States. It sounds simple enough — examine
the relevant extradition treaty and apply it. But, as countries of the
world have learned, it's not easy to define their role in a global war
on terror (GWOT) that has produced more questions than answers.
The Czechs face a dilemma so there are no easy answers.
Oussama Kassir, a Swedish citizen, was arrested in Prague Dec. 11
during a stopover on a flight from Stockholm to Beirut. Kassir,
accused of helping to set up a terrorist camp in Oregon in 1999 for
training Islamic Jihadists, was arrested and detained at Ruzyně
Airport. He is being held in Pankrác prison in Prague while the
United States seeks his extradition.
The current Czech–U.S. extradition treaty does not cover Mr.
Kassir's alleged offenses, but a 1997 International Convention
might. Indeed, we are in new terrain respecting many legal and
ethical issues in the GWOT, and dividing lines are being drawn in
the debate over means and ends.
An ethical dilemma exists when a decision-maker must choose between held values that are in conflict.
In the GWOT we have seen legal and ethical dilemmas between individual rights and national security,
executive power and oversight, deception and honesty, exigent circumstances and fair process, secrecy
and accountability, and here, between the established rule of law and a purported need to fundamentally
alter those rules.
The British authorities faced the same dilemma as the Czechs. On Jan. 5 Judge Timothy Workman ruled
that an alleged co-conspirator of Kassir's, Haroon Rashid Aswat, can be extradited to the United States to
stand trial. The ruling came only after the court received a written note from U.S. prosecutors stating
that Aswat would be tried in U.S. federal court, not before a military tribunal, and that he would not be
designated an enemy combatant, thereby enabling the judge to find that a "trial could be properly and
fairly conducted without a breach of the defendant's rights." Why did the British need such assurances?
The administration of U.S. President George W. Bush has essentially devised a four-tier justice system
(with the middle tiers morphing in response to external pressure): the judicial system governed by the
rule of law; military tribunals with a hearing process where the accused is allowed limited access to
counsel and evidence, and contested verdicts are reviewed by a panel chosen by the defense secretary,
not the judiciary; detention centers for those deemed "enemy combatants," who may be held indefinitely
without access to counsel or federal courts; and secret CIA-run prisons that are black holes of
lawlessness to which abductees are whisked away by masked agents.
It is instructive to examine Marc Ellenbogen's opinion piece ("Not Convinced," Jan. 4–10), to expose
some common misconceptions. This piece distorts the nature of so-called extraordinary rendition. This is
understandable given the antiseptic language used by policymakers and the media — e.g., extraordinary
rendition, not kidnapping; collateral damage, not innocent people killed.
Mr. Ellenbogen writes, "Nothing the CIA and U.S. security forces are doing today is new." However, the
historical examples noted all involved the cooperative application of extradition treaties, international law
and judicial processes. In its GWOT, the United States has used extraordinary rendition for extrajudicial
abductions. With no criminal charges pending, suspects are abducted and sent to foreign countries,
where they are often interrogated in torture cells.
Such suspects are kept hidden, denied legal counsel and brutalized, sometimes for years. There is a
shocking difference between ordinary rendition — involving the jurisdictional transfer of criminal suspects
through proper legal channels — and the secret abduction of people. The current program bears no
resemblance to extradition. Extrajudicial action is neither founded upon nor connected with any court of
law.
The International Bar Association (IBA), following its 2005 annual meeting in Prague Sept. 25–30, issued
a strongly worded resolution denouncing practices such as extrajudicial abductions: "The IBA, the global
voice of the legal profession, deplores the increasing erosion around the world of the rule of law. ...The
rule of law is the foundation of a civilized society. It establishes a transparent process accessible and
equal to all. It ensures adherence to principles that both liberate and protect."
I do not discount the importance of the ends in combating terrorism. Born and raised in New York, I
know the agony and devastation caused by desperate suicidal lunacy. But the means employed have
been self-defeating. We must work from our strengths and the strength of democracies is in affirming
their principles by living example.
Mr. Aswat's lawyer, Paul Bowen, plans to appeal Judge Workman's ruling to the House of Lords as the
assurances offered to the British court are not legally binding upon Bush. Bowen told the court that his
client has "nothing to fear from a trial itself. What he fears is the process he faces in the United States."
Jose Padilla is the poster child for exposing the absurd legal shenanigans of the GWOT. Rumsfeld v.
Padilla has seen prosecutors play a cat-and-mouse game with the courts whereby they have changed the
allegations, legal classification and custody of Padilla multiple times in order, primarily, to thwart the
Supreme Court from hearing the case and setting rules, but also to deny Mr. Padilla his day in court. He
is being held in a legal limbo from which there seems no exit.
The Bush administration has painted itself into a corner: By taking so many extrajudicial prisoners, it is
now unable to bring them back into the legal system (U.S. courts demand transparency and do not allow
evidence illegally obtained). By holding these detainees indefinitely, without charges or counsel and
under unconscionable conditions, it has undermined its ability to use their testimony to convict them or
other suspected terrorists in a court of law. The administration now faces the predicament of what to do
with these people.
As David Cole recounts in the Nov. 17 New York Review of Books, democracy prevails against its enemies
precisely because it is willing to fight with one hand tied behind its back — i.e., it prevails by adhering to
the rule of law, thus showing the principles for which it stands.
Czech officials cannot talk out of three sides of their mouth on this one. The suspect is either handed
over or not. They can either believe any assurances forthcoming from the United States, or can be
skeptical and seek an alternative approach or forum.
I respectfully suggest that the Czech authorities be principled and offer straight talk grounded in the
values set forth in their Constitution, notably its eloquent preamble and Charter of Fundamental Rights
and Freedoms. Looking to international and foreign law may also help to inform their decision. As for
handing over Mr. Kassir, the decision is all theirs.
— The author, a member of the California and International Bar Associations, has a manuscript on
international law, "A mirror on the wall: El-Masri v. Tenet and the rule of law (from Nuremberg to Kabul,
Baghdad and beyond)," coming out in March.
http://www.praguepost.com/articles/2006/01/18/the-due-process-dilemma.php on 23.11.2006