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August 20, 2011

International Cooperation On CT Cases
Posted by James Lamond

With so much going on this week, one piece of terrorism news went largely under the radar. Mahamud Said Omar, a suspect on charges of material support for terrorism was extradited from the Netherlands to the U.S. after being indicted by a U.S. federal court in 2009 and arrested in the Netherlands later that year. The FBI press release has more details here

What makes this case so interesting is what Robert Chesney points out over at Lawfare:

“the first important thing to note about the Omar case is that there almost certainly was no alternative to charging him in civilian court.  He was arrested in the Netherlands, after all, and as we saw previously with the Delaema case, the Dutch are not likely to extradite if we plan to hold someone in military detention or use a military commission.  This alone ought to be enough to stop Congress from passing legislation that would categorically bar civilian prosecution in all cases where military detention or a commission proceeding might also be a possibility." 

The importance of international cooperation in combatting and prosecuting terrorists is an often overlooked part of the discussion about terrorism prosecution and detention.  David Kris, who served as assistant attorney general for national security until earlier this year outlined in a recent paper: 

“the criminal justice system may help us obtain important cooperation from other countries. That cooperation may be necessary if we want to detain suspected terrorists  or otherwise accomplish our national security objectives.  Our federal courts are well-respected internationally. There are well-established, formal legal mechanisms that allow the transfer of terrorism suspects to the United States  for  trial  in  federal  court,  and  for the provision of information to assist  in  law  enforcement  investigations  – i.e., extradition and mutual legal assistance treaties (MLATs).  Our allies around the world are comfortable with these mechanisms, as well as with more informal procedures that are often used to provide assistance to the United States in law enforcement matters, whether relating to terrorism or other types of cases.  Such cooperation  can be critical to the success of a prosecution, and in some cases can be the only way in which we will gain custody of a suspected terrorist who has broken our laws. 


“In contrast, many of our key allies around the world are not willing to cooperate with or support our efforts to hold suspected  terrorists  in  law  of war detention or to prosecute them  in  military  commissions.   While we hope that over time they will grow more supportive of these legal mechanisms, at present many countries would not extradite individuals to the United States for military commission proceedings or law of war detention.  Indeed, some of our  extradition treaties explicitly forbid extradition to the United States where the person will be tried in a forum other than a criminal court.  For example, our treaties with Germany (Article 13) and with Sweden (Article V(3)) expressly forbid extradition when the defendant will be tried in  an ‘extraordinary’ court, and the understanding of the Indian government pursuant to its treaty with the United States is that extradition is available only for proceedings under the ordinary criminal laws of the requesting state.”

As Kris explains, this is not hypothetical, “There  are  a  number  of  terror  suspects currently  in foreign custody who likely would not be extradited to the United States by foreign nations if they faced military tribunals.” In his foot notes, Kris points to specific examples. The Oussama Kassir, who in 2007, the Czech Republic extradited to the United States based on assurances that he would not be prosecuted in military tribunals.  Kassir was eventually found guilty in the civilian court. He also cites the Syed Hashmi case, who was extradited to the U.S. in 2007 from the UK based on assurances from the US that he would not be prosecuted in military tribunals.  He too, is in behind bars after pleading guilty last year. There are also a number of extradition cases, similar to the Omar case, pending , where the U.S. has had to provide assurances not to use military courts. This makes the efforts on Capitol Hill requiring military custody and tribunals all the more puzzling. 

What also stands out in this case is its similarity to the Warsame case from earlier this summer. Warsame’s connection to AQAP and the circumstances around the arrest are different, there are many similarities. Yet the decision to try Warsame in a civilian court was met with an uproar from the right calling for him to have been tried in a military commission, but the Omar case received barely a whimper. 


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