INTERPRETING THE NEW LANGUAGE OF THE NATIONAL DEFENSE AUTHORIZATION ACT: A POTENTIAL BARRIER TO THE EXTRADITION OF HIGH VALUE

TERROR SUSPECTS I. INTRODUCTION On December 31, 2011, Congress signed into law the National Defense Authorization Act (NDAA), which included hotly contested language found in Subtitle D Counterterrorism.1 While the national controversy centered primarily on whether the language granted executive authority to indefinitely detain American citizens,2 another potentially cumbersome consequence of the legislation lurks in the background. In Sections 1021 and 1022, the very language designed to aid in the fight against terror may, in fact, unintentionally create a barrier to the extradition of many, long-sought-after terror suspects taken into custody outside of the United States.3 This unintended consequence would prevent those same terror suspects, some of whom are highranking members of al-Qaeda,4 from being extradited to the United States to stand trial. This Note examines the potential barriers to extradition that currently exist between the United States and her European allies, and how the language in Sections 1021 and 1022 of the NDAA may invoke these obstructions, particularly with respect to Article 6 of the European Convention on Human Rights (Convention), which guarantees the right to a fair trial.5 How the United States interprets and applies the statutory language dealing with the authority of the armed forces to detain covered persons and to mandate military custody for foreign al-Qaeda

1. H.R. Res. 1540, 112th Cong. (2011) (enacted), available at http://www.gpo.gov/fdsys/pkg/ BILLS-112hr1540enr/pdf/BILLS-112hr1540enr.pdf. 2. See, e.g., Erik Kain, President Obama Signed the National Defense Authorization (Jan. 2, 2012), Act Now What?, FORBES http://www.forbes.com/sites/erikkain/2012/01/02/president-obama-signed-the-nationaldefense-authorization-act-now-what/; Amanda Simon, President Obama Signs Indefinite Detention Into Law, ACLU (Dec. 31, 2011, 4:20 PM), http://www.aclu.org/blog/nationalsecurity/president-obama-signs-indefinite-detention-law. 3. H.R. Res. 1540 (enacted). 4. See, e.g., Sean ONeill, Worldwide Trail of Bloodshed That Leads to Suburban TELEGRAPH, Sept. 19, 2001, London, THE http://www.telegraph.co.uk/news/worldnews/northamerica/usa/1340963/Worldwide-trailof-bloodshed-that-leads-to-suburban-London.html. 5. See European Convention on Human Rights art. 6, May 3, 2002, C.E.T.S. No. 194, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/Convention_ENG.pdf.

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terrorists pending disposition under the law of war6 will prove essential regarding the future of many terror suspects awaiting extradition to the United States from the U.K. and other European countries. Part II will provide the background necessary to understand the European view toward the Convention as it relates to extradition. Understanding this view is instrumental to the United States effectively interpreting and applying Sections 1021 and 1022 of the NDAA in a way that facilitates, rather than impedes, extradition for wanted terror suspects. Part III examines current extradition cases in the U.K. and Germany, and analyzes the text of Sections 1021 and 1022, providing guidance for future interpretation and application. Part IV concludes by recommending that current and future presidential administrations consider the implications of the NDAA, as it provides for the assurances necessary to secure extradition. Part IV provides that these assurances must include trials in regularly constituted courts and avoiding military detention and application of the death penalty. II. BACKGROUND A. The European Approach to Extradition May Result in a Refusal to Extradite Unless the United States Continues to Promise Trial of Terror Suspects in Regularly Constituted Courts After long-avoiding formal commitments to extradition, in the 1840s, Congress created a statute requiring the United States government to utilize treaties to extradite. Further, the United States reluctantly entered into bilateral extradition treaties, each uniquely designed to address specific concerns.7 In addition to this statutory treaty requirement for extradition, the United States chose to utilize the executive, noninquiry model when responding to extradition requests from another country.8 The non-inquiry approach places the judicial system in a functionary role of ensuring compliance with bilateral treaties,

6. H.R. Res. 1540 (enacted). 7. Kyle M. Medley, Responsibility and Blame: Psychological and Legal Perspectives: The Widening of the Atlantic: Extradition Practices Between the United States and Europe, 68 BROOK. L. REV. 1213, 1216 (2003). In fact, the American reluctance to extradition treaties sprang from an aversion to hampering American democratic ideals and tarnishing the nations reputation as a haven for political refugees by miring itself within the legal restrictions of extradition treaties. Id. 8. Id. at 1221.

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encompassing little inquiry into executive branch decisions.9 Noninquiry presumes the requesting country affords a fair trial to the suspect returned to it.10 The U.S. policy of non-inquiry is based on four primary principles: (1) the Constitution delegates responsibility for foreign affairs to the executive branch and, as such, the courts are not to be involved in scrutinizing foreign affairs; (2) the courts are ill-suited for the investigation or scrutiny of foreign affairs and, thus, should not be involved; (3) rendering judicial decisions affecting the prosecution of a suspect by a foreign state impinges upon that nations sovereignty; and (4) any judicial scrutiny hampers the process of extradition, thus enabling criminals to elude prosecution.11 The American approach values the international communitys respect for each nations sovereignty and relies upon mutual cooperation, such that each country should strive to accommodate another country in returning fugitives without questions, for one day that country may need the favor returned.12 In stark contrast to the American judiciarys relatively passive role in the extradition process is the European method of judicial inquiry. The European method allows the judiciary to take a determinative role in assessing the individual merits of each extradition case.13 This model regularly inquires into a requesting [states] judicial procedure and [modes] of punishment, ultimately refusing extradition if the potential treatment or punishment of the suspect does not comport with the sending states viewpoints.14 The result has been an activist role on the part of the European Court of Human Rights (European Court) to ensure an individual will be treated properly by the requesting state before allowing extradition.15 Naturally, human rights advocates prefer the European method of judicial inquiry,16 and the European approach to evaluating extradition requests highlights the rifts in Euro-American methods of punishment.17 In fact, European human rights advocates have been highly critical of American domestic legal policies, such as the death penalty.18 As a result, European courts have delayed many pending
9. Id. See also Michael J. Bowe, Deportation as De Facto Extradition: The Matter of Joseph Doherty, 11 N.Y.L. SCH. J. INTL & COMP. L. 263, 270-71 (1990) (explaining the American approach to extradition and the American judiciarys limited role). 10. Medley, supra note 7, at 1223. 11. Id. at 1223. 12. Id. 13. Id. at 1224. 14. Id. 15. Id. at 1224-25. 16. Medley, supra note 7, at 1224, 1231. 17. Id. at 1230. 18. Id. at 1224, 1231.

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extradition requests for terror suspects for years because the European view of the death penalty equates to inhumane and degrading punishment in violation of Article 3 of the Convention.19 In contrast, courts have upheld extradition when the United States promises the sending state that it will not seek the death penalty, even if it is available in the instant case.20 More specifically in the case of terror suspects, courts have upheld extradition when the United States further promises not to detain the suspects in military custody and to try them in regularly constituted civilian courts.21 These promises allow the sending state to fulfill extradition requests while still maintaining individual human rights for suspects as guaranteed by the Convention. With the new language included in the NDAA, the United States will need to continue to assure her European allies that those terror suspects who fall under the language of Sections 1021 and 1022 will not be subjected to the death penalty in violation of Article 3. Moreover, the United States will need to ensure that those terror suspects will not be tried in military tribunals, but rather in regular courts, to comport with Article 6 of the Convention guaranteeing adequate due process of law.22 B. Soering Established an Individual Right to Petition the European Court for Alleged Convention Violations, Creating a Significant Obstruction to Extradition Soering v. United Kingdom23 is the seminal case marking the current nature of Euro-American extradition and highlighting the European method of judicial inquiry.24 Soering fundamentally changed the role of the European judiciary with respect to extradition by vest[ing] rights in individuals, not simply in states.25 In Soering, the European Court held that the extradition of Jens Soering from the U.K. to the United States to face murder charges with a potential death sentence would violate the Convention, specifically Article 3.26
19. See, e.g., The Queen (on the Application of Adel Abdul Bary and Khalid AlFawwaz) v. Secy of State for the Home Dept, [2009] EWHC 2068, [ 7-8] (U.K.) [hereinafter Al-Fawwaz], available at http:www.unhcr.org/refworld/pdfid/4ac332c12.pdf. 20. See, e.g., Soering v. United Kingdom, App. No. 14038188, 11 Eur. H.R. Rep. 439 (1989). 21. See, e.g., Al-Moayad v. Germany, 44 Eur. H.R. Rep. 258-59 13-14 (2007). 22. Council of Europe, European Convention on Human Rights, art. 6, 1 C.E.T.S. No. 194 (May 3, 2002). 23. App. No. 14038188, 11 Eur. H.R. Rep. 439 (1989). 24. Soering, 11 Eur. H.R. Rep. at 439. 25. See Michael P. Shea, Expanding Judicial Scrutiny of Human Rights in Extradition Cases After Soering, 17 YALE J. INTL L. 85, 86 (1992). 26. Soering, 11 Eur. H.R. Rep. at 439.

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In August 1988, the British government ordered Jens Soerings surrender to the United States; however, Soering preempted the order by petitioning the European Court. Soering claimed that his extradition to the United States by the U.K. would expose him to the death row phenomenon, thereby subjecting him to inhumane and degrading treatment in violation of Article 3 of the Convention.27 He also claimed violation of Article 6 because he would not be represented properly due to a lack of legal aid in Virginia.28 In the end, the court determined that because U.S. courts offer due process and a right to a fair trial, Article 6 had not been breached.29 But, the court also determined that the potential imposition of capital punishment constituted a breach of Article 3.30 Except for the assurances provided by the United States that the Virginia court would not impose capital punishment, Jens Soering would have completely avoided trial in the United States. Instead, these assurances were pivotal to his extradition and subsequent trial in Virginia where he was found guilty of the murders and sentenced to two consecutive life terms.31 Soering is significant because it established the right of an individual to submit a claim before the European Court regarding potential Convention violations as they relate to pending extradition requests.32 Many terror suspects continue to fight extradition to the United States by successfully employing this individual right.33 It is important that the United States understand how terror suspects utilize Articles 3 and 6 to deter extradition. This understanding is instrumental as all levels of American government interpret and apply the new statutory language of Sections 1021 and 1022 of the NDAA to ultimately bringing terror suspects to justice. Continuing to provide reliable assurances may prove the lynchpin to future extraditions.34
27. Id. at 448. Mere threat of a potential death sentence was insufficient to bar extradition because Article 2(1) of the Convention provides for the death penalty; however, until Soering, no court had interpreted Article 3 as bringing the death penalty within the definition of inhuman or degrading treatment or punishment. Richard B. Lillich, The Soering Case, 85 AM. J. INTL L. 128, 130-31 (1991). In fact, Soering accomplished this for the first time by introducing the idea of the death row phenomenon as violating Article 3. Id. 28. Soering, 11 Eur. H.R. Rep. at 439. 29. Id. 30. Id. 31. Soering v. Deeds, No. 99-6498, 217 F.3d 840, at *1 (4th Cir. June 30, 2000) (Westlaw). 32. Soering, 11 Eur. H.R. Rep. at 439. 33. See, e.g., Al-Fawwaz, [2009] EWHC 2068. 34. It is important to note that despite the seemingly uncertain nature of these assurances, all assurances made to date have been upheld with a sterling record of 100%

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C. The European Court of Human Rights and the Role of Articles 3 and 6 as They Affect Extradition Through the European Court on Human Rights,35 the European Convention protects, inter alia, the right to life, liberty and security; the right to a fair trial; the right to respect for private and family life; freedom of thought, conscience, religion, and expression; and freedom of assembly and association.36 In addition to securing rights for individuals, the Convention prohibits torture, slavery and forced labor, arbitrary and unlawful detention, and discrimination in the enjoyment of the rights and freedoms secured by the Convention.37 Thus, the [Convention] is the most developed system for the international protection of civil and political rights, not necessarily in the sense of being the best devised, or

compliance on behalf of the United States, and have received utmost respect from the European Court and Americas European allies. See Soering, 11 Eur. H.R. Rep. at 451-52 (stating that it is customary to accept the assurances of the requesting party and that all previous assurances from the United States have been met with compliance); Al-Fawwaz, [2009] EWCH (Admin.) at 51 (stating that historically the U.S. record of assurances is remarkable). This demonstrates that the current system of extradition works because of cooperative efforts with all parties involved understanding that to achieve the ultimate goal of bringing a suspect to justice, the adjudicating and prosecuting authorities must consider the weight and extent to which the extraditing country adheres to the European Convention. See id. 35. The end of World War II saw the creation of the Council of Europe, which soon proposed the European Convention on Human Rightsan international treaty aimed at protecting fundamental freedoms and human rights. Who We Are, COUNCIL OF EUROPE, http://www.coe.int/aboutCoe/index.asp?page=quisommesnous&l=en (last visited Sept. 26, 2012). Soon thereafter, the Council created the European Court of Human Rights, which established a forum where individuals, organizations, and states could file claims against the countries bound by the Convention. Id. Today, forty-seven countries have ratified the Convention. Id. These countries are bound by the judgments of the European Court and are obliged to execute such judgments. Id. Most of the member nations have incorporated the Conventions laws into their own national laws, and, while neither the Council of Europe nor the European Court provide a mechanism for enforcement, participating members acknowledge the finality of the judgments from the European Court and purport to enforce them per the treatys obligations. EUROPEAN COURT OF HUMAN RIGHTS, THE ECHR IN 50 QUESTIONS, 9-10, at 38 (2012), available at http://www.echr.coe.int/NR/rdonlyres/5C53ADA4-80F8-42CB-B8BDCBBB781F42C8/0/FAQ_ENG_A4.pdf. 36. See Council of Europe, European Convention on Human Rights arts. 2, 5, 6, 8-11, May 3, 2002, C.E.T.S. No. 194, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A/0/ENG_CONV.pdf. 37. Id. at arts. 3, 4, 7, 14.

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having a supervisory body with the most sophisticated reasoning, but as having the most extensive interpretative case law.38 With over fifty years of case law and experience, the European Court has become an integral part of European jurisprudence, and as such, is an important piece in understanding the extradition process. This is particularly true when the requesting country differs in regards to certain rights established by the Convention. If the requesting countrys laws and practice would violate the Convention, then the European country on request cannot honor the extradition request without itself violating the Convention. In fact, case law has revealed that European countries will not extradite a suspect in cases where the requesting country will likely violate an article of the Convention. 1. Article 3 Prohibition of Torture Article 3 most closely parallels U.S. Constitutional Amendment VIII prohibiting cruel and unusual punishment.39 Article 3 plainly states, [n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.40 This Article has been the centerpiece of many fights against extradition to the United States from European countries due in large part to the continued use of capital punishment in the United States.41 2. Article 6 Right to a Fair Trial Article 6 most closely parallels U.S. Constitutional Amendment V in providing for the right to a fair trial and due process of law for the criminally charged.42 Article 6 includes inter alia the right to a fair trial
38. IAIN CAMERON, THE EUROPEAN CONVENTION ON HUMAN RIGHTS, DUE PROCESS UNITED NATIONS SECURITY COUNCIL COUNTER-TERRORISM SANCTIONS, 21 (2006), available at http://www.coe.int/t/dlapil/cahdi/Texts_&_Documents/Docs%202006/I.%20Cameron%2 0Report%2006.pdf. 39. U.S. CONST. amend. VIII. 40. Council of Europe, European Convention on Human Rights art. 3, May 3, 2002, C.E.T.S. No. 194, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC134318-B457-5C9014916D7A/0/ENG_CONV.pdf. 41. The United States remains the only western country and one of only 58 countries in the entire world that retains use of capital punishment. Death Sentences and INTL (Mar. 2011), Executions 2010, AMNESTY http://www.amnesty.ie/sites/default/files/Use%20of%20Death%20Penalty%202010.pdf. The only other European country to retain the death penalty is Belarus, which incidentally is not a party to the Convention. Id. 42. U.S. CONST. amend. V.
AND

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by an independent and impartial tribunal, the presumption of innocence, that legal assistance will be provided in the event the accused cannot afford to defend himself, and the right to examine the evidence against him.43 Modern extradition cases demonstrate that the American view on capital punishment, and whether such punishment amounts to inhuman and degrading (or cruel and unusual) punishment, differs greatly from the European view so much so that it is a barrier to extradition. To date, Article 6 and whether or not American courts provide a fair trial has not proven to be a barrier to extradition because European courts are persuaded that American courts offer more than adequate due process for those on trial.44 Military tribunals however, present a different concern. Tribunals pose a threat to extradition in that terror suspects may claim Article 6 violations, arguing that a trial by military tribunal deprives them of due process and denies them a right to a fair trial. D. Do Military Commissions Violate Article 6? The past decade highlighted the difficulties of achieving success within the military commission process and cast a dark shadow of doubt
43. Council of Europe, European Convention on Human Rights art. 6, May 3, 2002, C.E.T.S. No. 194 states in full: 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. 44. See, e.g., Al-Moayad, 44 Eur. Ct. H.R. at 16.

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as to their efficacy.45 The examples of al-Fawwaz and the other terror suspects currently fighting extradition demonstrate that the European community expects assurances that the United States will try these suspects in regularly constituted courts and not by military commissions.46 The past ten years have produced no evidence that the European community will now be more comfortable with trial by military commission than it was before.47 It is safe to assume that if the United States wants to extradite these terror suspects, it will have to provide the same assurances, namely a promise of trial by regularly constituted courts with no prospect of the death penalty and avoidance of detention by the military. Military commissions have a long history in the United States, reemerging at the forefront of the political landscape after the September 11th terrorist attacks when President George W. Bush deemed terror suspects enemy combatants to be tried by military tribunals instead of in civilian courts.48 The prosecution of these cases was soon mired in protracted legal challenges, and in 2006, President Bush signed the Military Commissions Act (MCA) to authorize and establish procedures for military tribunals in response to the Supreme Court decision in Hamdan v. Rumsfeld.49 Following Hamdan, pro-military tribunal advocates fought hard to pass legislation limiting terror suspects solely to military tribunals, arguing inter alia that federal law enforcement and criminal procedures were inadequate to garner much needed intelligence from detained suspects and that the American public would not stand for terrorist trials in civilian courts that are essentially in their own backyards.50 Those opposed to limiting terror suspects to military
45. See Gareth Peirce, Americas Non-Compliance: The Case Against Extradition, 32 LONDON REV. BOOKS 9 (2010), available at http://www.lrb.co.uk/v32/n09/garethpeirce/americas-non-compliance. 46. See, e.g., Al-Fawwaz, [2009] EWHC (Admin.) at 97; Al-Moayad, 44 Eur. Ct. H.R. at 13. 47. See, e.g., Al-Fawwaz, [2009] EWHC (Admin.) at 97. 48. See Military Commissions, N.Y. TIMES (May 4, 2012), http://topics.nytimes.com/top/reference/timestopics/subjects/d/detainees/military_commis sions/index.html. 49. 548 U.S. 557, 560 (2006) (holding military commissions lack the power to proceed because [their] structures and procedures violate both the [Uniform Code of Military Justice] and the . . . Geneva Conventions.). See also Carlissa Carson, Yes We Can Revise the Current Military Commission System, but Why?, 25 CONN. J. INTL L. 389, 389 (2010). 50. See, e.g., Julian E. Barnes, Sen. Ayotte Keeps Fighting for Military Trials for POST, Oct. 21, 2011, Terror Suspects, WASH. http://blogs.wsj.com/washwire/2011/10/21/sen-ayotte-keeps-fighting-for-military-trialsfor-terror-suspects/.

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tribunals encompassed a wide variety of groups including law enforcement officials, human rights advocates, academics, and legal professionals.51 Law enforcement argued primarily that such a limitation would burden the United States unnecessarily in the fight against terrorism; a fight that should use all available assets, including the FBI and intelligence agencies.52 Human rights advocates, academics, and legal professionals argued that in fighting the war on terror, it was critical the United States abide by its long-standing commitments to due process of law and to international humanitarian law, such as the Geneva Conventions.53 In 2009, President Barack Obama signed into law a revised version of the MCA intended to address concerns that the 2006 MCA ran afoul of the Geneva Conventions and the U.S. Constitution.54 However, even with these revisions, the 2009 MCA failed to bring the military tribunal system into compliance with international human rights law.55 For instance, the 2009 MCA did nothing to revise the controversial Section 7 of the 2006 MCA, which means Section 7 continues to strip the federal court system of its capacity to review petitions for writs of habeas corpus.56 Unsatisfied that the 2006 and 2009 MCAs went far enough, and despite the U.S. Supreme Courts ruling in Hamdan, some conservative members of Congress continued to fight to limit trials of terror suspects exclusively to military tribunals, thereby cutting the judiciary entirely out of the terror suspect trial loop.57 Meanwhile, the federal courts spent the
51. See, e.g., Restoring Habeas Corpus Rights Eliminated by the Military Commissions Act, U. CHI. FAC. BLOG (Mar. 5, 2007), http://uchicagolaw.typepad.com/faculty/2007/03/restoring_habea.html; Charlie Savage & Scott Shane, Experts Urge Keeping Two Options for Terror Trials, N.Y. TIMES (Mar. 8, 2010), http://www.nytimes.com/2010/03/09/us/politics/09terror.html; FBI Director Criticizes Bill Requiring Suspected Terrorists to Be Held By Military, FOX NEWS.COM, (Nov. 29, 2011), http://www.foxnews.com/politics/2011/11/29/fbi-director-criticizes-billrequiring-suspected-terrorists-to-be-held-by/. 52. Josh Meyer, FBI Planning a Bigger Role in Terrorism Fight, L.A. TIMES (May 28, 2009), http://articles.latimes.com/2009/may/28/nation/na-fbi28. 53. Carson, supra note 49, at 395. See also Stephen I. Vladeck, The Laws of War as a Constitutional Limit on Military Jurisdiction, 4 J. NATL SECURITY L. & POLY 295 (2010); Myth vs. Fact: Trying Terror Suspects in Federal Courts, http://www.humanrightsfirst.org/wpHUMANRIGHTSFIRST.ORG, content/uploads/pdf/USLS-Fact-Sheet-Federal_Court_Myth_vs_Fact.pdf (last visited Oct. 17, 2012). 54. Carson, supra note 49, at 390. 55. Id. 56. Id. 57. See, e.g., Barnes, supra note 50; see also Mason C. Clutter, Guantanamo: Ten Years After 9/11, 38 HUMAN RIGHTS 2, 2 (2011).

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past decade successfully trying and convicting hundreds of suspects,58 perhaps demonstrating the irrational fear of the pro-military tribunal advocates that those who have their day in court may not be convicted. In addition to these convictions, the Supreme Court granted certiorari to four Guantanamo cases, subsequently finding in favor of the detainees,59 thereby demonstrating the full range of the federal court system. On December 31, 2011, these failed attempts to limit trials to military tribunals finally met measured success when President Obama signed the NDAA into law.60 Subtitle D of the NDAA, entitled Counterterrorism includes long-sought-after provisions designed to limit terror suspect trials to military tribunals, effectively by-passing the federal court system.61 In particular, Sections 1021 and 1022 address the authority and action required by the U.S. military to detain terror suspects indefinitely pending disposition under the law of war.62 Even with the success of passage, these provisions were modified enough from their original hard-lined proposals to result in merely codifying existing practices under the 2001 Authorization for Use of Military Force (AUMF) and the 2006 and 2009 MCAs.63 As this Note reveals, these modifications are crucial because they allow the United States to continue to provide assurances necessary to secure the extradition of known terrorists. Viewed another way, this codification greatly hampers both federal law enforcement and the Obama Administration in their respective roles in the fight against terrorism, making it more difficult for the United States to treat terror suspects on a case-by-case basis. In order to bring some of the most sought-after terrorists to justice, the United States must continue to provide and uphold assurances to her European allies that the terror suspects being extradited to the United States will not be subjected to inhuman or degrading treatment and will be given a fair and impartial trial. Without these assurances, the U.K. and Europe will not likely
58. Brian C. McComas, Article III by Default: Constitutional Requirements for the Capital Prosecution of Unprivileged Enemy Belligerents, 44 U.S.F. L. REV. 979, 1004 (2010) (arguing in favor of federal trials as opposed to military commissions due in large part to the success of the federal courts in obtaining convictions, and the inability of military commissions to procure a constitutionally sound capital sentence). 59. Clutter, supra note 57, at 2. 60. H.R. Res. 1540, 112th Cong. (2011) (enacted). 61. Id. 62. Id. 63. Carl Levin, U.S. Senator, Senate Floor Speech on the Detainee Provision in the Defense Authorization Bill (Nov. 18, 2011), available at http://www.levin.senate.gov/newsroom/speeches/speech/senate-floor-speech-on-thedetainee-provision-in-the-defense-authorization-bill [hereinafter Senate Floor Speech].

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extradite the currently detained high-value terror suspects to the United States. 1. The Procedural Shortcomings Amount to a Lack of Due Process, and the 2009 MCA Falls Short in Correcting Deficiencies As mentioned earlier, the Obama Administration sought many changes to the highly criticized 2006 MCA. But even with the 2009 modifications, the use of military tribunals under the MCA and AUMF still fails to meet international human rights standards for a fair and impartial trial, most notably because of the lack of independence and impartiality.64 The importance of a tribunal being independent and
64. Carson, supra note 49, at 398-402. The US signed and ratified the International Covenant on Civil and Political Rights [(ICCPR)]. Article 9(4) of the Covenant requires that persons detained be entitled to proceedings before a court to determine the lawfulness of their detention. When considering the USs compliance with the ICCPR, in 2006, the United Nations (UN) Human Rights Committee noted its concern that Combatant Status Review Tribunals [(CSRT)] do not offer the required safeguards of due process because CSRTs lack independence from the Executive and the Army. . . . The CSRT process of review does not meet the standards set forth in Article 9(4) of the ICCPR, nor does the process meet the requirements of other international treaties and customary law . . . A military commission suffers from similar deficiencies. First, a military judge presides over a military commission. Military judges certainly are not impartial in the same sense as judges presiding over Article III courts because military judges are actively involved in the military and, therefore, the War on Terror. The influence of the President, who ultimately governs a CSRTs process and a military commission, strips the proceedings of any potential independence or impartiality. Specifically, Ex Parte Quirin and its history provide a clear example of the undue Executive influence and bias that can affect military commissions during times of war. . . . The MCA . . . provides for limited review of current military tribunals. Limited review is available only for those wishing to have their CSRT hearing or military commission proceeding questioned. The US District of Columbia Circuit Court (DC Circuit Court) has jurisdiction to review status determinations of the CSRT. But, essentially, the Court may only review whether the CSRT adhered to its own procedures, as specified by Executive Branch personnel and the Secretary of Defense. And, the DC Circuit Court is basically only allowed to question whether the military commission adhered to its own standards and procedures. With respect to military commission sentences, a detainee must first appeal to the convening authority (the authority that must approve CSRT decisions), and then to the US Court of Military Commission Review before appealing to the DC Circuit Court. Given the limited nature of the review set forth by the Executive, it is as if the President is stating that he wishes to detain and try individuals without the interference of the Judicial Branch. This, in effect, broadens the role of the President in both CSRTs and military commissions. And, impartiality cannot be expected given that the President ordered status determinations via CSRTs and

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impartial is such that it requires that judges be both de facto impartial and independent as well as appear to be impartial and independent.65 Two more glaring deficiencies in military tribunals include the lack of the presumption of innocence and denial of access to the writ of habeas corpus. In Combatant Status Review Tribunals (CSRT), which are precursors to a detainees trial by military commission, instead of a presumption of innocence favoring the defendant, there is a rebuttable presumption in favor of the governments evidence.66 CSRTs provide a rebuttable presumption that the governments evidence submitted to determine whether the detainee is an enemy combatant is genuine and accurate.67 To date, detained persons held in the United States have relied on habeas corpus to show that their detention is not in accord with due process,68 but this important check still does not exist for detainees held under U.S. control outside of the United States.69 Other procedural deficiencies with the military commission process include deprivation of the right to counsel (particularly in the beginning stages), the right to be informed (with most restrictions to information surrounding classified information, with classification being determined by the prosecution), the right to be present (the prosecution may exclude the detainee from his own hearing for reasons of national security, as determined by the prosecution), the requirement for equality (detainees are usually denied requests to call witnesses and in 89% of the tribunals, no evidence whatsoever was presented on the detainees behalf), and the admittance of coerced evidence.70 The 2009 MCA made slight improvements to some of these deficiencies by stating that the defense shall have a reasonable opportunity to obtain witnesses and evidence, and by entirely barring the use of statements obtained through cruel, inhuman or degrading treatment.71 However, the new witness and evidence requirements of the 2009 MCA fall short of meeting the requirements of equal opportunity among the parties. In addition, the bar to improperly obtained statements
trials via military commissions and, at the same time, the Executive Branch essentially determines what the procedures and review of those tribunals will be. Id. 65. CURTIS F.J. DOEBBLER, INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS LAW 110 (2006) (emphasis added). 66. Carson, supra note 49, at 405. 67. Id. 68. Id. at 407 (referring to Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004)). 69. Id. (citing Boumediene v. Bush, 553 U.S. 723, 727 (2008)). 70. Id. at 402-05. 71. Id.

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does not apply to former CSRTs.72 Ensuring due process, access to counsel, and access to all proceedings and all evidence are critical guarantees that must be provided to offer a fair trial.73 As it stands, military commissions, despite some marked improvements, are not likely to meet the standards necessary to establish the right to a fair trial as set forth in Article 6 of the Convention. 2. European Court Insight on Article 6 Compliance What are the expectations of the European Court relative to Article 6 compliance? In twenty-two years of jurisprudence handed down from the European Court since Soering, the court never found an expulsion, until 2012, that violated Article 6 despite the claims repeated assertion.74 As Soering established, the European Court demands a showing of a real risk of a flagrant denial of justice to invoke a claim under Article 6.75 This means that the claimant must meet a higher burden under Article 6 than Article 3; but in assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases.76 The court stated that the Article 6 test is a stringent test of unfairness and that a flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself.77 In defining flagrant denial of justice, the court noted that it is: [S]ynonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the Court has nonetheless indicated that certain forms of unfairness could amount to a flagrant denial of justice. These have included: conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge;
72. Carson, supra note 49, at 402-05. 73. See generally Niki Kuckes, Civil Due Process, Criminal Due Process, 25 YALE L. & POLY REV. 1, 5-6 (2006). 74. Othman (Abu Qatada) v. United Kingdom, App. No. 8139/09, Eur. Ct. H.R. 260 (Jan. 17, 2012), available at http://www.unhcr.org/refworld/pdfid/4f169dc62.pdf. 75. Id. at 258. 76. Id. at 261. 77. Id. at 260.

2012]

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On January 17, 2012 in Othman (Abu Qatada), the court determined that evidence obtained by torture would amount to a flagrant denial of justice invoking Article 6.79 The court went further to state that similar considerations may apply in a case that presented evidence obtained by other forms of ill-treatment that fall short of torture as well.80 In addition to the guidelines for Article 6 that Othman now provides, the European Court previously made clear that the guarantees of a right to a fair trial apply to all types of judicial proceedings, even those deemed administrative.81 Moreover, the court has stated that special proceedings, such as military court-martial, may be subject to Article 6 scrutiny because of the serious criminal nature of the crime with which the defendant had been accused.82 Thus, it is safe to assume that military tribunals, as well as their administrative precursors, CSRTs, are very likely to amount to a flagrant denial of justice under Article 6. III. ANALYSIS OF HOW THE NDAA AFFECTS EXTRADITION Understanding how the European Court views Article 6 compliance and the current perceptions of the U.S. military tribunal system, one can surmise that the European Court is likely to block extradition if a suspect will face trials in a military tribunal. Current cases demonstrate how
78. Id. at 259-60 (internal citations omitted). 79. Id. at 264. [F]undamentally, no legal system based upon the rule of law can countenance the admission of evidence however reliable which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Id. 80. Othman, Eur. Ct. H.R. at 267. 81. DOEBBLER, supra note 65, at 108. 82. Id. at 109 (citing Mills v. United Kingdom, App. No. 35685/97, Eur. Ct. H.R. 20 (2001)).

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terror suspects have successfully employed Article 3 to deter extradition, and forecast the future use of Article 6.83 These cases indicate that it would be wise for the United States to continue to grant assurances that terror suspects will not be at risk of the death penalty, military detention, or trial by military commission. How the U.S. government interprets and applies the language of the NDAA, specifically Sections 1021 and 1022,84 will prove pivotal in the fight to win extradition of these known terror suspects and ultimately bring them to justice. A. Recent Extradition Cases Recent cases of terror suspects invoking Article 3 to fight extradition to the United States exemplify how the European Court may respond to Article 6 claims. These cases provide insight into how the United States should proceed with regard to statutory interpretation of the NDAA, particularly when requesting extradition of terror suspects. 1. Al-Fawwaz, Bary, and Eidarous Have Successfully Thwarted Extradition Since 1998 Using Article 3 Three terror suspects, who were arrested in London in the late 1990s, have successfully fought extradition for over a decade using Article 3. Khalid al-Fawwaz, alleged not only to be an al-Qaeda member, but also one of Osama bin Ladens key lieutenants,85 was indicted for the 1998 U.S. embassy bombings in East Africa which killed 224 people and injured more than 4,500.86 Adel Abdel Bary and Ibrahim Eidarous, both alleged members of Egyptian Islamic Jihad, operated alongside alFawwaz in the London al-Qaeda cell,87 and were subsequently arrested on an extradition warrant following a request from the United States in 1999 for their involvement in the bombings.88 For several years, alFawwaz, Bary, and Eidarous successfully fought extradition through a
83. See discussion infra Part III.A.1. 84. H.R. 1540, 1021-1022, 112th Cong. (2011) (enacted). 85. ONeill, supra note 4; Al-Fawwaz v. Governor of Brixton Prison, [2001] UKHL 69, [2002] 1 A.C. (H.L.) 556, 565-66 (appeal taken from Eng.). 86. Id. See also Governor of Brixton Prison, UKHL 69 at 566-67; United States v. Bin Laden, 92 F. Supp. 2d 225, 230 nn. 9, 11 (S.D.N.Y. 2000); David Rohde, U.S. Says It Has Fingerprints of Embassy Bombing Suspects, CAGE PRISONERS (July 13, 1999), http://www.cageprisoners.com/learn-more/news/item/453-us-says-it-has-fingerprints-ofembassy-bombing-suspects. 87. Governor of Brixton Prison, UKHL 60 at 566-67; ONeill, supra note 4. 88. Two Arrested in U.S. Embassy Bombings, WASH. POST (July 12, 1999), http://www.washingtonpost.com/wpsrv/inatl/longterm/eafricabombing/eafricabombing.htm.

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series of appeals within the U.K.89 In 2008, the U.K. Secretary of State issued warrants for their extradition to the United States, finding that the U.S. government met the prima facie case and provided reliable assurances.90 Thus, the men would not be at risk of the death penalty, indefinite detention or trial by a military commission.91 Eidarous was diagnosed with advanced cancer, put on house-arrest, and subsequently died in 2008.92 In 2009, al-Fawwaz and Bary began their final appeal against the 2008 findings of the Secretary of State, with the British High Court of Justice finding no breach of Article 3, and alFawwazs claim for breach of Article 6 unsubstantiated.93 They soon appealed to the European Court and the case is still pending.94

89. Warren Hoge, A Nation Challenged: In Britain; Court Approves Extraditions In TIMES (Dec. 18, 2001), Bombings of U.S. Embassies, N.Y. http://www.nytimes.com/2001/12/18/world/nation-challenged-britain-court-approvesextraditions-bombings-us-embassies.html. 90. Bary v. Secy of State, [2009] EWHC 2068 (Admin.) [ 7] (Appeal taken from Eng.) (citing diplomatic notes issued by the U.S. Embassy in London, which stated that the United States would neither seek nor carry out the death penalty; that the United States would try the men before a federal court with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges; that the United States would not prosecute the men by a military commission or designate them enemy combatants; and that if either applicant were acquitted or completed any sentence imposed or if the prosecution against them were discontinued, the U.S. authorities would return them to the U.K., if so requested). 91. Ahmad v. United Kingdom, Eur. Ct. H.R. Application nos. 66911/09 and 67354/09, 13 (Dec. 21-22, 2009), available at http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=85053747&skin=hudoc-ccen&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=26387&hig hlight=bary. 92. See Jamie Pyatt & Brian Flynn, Doesnt It Make You Sick: Evil al-Qaida Terrorist SUN, Ibrahim Eidarous Sat Alongside Ordinary Patients, THE http://www.thesun.co.uk/sol/homepage/news/153287/Doesnt-it-make-yousick.html?print=yes (last visited Jan. 5, 2013); Duncan Gardham, U.S. Most Wanted Terrorist Suspect in New Extradition Fight in Britain, CAGE PRISONERS (Feb. 12, 2009), http://www.cageprisoners.com/learn-more/news/item/464-us-most-wanted-terroristsuspect-in-new-extradition-fight-in-britain. 93. Al-Fawwaz, EWHC 2068, at 97-100. In addition to his Article 3 claims, alFawwaz argued under an Article 6 claim that because the United States designated him a global terrorist and placed him on the U.S. Treasury Office of Foreign Assets Controls list of Specially Designated Nationals and Blocked Persons, there was a real risk of a flagrant denial of the right to a fair trial guaranteed by [A]rticle 6 of the ECHR and/or [sic] he might be prejudiced at his trial by reason of his nationality. Id. at 84-86. Al Fawwaz contended that the risk was due to an unnecessary public prejudgment of guilt by the President of the United States. Id. The High Court soundly rejected this claim. Id. at 98(4). 94. See Ahmad v. United Kingdom, Eur. Ct. H.R. Application nos. 66911/09 and 67354/09, 13 (Dec. 21-22, 2009).

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If the United States does not uphold the original assurances provided in 2004, the European Court could deny extradition of these long-soughtafter terror suspects, destroying an otherwise perfect record of honoring the assurances the United States has provided to the U.K. and her European allies. The implications would disrupt the ultimate goal of bringing wanted terrorists to justice. It is imperative that the United States maintain the assurances as provided in 2004 and demonstrate that the new statutory language of the NDAA does not impede the President from dealing with each terror suspect case on an individual basis and as necessary to continue to effectively fight the war on terrorism. 2. Al-Moayad Successfully Extradited Based on Assurances Mohammed Ali Hassan al-Moayad is a Yemeni citizen who was arrested in Germany in January 2003.95 The United States issued a warrant for his arrest and extradition, charging him with providing money, weapons, and communications equipment to terrorist groups, [particularly] al-Qaeda and Hamas[;] with recruiting new members between 1997 and 2003; and with membership [in] the two terrorist organizations.96 By May 2003, the United States provided an assurance that al-Moayad would not be prosecuted in front of a military tribunal or any other extraordinary court.97 Al-Moayad then made three unsuccessful appeals, all of which the court rejected in favor of extradition.98 The Frankfurt Main Court of Appeal stated that there was nothing to warrant the conclusion that [he] might be subjected to unfair criminal proceedings or torture in the United States because the United States assurance provided explicitly for prosecution in ordinary criminal courts.99 Additionally, the court commented that: [W]orrying reports about inhuman treatment of prisoners suspected of terrorism concerned almost without exception prisoners in Guantanamo Bay (Cuba) and Bagram (Afghanistan) and in some third countries. It could not be concluded from existing press reports on the treatment of these prisoners that ordinary criminal proceedings in the United States would not

95. 96. 97. 98. 99.

Al-Moayad v. Germany, 44 Eur. H.R. Rep., at 257 4. Id. at 257 6 & 258 11. Id. at 258 13. Id. at 258-59, 14-16. Id. at 259 14.

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meet the minimum standards of due process of law or would infringe the prohibition on torture.100 On November 14, 2003, Germany authorized extradition; two days later, the U.S. Air Force extradited al-Moayad to the United States.101 A federal court subsequently convicted him and sentenced him in July 2005 to seventy-five years imprisonment for conspiring to support al-Qaeda and Hamas, providing material support for Hamas, and for attempting to materially support al-Qaeda.102 Al-Moayad demonstrates the sending states reliance upon U.S. assurances that a suspect would not be placed in military detention or tried before a military tribunal. It also shows that the European view of the American federal justice system is that it affords due process providing the suspect a fair trial and humane treatment in prison. 3. Assurances are Everything in Extradition These examples demonstrate the pivotal nature of assurances from the United States in gaining extradition of terror suspects. The U.K. cases103 demonstrate the successful use of the appeals process to delay extradition. The German case104 exemplifies the entire process, showing that successful extradition relied on assurances provided and resulted in the successful prosecution of a known terrorist. These examples make the case that assurances must continue to be provided and upheld by the United States, despite the language in the NDAA.105 As written, the statutory language is an impediment, and to overcome this newly erected barrier to extradition, the President must proactively invoke the waiver for national security. B. Sections 1021 and 1022 Contain Language That Include Terror Suspects such as al-Fawwaz, Bary, and al-Moayad The language in Sections 1021 and 1022 of the NDAA106 raises issues which invoke potential Article 3 and Article 6 violations.107 They
100. Id. at 16. 101. Al-Moayad, 44 Eur. H.R. Rep. at 262 24. 102. Id. at 263 28. 103. See, e.g., Al-Fawwaz v. Governor of Brixton Prison, [2001] UKHL 69, [2002] 1 A.C. (H.L.) 556, 565-66 (appeal taken from Eng.). 104. See Al-Moayad, 44 Eur. H.R. Rep. SE22. 105. H.R. 1540, 112th Cong. (2011) (enacted). 106. Id. 1021-1022. 107. See European Convention on Human Rights art. 3 & art. 6, Dec. 10, 1948.

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include: whether the language includes suspects captured in Europe; whether extradited suspects will be indefinitely detained by the military; and whether extradited suspects trials will be statutorily limited to military commissions. In fact, Sections 1021 and 1022 do include the terror suspects currently held in the U.K. and are likely to encompass those who may be captured in the future in the U.K. and Europe as the war against terrorism persists.108 With that in mind, the statutory language provides enough leeway that the United States could continue offering assurances to her European allies that it would not transfer or hold terror suspects in military custody and that they would be tried in regularly constituted civilian courts.109 With the proven success rate of the U.S. judicial system in prosecuting terrorists, this would ensure that these terror suspects are finally brought to justice. A closer look at Sections 1021 and 1022 is in order. 1. Section 1021 Section 1021 codifies the executive branchs authority to detain persons covered by the 2001 [AUMF]110 pending disposition under the law of war.111 The text specifically states in paragraph (d) that it is not intended to limit or expand the authority of the President or the scope of the [AUMF].112 In the Presidents signing statement on the NDAA, he affirmed that the authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then.113 Both the President and Congress agree that this Section codifies existing authority. This provides some assurance that the intent is not to expand or change the current techniques which could prove useful in accomplishing extradition.

108. See H.R. 1540 1021(b), 1022(a)(2). 109. See id. 110. H.R. Res. 1540 (enacted); see Statement by the President on H.R. 1540, OFFICE OF THE PRESS SECY, THE WHITE HOUSE (Dec. 31, 2011) (citing S.J. Res. 23, 107th Cong. (2001) (enacted)), available at http://www.whitehouse.gov/the-pressoffice/2011/12/31/statement-president-hr-1540 [hereinafter Presidential Statement]. 111. See generally Marty Lederman & Steve Vladeck, The NDAA: The Good, the Bad, (Dec. 31, 2011), and the Laws of War-Part I, OPINIO JURIS http://opiniojuris.org/2011/12/31/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/; Benjamin Wittes & Robert Chesney, NDAA FAQ: A Guide for the Perplexed, LAWFARE (Dec. 19, 2011), http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-theperplexed/. 112. H.R. 1540 1021(d). 113. Id.

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In addition to codification of authority, subsections 1021(b) and (c) define covered persons and disposition under law of war.114 Section 1021(b) defines a covered person as anyone who planned, authorized, committed or aided the terrorist attacks of September 11, 2001, and anyone who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.115 Section 1021(c) lays out four alternatives for the disposition under the law of war of a covered person per Section 1021(b).116 These include: (1) Detention under the law of war without trial until the end of the hostilities authorized by the [AUMF]. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the persons country of origin, any other foreign country, or any other foreign entity.117 Section 1021 certainly includes the terror suspects currently held in the U.K., even those arrested before September 11, 2001. The alternatives for disposition under the law of war presumably include a regularly constituted civilian court. Thus, Section 1021 alone does not pose any problems for extradition and allows the United States the ability to provide assurances that it would try terror suspects in a manner consistent with the Conventions notion of a right to a fair trial. 2. Section 1022 While Section 1021 is merely an authorizing provision, Section 1022 is action-oriented.118 It requires the armed forces to detain a covered
114. 115. 116. 117. 118. H.R. 1540 (enacted) 1021(b)-(c). Id. See id. 1021(b)-(c). Id. 1021(c)(1)-(4). See id. 1022.

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person who is captured in the course of hostilities authorized by the [AUMF] in military custody pending disposition under the law of war.119 Section 1022(a)(2)-(3) takes its definitions of covered persons and disposition under law of war from Section 1021(b)-(c).120 Additionally, Section 1022(a)(2) adds to the definition of covered persons, requiring they be found: (A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and (B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.121 Section 1022(a)(4) provides the President the option to submit a waiver to avoid automatic military detainment of covered persons, if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.122 Section 1022(b) states that the requirement for military detention is not applicable to U.S. citizens or lawful resident aliens.123 Thus, Section 1022 presents unique challenges by requiring military detention unless the President invokes the waiver for national security. Moreover, the phrase who is captured in the course of hostilities begs the question of whether persons picked up in Europe, clearly outside the designated combat theater, are included in the military detention requirement of Section 1022. 3. The Implications of Sections 1021 & 1022 on Extradition Under the text of the two provisions, the terror suspects awaiting extradition from the U.K. to the United States fall squarely within the definitions of covered persons under both Sections of the NDAA; however, Section 1022 provides an additional element that may exclude
119. Id. 1022(a)(1) (emphasis added). 120. See H.R. 1540 (enacted) 1022(a)(2)-(3) and 1021(b)-(c). 121. Id. 1022(a)(2)-(3). 122. Id. 1022(a)(4). 123. Id. 1022(b). Section 1022(b)(1) clearly states that Section 1022 does not extend to citizens of the United States. Id. 1022(b)(1). Section 1022(b)(2) is less straightforward, stating the requirement to detain does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States. Id. 1022(b)(2).

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the same suspects from the detention requirements of Section 1022; namely, that in addition to being covered persons, they must also be someone who is captured in the course of hostilities.124 In fact, this additional element under Section 1022 may not apply to many terror suspects picked up in the U.K. or Europe. Consider for instance, Khalid al-Fawwaz, who British law enforcement officials arrested in London at the request of the U.S. government, is not an American citizen, has never been to the United States, Iraq, or Afghanistan, but is a member of alQaeda and has directly supported hostilities from London against the United States.125 While the Senate was debating the NDAA in the fall of 2011, Senator Diane Feinstein questioned the intent of mandatory military custody, stating, it is unwise because our allies will not extradite terror suspects to the United States for interrogation and prosecution or even provide evidence about suspected terrorists if they will be sent to a military brig or Guantanamo.126 Senator Carl Levin, as the chairman of the Armed Services Committee, responded, [t]he provision expressly states that the waiver authority may be used to address these concerns and assure an ally that a suspect will not be held in military custody if transferred to the United States.127 On January 10, 2012, almost two weeks after passage of the NDAA, Senator Levin posted statements that the NDAA provisions in question do not prohibit civilian trials of terror suspects, but in fact specifically authorize[] the use of civilian courts.128 He further stated that both options, trial in civilian court and trial by military commission, would still be available, and that the President retained discretion to choose the best approach given the circumstances of each individual case.129 For example, in the event of extradition from the U.K., the United States would expect that the U.K. would insist on assurances of trial in federal court and not by military tribunal. Thus, Section 1022

124. H.R. Res. 1540 (enacted) 1022(a)(1). 125. See Governor of Brixton Prison, [2001] UKHL 69, at 565-67; see also ONeill, supra note 4. 126. Senate Floor Speech, supra note 63. 127. Id. 128. Carl Levin, The Detainee Provisions in the National Defense Authorization Act for FY 2012 (Jan. 10, 2012), available at http://levin.senate.gov/newsroom/press/release/the-detainee-provisions-in-the-nationaldefense-authorization-act-for-fy-2012. 129. Id. (The executive branch[s] ability to try detainees in civilian court is protected.).

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makes it clear that nothing in the law precludes the Executive Branch from invoking the waiver and providing such assurances.130 C. Assurances that Include a Guarantee of a Right to Fair Trial Are Key to Achieving Extradition On the surface, the new statutory language in the NDAA does not pose any problems to the United States continuing to provide assurances to her European allies that terror suspects will receive humane treatment and a fair trial. But it remains imperative that the current and future administrations understand that affording anything less than a fair trial to these terror suspects in the federal justice system will likely result in terrorists evading justice altogether. The U.S. government should not underestimate its allies doubt regarding the fairness of the military tribunal system, substantiated or not, when evaluating whether to provide and uphold assurances that terror suspects will go to trial in regularly constituted courts to ensure their extradition. It is clear that the European approach to human rights, even as it affects extradition, includes the right to a fair trial that does not include trial by military tribunal.131 As history demonstrates, [t]he right to a fair trial is one of the most litigated of all human rights. It is also perhaps one of the most important because without it a violation of a human right is unlikely to be remedied in domestic procedures.132 Moreover, many international cases have highlighted [t]he importance of independence and impartiality as a key feature of a fair trial.133 For instance, the European Court in Weeks v. United Kingdom noted that the most important, fundamental feature of court is the independence of the executive and of the parties involved.134 As one scholar noted in Lamy v. Belgium, the European Court of Human Rights noted that a fair hearing is not possible when detainees are denied access to those documents in the investigation file which are essential to effectively challenge the lawfulness of [ones]
130. Carl Levin, Summary of Detainee Provisions in Public Law 112-81, the National Defense Authorization Act for Fiscal Year 2012, As Enacted (Jan. 10, 2012) (citing H.R. 1540, 112th Cong. (2011) (enacted)), available at http://levin.senate.gov/newsroom/press/release/summary-of-detainee-provisions-inpublic-law-112-81-the-national-defense-authorization-act-for-fiscal-year-2012-asenacted. 131. See European Convention on Human Rights art. 6, Dec. 10, 1948, 213 U.N.T.S. 221. 132. DOEBBLER, supra note 65, at 110. 133. Carson, supra note 49, at 398-99. 134. Id. at 399 (citing Weeks v. United Kingdom, 10 Eur. Ct. H.R. 293, 315-16 61 (1987)).

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detention.135 And more recently, the U.K. House of Lords stated in A. v. Secretary of State for the Home Department that neither the common law . . . nor international human rights law allows indefinite detention at the behest of the executive, however well-intentioned.136 Thus, the hotly contested and highly publicized deficiencies within the military commission process certainly create, at the minimum, the appearance that a fair trial by an independent and impartial tribunal will be incredibly difficult to obtain for any terror suspect extradited to the United States without the assurance of trial by a civilian court. Additionally, the promise of indefinite detention until the end of hostilities will likely bolster claims of Article 3 violations and add to the likelihood of Article 6 claims. Either one can work to the disadvantage of the United States as it seeks to bring to justice those terror suspects who await extradition from the U.K. and Europe. Thus, the current administration should set a strict plan to execute the waiver in all cases regarding extradition from Americas European allies. Doing so will make the waiver the norm rather than the exception. Regular use of the waiver will override the presumption in favor of military trials that Section 1022137 creates and take the political aspect out of any future executive decision to provide a waiver. IV. CONCLUSION The right to a fair trial is one of the most expansive and complicated of all the human rights protected under international law.138 And even though individual countries bear the burden to defend their citizenry against terrorism, in cases where action is being taken against terrorism, states must ensure that international human rights norms are respected. The foremost role of international human rights in cases involving terrorists is the protection of the accused terrorists human rights.139 With this in mind, the United States should interpret the NDAA to provide assurances to the U.K. and her European allies that all extradited terror suspects will defend their case in regularly constituted courts and will be detained in civilian criminal facilities without threat of the death penalty. In doing so, the United States will signify support for the rule of
135. Id. at 403 (quoting Lamy v. Belgium, 11 Eur. Ct. H.R. 529, 538-39 29 (1989) (internal quotation marks omitted). 136. Id. at 409 (quoting A. v. Secy of State for the Home Dept, [2005] URHL 71 [2004] 2 AC 68, 170 para. 222 (U.K.H.L. 2005). 137. See H.R. 1540 1022 (enacted). 138. DOEBBLER, supra note 65, at 107. 139. Id. at 86.

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law as it seeks to defeat terrorism. Moreover, and perhaps equally important, this continuation of assurances will demonstrate that the United States stands with her allies in the protracted struggle against terrorism. STACY K. HAYES