Treaties Challenge U.S. Sovereignty; Critics Say Two Multilateral Agreements Recently Signed in the Name of Counterterrorism Cooperation Threaten Constitutional Protections of U.S. Citizens

By Rush, Paul | Insight on the News, August 19, 2003 | Go to article overview

Treaties Challenge U.S. Sovereignty; Critics Say Two Multilateral Agreements Recently Signed in the Name of Counterterrorism Cooperation Threaten Constitutional Protections of U.S. Citizens


Rush, Paul, Insight on the News


Byline: Paul Rush, INSIGHT

American bounty hunter Duane Lee "Dog" Chapman found himself behind bars in a Mexican prison in Puerto Vallarta in late June. Though widely hailed at home as a hero for running to ground the convicted serial rapist Andrew Luster, a Max Factor heir, Chapman quickly was arrested by Mexican officials for committing what is considered kidnapping under Mexican law when he captured the fugitive. If convicted, the bounty hunter could have spent as many as eight years in prison. Fortunately for Chapman he was released on bail by Judge Jose de Jesus Pineda, escaped to the United States and then failed to appear for trial. Mexican officials are incensed by his actions and have placed Chapman on their most-wanted list. Ironically, the circumstances that allowed Mexican officials to hold Chapman in the first place also may prevent U.S. officials from extraditing him to Mexico.

The U.S. extradition treaty with Mexico includes a standard "dual-illegality" clause. A feature typical of extradition treaties, dual-illegality clauses limit extraditable offenses to those which are both criminal and punishable by at least one year in prison in both countries. For this reason, notorious U.S. tax evaders such as Marc Rich have sheltered in Switzerland, where tax fraud is not a criminal offense. And, because bounty hunting is not considered an illegal activity in the United States, Chapman remains free and non-extraditable while within U.S. borders. This is no doubt great news for Chapman's 12 children, but what happens if the situations are reversed?

Canada, for instance, steadily has liberalized its marijuana laws; indeed, the most recently proposed Canadian marijuana law calls for nothing more than a small fine for marijuana possession. Canada's extradition treaty with the United States contains a dual-illegality clause. With possession and sale of marijuana decriminalized, and punishable only by a fine, these are nonextraditable offenses regardless of being crimes in the United States.

The subject of sentencing also merits mention. Both countries that border the United States, and nearly all European countries, typically require assurances that the death penalty neither will be sought nor implemented in the cases of individuals being extradited to the United States for crimes that are potential capital offenses here. In the landmark case of Soering v. The United Kingdom, for example, the European Court of Human Rights ruled that the United States could not extradite Jens Soering to the commonwealth of Virginia, which was seeking the death penalty. To do so, said the court, would constitute a violation of Soering's fundamental human rights even though he confessed to murdering his girlfriend's parents in Virginia in 1985 by inflicting "multiple and massive stab and slash wounds to the neck, throat and body." Soering eventually was extradited to Virginia, but only on the guarantee that the death penalty would not be given.

Mexican law even forbids the notion of life sentences or trials in absentia. As such, Mexico will not grant extradition to any country or state seeking to impose a sentence of life imprisonment upon the accused; neither will Mexico allow extradition in cases in which the alleged perpetrator was convicted in his or her absence from the court proceedings.

Interestingly, Luster was tried and sentenced in the United States, in absentia, to 124 years in prison for the drugging and raping of three women, satisfying both of the grounds on which Mexico may refuse extradition. Mexican officials, however, did not permit Luster to fight extradition. Instead, because he had entered Mexico illegally and under a fictitious name, Luster was deported, and no extradition proceedings occurred. Had Luster entered Mexico legally and under his own name, he likely still would be enjoying the protections of Mexican extradition law. Instead, he currently resides at Wasco State Prison in central California, where he is serving his sentence. …

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