[Senate Executive Report 109-19]
[From the U.S. Government Publishing Office]





109th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      109-19

======================================================================



 
EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED 
   KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND (TREATY DOC. 108-23)

                                _______
                                

               September 20, 2006.--Ordered to be printed

                                _______
                                

          Mr. Lugar, from the Committee on Foreign Relations,
                        submitted the following

                              R E P O R T

                   [To accompany Treaty Doc. 108-23]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty between the United States of America and 
the United Kingdom of Great Britain and Northern Ireland, and 
related exchanges of letters, signed at Washington on March 31, 
2003 (Treaty Doc. 108-23) (hereafter the ``Treaty''), having 
considered the same, reports favorably thereon with one 
understanding, two declarations, and three provisos as 
indicated in the resolution of advice and consent, and 
recommends that the Senate give its advice and consent to 
ratification thereof, as set forth in this report and 
accompanying resolution of advice and consent.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................1
 II. Background and Summary...........................................2
III. Implementing Legislation.........................................4
 IV. Committee Action.................................................4
  V. Committee Recommendation and Comments............................5
 VI. Resolution of Advice and Consent to Ratification.................8
VII. Appendix........................................................11

                               I. Purpose

    The United States is currently a party to over 100 
bilateral extradition treaties, including a treaty with the 
United Kingdom (U.K.). The existing treaty was signed in 1972, 
entered into force in 1977, and was amended by a Supplementary 
Treaty that entered into force in 1986. The Treaty, which 
replaces the 1972 treaty, is consistent with modern U.S. 
extradition practices and other U.S. extradition treaties 
approved by the Senate in the last decade and would strengthen 
law enforcement cooperation between our two countries.

                       II. Background and Summary

    Extradition--a legal mechanism for returning a fugitive to 
a country where he faces charges or has already been 
convicted--is a critical law enforcement tool, facilitating the 
prosecution of serious crimes, including terrorism and other 
violent offenses, trafficking in persons, drug offenses, and 
large-scale financial crimes. The United Kingdom is a key law 
enforcement and counterterrorism partner of the United States. 
Recent events, including the foiling of a terrorist plot 
targeting civil aircraft scheduled to fly between the United 
Kingdom and the United States, have underscored the importance 
of this relationship.
    The Treaty was signed in Washington on March 31, 2003, and 
was transmitted to the Senate for advice and consent to 
ratification on April 19, 2004.
    A detailed article-by-article discussion of the Treaty may 
be found in the Letter of Submittal from the Secretary of State 
to the President, which is reprinted in full in Treaty Document 
108-23. A summary of the key provisions of the Treaty is set 
forth below.
    Article 2 of the Treaty contains a modern ``dual 
criminality'' provision defining extraditable offenses as those 
punishable under the laws in both states by deprivation of 
liberty of 1 year or more or by a more severe penalty. This 
type of provision is common in modern extradition treaties, and 
is less restrictive than the existing treaty, which permits 
extradition only for offenses listed in the 1972 treaty, or in 
cases where the offense is considered extraditable under 
domestic U.K. extradition law and is a felony under U.S. law. 
The dual criminality approach in the new Treaty ensures that 
new criminal offenses will be covered as they are criminalized 
by both parties, without a need to constantly amend the Treaty. 
At the same time, it protects against extradition of an 
individual for conduct that would not constitute an offense in 
the United States, such as conduct protected under the first 
amendment of the U.S. Constitution.
    Article 4 of the Treaty addresses political and military 
offenses. Paragraph 1 bars extradition for political offenses; 
the political offense exception is longstanding under U.S. 
extradition practice. Consistent with U.S. policy and practice 
in recent years, paragraph 2 of the article excludes certain 
crimes of violence from being considered political offenses. 
The list of crimes in the Treaty excluded from the political 
offense exception is generally similar to the list set forth in 
the 1986 Supplementary Treaty with the United Kingdom. The 1986 
Supplementary Treaty was the first treaty to so limit the 
political offense exception. Since then, such limitations have 
become common in bilateral and multilateral extradition 
treaties to which the United States is a party, because an 
international norm has emerged that terrorism and other crimes 
of violence are unacceptable as a political tactic.
    In approving this narrowing of the political offense 
exception in 1986, the Senate added a provision to the 
Supplementary Treaty precluding extradition of an individual 
for an offense that was excluded from the political offense 
exception if that person proved to a U.S. court by a 
preponderance of the evidence that the extradition request 
itself was made with a view to try or punish such person on 
account of his race, religion, nationality, or political 
opinions, or that he would be prejudiced at trial or punished, 
detained, or restricted in his personal liberty by reason of 
his race, religion, nationality, or political opinions. No 
other U.S. extradition treaty negotiated before or since that 
time authorizes judicial review of the motivation of a state to 
seek extradition. Rather, all other treaties permit review of 
claims of political motivation to be made by the Secretary of 
State. Article 4, paragraph 3 of the new Treaty prohibits 
extradition where the competent authority of the requested 
state determines that the request was politically motivated, 
and consistent with other U.S. extradition treaties, provides 
that such determinations will be made by the executive branch. 
The determination of a claim of political motivation is 
distinct from the determination of application of the political 
offense exception, which will continue to be made by the U.S. 
judiciary, consistent with U.S. law. The committee has included 
an understanding in the resolution of advice and consent that 
addresses this point (see section V below). Finally, paragraph 
4 provides that a requested state may refuse extradition for 
offenses under military law that are not offenses under 
ordinary criminal law. This type of provision is common to 
extradition treaties; the power to make such decisions is 
assigned to the executive branch.
    Article 6 of the Treaty provides that the decision whether 
to grant an extradition request shall be made without regard to 
any statute of limitations in either state. This provision 
reflects modern U.S. extradition policy that statutes of 
limitations claims are best addressed by the court of 
jurisdiction following surrender. It does not preclude a person 
from raising any available statute of limitations defense in 
that venue.
    Article 8 of the Treaty addresses the documentation 
required in support of extradition requests. Under the current 
treaty, the requesting party must present evidence that would 
justify the committal of the fugitive for trial under the law 
of the requested party. This meant, in practice, that in 
seeking fugitives from the United Kingdom, the United States 
had to present a prima facie case, a requirement that often 
proved to be burdensome. The new Treaty does not set forth a 
specific burden of proof for requests to the United Kingdom. 
Under a domestic U.K. law, the evidentiary standard for 
extradition requests by some countries has been eased to one 
that U.K. officials have described as similar to the U.S. 
standard of probable cause. This lower U.K. standard has been 
applied to United States extradition requests to the United 
Kingdom since January 2004, when the United Kingdom designated 
the United States as eligible for this standard under its 
domestic extradition law in anticipation of U.S. ratification 
of the Treaty. U.S. ratification would ensure continued 
application of the less burdensome standard for the United 
States. For requests made by the United Kingdom to the United 
States, evidence sufficient to meet the probable cause standard 
will still be required, as set forth in article 8(3)(c) of the 
new Treaty and under applicable U.S. case law.
    Article 12 of the Treaty addresses provisional arrests in 
urgent circumstances, and streamlines the process by permitting 
requests to be transmitted directly between the U.S. Department 
of Justice and the U.K. competent authority. The duration of 
provisional arrest permitted under the new Treaty (60 days) is 
identical to the current treaty. The information required to be 
provided in such requests follows the example of treaties 
recently approved by the Senate. It should be emphasized that 
the textual changes in the new Treaty (as compared to the 1972 
treaty) are not intended to effect a substantive change to the 
standard that applies under the existing treaty for securing 
the provisional arrest of an alleged fugitive pending 
extradition. The committee agrees with the Department of 
Justice that the fourth amendment of the U.S. Constitution 
applies to provisional arrests under the 1972 treaty, and under 
the new Treaty. Further, the Department indicated in response 
to committee questioning that it ``does not anticipate any 
substantive change in the type or quantum of evidence that [it] 
submit[s] to our courts in support of a request for issuance of 
a provisional arrest warrant'' under the new article.
    Article 14 of the Treaty permits the requested state to 
temporarily surrender for proceedings in the requesting state a 
person who is being proceeded against or is serving a sentence 
in the requested state. The person is to be kept in custody in 
the requesting state and returned upon completion of the 
proceedings there. This type of temporary surrender provision 
is common in modern extradition treaties and is an important 
improvement over the existing 1972 treaty, which specifically 
requires that extradition be deferred until the conclusion of 
the trial and the full execution of any sentence. The new 
Treaty thus allows for prosecution closer in time to commission 
of the offense, thereby advancing the goal of securing justice. 
Long delays in commencing trial raise the danger that witnesses 
will no longer be available or that their memories will fade.

                     III. Implementing Legislation

    No new implementing legislation is required for the Treaty. 
The Treaty will be implemented consistent with an existing body 
of Federal law, including the provisions of Chapter 209 of 
Title 18, United States Code.

                          IV. Committee Action

    The Committee on Foreign Relations held two public hearings 
on the Treaty, on November 15, 2005, and July 21, 2006, at 
which it received testimony from the Departments of State and 
Justice, and from private sector witnesses, including opponents 
of the Treaty. (Transcripts of these hearings and questions and 
answers for the record may be found in S. Hrg. 109-352 and S. 
Hrg. 109-570, which are forthcoming.) The witnesses who 
testified are as follows:

                           NOVEMBER 15, 2005

Mr. Samuel M. Witten, Deputy Legal Adviser, Department of State
Ms. Mary Ellen Warlow, Director, Office of International 
        Affairs, Criminal Division, Department of Justice

                             JULY 21, 2006

Mr. John J. Meehan, Jr., National President, Ancient Order of 
        Hibernians in America
Dr. Robert C. Linnon, National President, Irish American Unity 
        Conference
Prof. Madeline Morris, Duke University Law School
Mr. Paul J. McNulty, Deputy Attorney General, Department of 
        Justice
Mr. Samuel M. Witten, Deputy Legal Adviser, Department of State


    In addition, the committee invited Professor Francis A. 
Boyle of the University of Illinois College of Law at Urbana-
Champaign to testify at the hearing on July 21, 2006. Professor 
Boyle was unable to attend the hearing because his flight to 
Washington was canceled due to inclement weather, but his 
written testimony was entered into the hearing record.
    On September 7, 2006, the committee considered the Treaty 
and ordered it favorably reported by voice vote with no 
objections and with a quorum present, with the recommendation 
that the Senate give its advice and consent to ratification, 
subject to the understanding, declarations, and provisos 
contained in the resolution of advice and consent.

                V. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
proposed Treaty is in the interest of the United States and 
urges the Senate to act promptly to give advice and consent to 
ratification.
    The committee carefully considered areas of concern raised 
by critics of the Treaty, and has addressed several of these 
issues in the resolution of advice and consent, consistent with 
the underlying international legal obligations of the Treaty. 
The executive branch has reviewed and concurs with each 
understanding, declaration and proviso in the resolution.
    The committee has included in the resolution of advice and 
consent an understanding relating to article 4, paragraphs 3 
and 4 of the Treaty. Paragraph 3 precludes extradition where 
the competent authority of the requested state determines that 
the request was politically motivated. Paragraph 4 provides 
that the competent authority of the requested state may refuse 
extradition for offenses under military law that are not 
offenses under ordinary criminal law. Each paragraph further 
states: ``In the United States, the executive branch is the 
competent authority for the purposes of this Article.'' The 
executive branch confirmed that the parties intended that the 
words ``for the purposes of this article'' apply only to these 
specific paragraphs. The understanding in the resolution of 
ratification sets forth that interpretation, which is binding 
on the executive branch. The understanding also states that the 
quoted sentence in paragraphs 3 and 4 does not alter or affect 
the role of the United States judiciary under U.S. law in 
making certifications of extraditability (under section 3184 of 
Title 18, United States Code), and in determining the 
application of the political offense exception.
    The committee has also included two declarations in the 
resolution of advice and consent. Concerns were expressed in 
the hearing in July 2006 that the Treaty could be used to 
extradite persons from the United States for conduct protected 
by the first amendment of the U.S. Constitution, and that the 
Treaty would remove from the U.S. judiciary the determination 
of extraditability. As noted above in the discussion of article 
2, the dual criminality provisions of that article would not 
permit extradition of persons for conduct protected by the 
first amendment because such conduct would not constitute a 
criminal offense in the United States. Additionally, nothing in 
the Treaty changes U.S. law that requires a judicial 
determination of extraditability--specifically section 3184 of 
title 18 of the United States Code--prior to the surrender of 
the fugitive to the foreign state. The committee determined 
that it would be appropriate to address these concerns by 
including declarations addressing the relationship of the 
Treaty to the U.S. Constitution and relevant U.S. law. The 
first declaration states that nothing in the Treaty requires or 
authorizes legislation or other action by the United States 
that is prohibited by the U.S. Constitution. Although Article 
VI of the U.S. Constitution provides that all treaties made 
shall be the ``supreme Law of the Land,'' the Supreme Court has 
made clear that a treaty cannot violate the Constitution. ``It 
would be manifestly contrary to the objectives of those who 
created the Constitution, as well as those who were responsible 
for the Bill of Rights--let alone alien to our entire 
constitutional history and tradition--to construe Article VI as 
permitting the United States to exercise power under an 
international agreement without observing constitutional 
prohibitions.'' Reid v. Covert, 354 U.S. 1, 17 (1957). This 
declaration reflects that constitutional principle. The second 
declaration states that the Treaty shall be implemented by the 
United States in accordance with the U.S. Constitution and 
relevant Federal law, including the requirement of a judicial 
determination of extraditability that is set forth in title 18 
of the United States Code.
    The committee has included three provisos in the resolution 
of advice and consent. The first proviso clarifies the intent 
of the Treaty. It recognizes that concerns have been expressed 
that the purpose of the Treaty is to seek the extradition of 
individuals involved in offenses relating to the conflict in 
Northern Ireland prior to the Belfast Agreement of April 10, 
1998. Also known as the Good Friday Agreement, the Belfast 
Agreement was a joint effort of governments of the United 
Kingdom and the Republic of Ireland, and the major political 
parties in Northern Ireland, to resolve the decades-long 
conflict by formulating a means for local government based on a 
power-sharing arrangement. As part of the peace process, the 
Provisional Irish Republican Army agreed to a cease-fire in the 
1990s, and last year declared an end to the armed campaign. In 
connection with the Belfast Agreement, the Government of the 
United Kingdom provided a mechanism for early release for 
individuals convicted of terrorist-related offenses committed 
before April 10, 1998. In 2000, the U.K. Government announced 
that it would no longer pursue extradition of individuals who 
appear to qualify for the early release plan under the Belfast 
Agreement, and it has since restated and expanded upon this 
position, most recently in September 2006.
    In light of these developments, the proviso makes clear the 
Senate's understanding that the purpose of the Treaty is to 
strengthen law enforcement cooperation between the United 
States and the United Kingdom by modernizing the extradition 
process for all serious offenses and that it is not intended to 
reopen issues addressed in the Belfast Agreement or to impede 
any further efforts to resolve the conflict in Northern 
Ireland. In this regard, the Senate notes with approval the 
September 29, 2000, statement of the United Kingdom Secretary 
of State for Northern Ireland that the United Kingdom does not 
intend to seek the extradition of individuals who appear to 
qualify for early release under the Belfast Agreement, as well 
as a subsequent letter from the U.K. Home Secretary dated March 
2006, and an exchange of letters between the U.K. Secretary of 
State for Northern Ireland and the U.S. Attorney General dated 
September 2006, reconfirming this position and the intent of 
the United Kingdom to ``address the anomalous position of those 
suspected but not yet convicted of terrorism-related offenses 
committed before the Belfast Agreement.'' The full text of the 
September 2000 statement and the 2006 letters are printed in 
the Appendix to this report.
    The second proviso addresses a provision of recently 
enacted United Kingdom domestic law that may allow for the 
retrial in the United Kingdom, in certain limited 
circumstances, of an individual who has been previously tried 
and acquitted in that country in a manner that would not be 
permitted in the United States under the Double Jeopardy clause 
of the U.S. Constitution. Although U.S. courts have indicated 
that extradition in such contexts is not barred, and although 
retrial or prosecution appeal after acquittal is often 
permitted in European countries with civil law traditions, it 
is uncommon in the Anglo-American system. Accordingly, the 
committee sought to call attention to the provision. The 
proviso notes that, although the Treaty does not address this 
situation, it is the understanding of the Senate that under 
U.S. law and practice a person sought for extradition can 
present a claim to the Secretary of State that an aspect of 
foreign law that may permit retrial may result in an unfairness 
that the Secretary could conclude warrants denial of the 
extradition request. It urges the Secretary to carefully review 
any such claims involving a request for extradition in the rare 
case where this provision of United Kingdom domestic law is 
implicated.
    In order to facilitate committee oversight of U.S. 
implementation of the Treaty, the third proviso calls on the 
Secretary of State to submit to the committee, within 1 year of 
entry into force of the Treaty and annually thereafter for the 
next 4 years, a report containing specified information 
regarding implementation. The report is to contain, for each 
12-month period: The number of persons arrested in the United 
States pursuant to requests from the United Kingdom under the 
Treaty, including the number of persons subject to provisional 
arrest; a summary description of the alleged conduct for which 
the United Kingdom is seeking extradition; the number of 
requests granted; the number of requests denied, including 
whether the request was denied as a result of a judicial 
decision or a decision of the Secretary of State; the number of 
instances the person sought for extradition made a claim to the 
Secretary of State of political motivation, unjustifiable 
delay, or retrial after acquittal and whether such extradition 
requests were denied or granted; and the number of instances 
the Secretary granted a request under article 18(1)(c) to waive 
the rule of specialty.

          VI. Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO UNDERSTANDING, 
                    DECLARATIONS, AND PROVISOS

    The Senate advises and consents to the ratification of the 
Extradition Treaty between the United States of America and the 
United Kingdom of Great Britain and Northern Ireland, and 
related exchanges of letters, signed at Washington on March 31, 
2003 (hereinafter in this resolution referred to as the 
``Treaty'') (Treaty Doc. 108-23), subject to the understanding 
in section 2, the declarations in section 3, and the provisos 
in section 4.

SECTION 2. UNDERSTANDING

    The advice and consent of the Senate under section 1 is 
subject to the following understanding:

          Under United States law, a United States judge makes 
        a certification of extraditability of a fugitive to the 
        Secretary of State. In the process of making such 
        certification, a United States judge also makes 
        determinations regarding the application of the 
        political offense exception. Accordingly, the United 
        States of America understands that the statement in 
        paragraphs 3 and 4 of Article 4 that ``in the United 
        States, the executive branch is the competent authority 
        for the purposes of this Article'' applies only to 
        those specific paragraphs of Article 4, and does not 
        alter or affect the role of the United States judiciary 
        in making certifications of extraditability or 
        determinations of the application of the political 
        offense exception.

SECTION 3. DECLARATIONS

    The advice and consent of the Senate under section 1 is 
subject to the following declarations:
    (1) Nothing in the Treaty requires or authorizes 
legislation or other action by the United States of America 
that is prohibited by the Constitution of the United States.
    (2) The Treaty shall be implemented by the United States in 
accordance with the Constitution of the United States and 
relevant federal law, including the requirement of a judicial 
determination of extraditability that is set forth in Title 18 
of the United States Code.

SECTION 4. PROVISOS

    The advice and consent of the Senate under section 1 is 
subject to the following provisos:
    (1)(A) The Senate is aware that concerns have been 
expressed that the purpose of the Treaty is to seek the 
extradition of individuals involved in offenses relating to the 
conflict in Northern Ireland prior to the Belfast Agreement of 
April 10, 1998. The Senate understands that the purpose of the 
Treaty is to strengthen law enforcement cooperation between the 
United States and the United Kingdom by modernizing the 
extradition process for all serious offenses and that the 
Treaty is not intended to reopen issues addressed in the 
Belfast Agreement, or to impede any further efforts to resolve 
the conflict in Northern Ireland.
    (B) Accordingly, the Senate notes with approval--
          (i) the statement of the United Kingdom Secretary of 
        State for Northern Ireland, made on September 29, 2000, 
        that the United Kingdom does not intend to seek the 
        extradition of individuals who appear to qualify for 
        early release under the Belfast Agreement;
          (ii) the letter from the United Kingdom Home 
        Secretary to the United States Attorney General in 
        March 2006, emphasizing that the ``new treaty does not 
        change this position in any way,'' and making clear 
        that the United Kingdom ``want[s] to address the 
        anomalous position of those suspected but not yet 
        convicted of terrorism-related offences committed 
        before the Belfast Agreement''; and
          (iii) that these policies were reconfirmed in an 
        exchange of letters between the United Kingdom 
        Secretary of State for Northern Ireland and the United 
        States Attorney General in September 2006.
    (2) The Senate notes that, as in other recent United States 
extradition treaties, the Treaty does not address the situation 
where the fugitive is sought for trial on an offense for which 
he had previously been acquitted in the Requesting State. The 
Senate further notes that a United Kingdom domestic law may 
allow for the retrial in the United Kingdom, in certain limited 
circumstances, of an individual who has previously been tried 
and acquitted in that country. In this regard, the Senate 
understands that under U.S. law and practice a person sought 
for extradition can present a claim to the Secretary of State 
that an aspect of foreign law that may permit retrial may 
result in an unfairness that the Secretary could conclude 
warrants denial of the extradition request. The Senate urges 
the Secretary of State to review carefully any such claims made 
involving a request for extradition that implicates this 
provision of United Kingdom domestic law.
    (3) Not later than one year after entry into force of the 
Treaty, and annually thereafter for a period of four additional 
years, the Secretary of State shall submit to the Committee on 
Foreign Relations of the Senate a report setting forth the 
following information with respect to the implementation of the 
Treaty in the previous twelve months:
          (A) the number of persons arrested in the United 
        States pursuant to requests from the United Kingdom 
        under the Treaty, including the number of persons 
        subject to provisional arrest; and a summary 
        description of the alleged conduct for which the United 
        Kingdom is seeking extradition;
          (B) the number of extradition requests granted; and 
        the number of extradition requests denied, including 
        whether the request was denied as a result of a 
        judicial decision or a decision of the Secretary of 
        State;
          (C) the number of instances the person sought for 
        extradition made a claim to the Secretary of State of 
        political motivation, unjustifiable delay, or retrial 
        after acquittal and whether such extradition requests 
        were denied or granted; and
          (D) the number of instances the Secretary granted a 
        request under Article 18(1)(c).
                             VII. APPENDIX

                              ----------                              

                                               Home Office,
                                   London SW1P 4DF, March 31, 2006.
Alberto Gonzales,
Attorney General, U.S. Department of Justice,
Washington, DC.
    Dear Al: At our meeting on 6 March I said that I would write to 
clarify the UK Government's position relating to the extradition of 
individuals wanted or convicted of terrorist offences associated with 
the Troubles in Northern Ireland who are currently in the United 
States.
    In September 2000 the Government decided that it was no longer 
proportionate or in the public interest to seek the extradition of 
individuals convicted of terrorist offences committed prior to 10th 
April 1998, the date of the Belfast Agreement. The new treaty does not 
change this position in any way.
    We have also made it clear that we want to address the anomalous 
position of those suspected but not yet convicted of terrorism-related 
offences committed before then. Had these individuals been convicted at 
the time of their offences they would, by now, have been able to apply 
for early release and so find themselves in a similar position to those 
already covered by the Agreement. Unfortunately, the legislation that 
would have resolved this anomaly had to be withdrawn due to a lack of 
cross-party support.
    However, the British Government remains keen to make progress on 
this and I can assure you that when the new treaty was being 
negotiated, there was no intention on our part to make it easier to 
target these people, whose position we accept to be anomalous.
                                            Charles Clarke,
                                                    Home Secretary.
                                 ______
                                 
                                   Northern Ireland Office,
                                Belfast BT4 3TT, September 4, 2006.
Alberto Gonzales,
Attorney General, U.S. Department of Justice,
Washington, DC.
    Dear Attorney General: I am writing to reiterate the UK 
Government's position relating to the extradition of individuals from 
the United States in relation to terrorist offences committed during 
the Troubles in Northern Ireland.
    In September 2000, the Government decided that it was no longer 
proportionate or in the public interest to seek the extradition of 
individuals convicted of terrorist offences prior to 10th April 1998, 
``who appear to qualify for early release under the Good Friday 
Agreement scheme, and who would, on making a successful application to 
the Sentence Review Commissioners, have little if any of their original 
prison sentence to serve.'' I attach a copy of the statement made by 
the then Secretary of State for Northern Ireland when this decision was 
announced. I know that the former Home Secretary reiterated this when 
he wrote to you in March this year. I can confirm, on behalf of the UK 
Government, that this remains the case.
    We have also made it clear that we want to address the anomalous 
position of those suspected but not yet convicted of terrorism-related 
offences committed before the Belfast Agreement. Had these individuals 
been convicted at the time of their offences they would, by now, have 
been able to apply for early release and so find themselves in a 
similar position to those already covered by the Agreement. The UK 
Government introduced legislation to resolve this anomaly last year. 
Unfortunately, that legislation had to be withdrawn due to a lack of 
cross-party support. However, the UK Government continues to accept 
that the position of these people is anomalous and I can assure you, as 
the former Home Secretary did in March, that when the new treaty was 
being negotiated there was no intention on our part to make it easier 
to target them. I attach a short note which explains in more detail the 
provisions of the early release scheme and the position of various 
groups of people.
    It remains a matter of great importance to the UK Government that 
the extradition treaty should be ratified by the United States, so that 
its benefits can be fully realised. This is not because of any agenda 
related to Northern Ireland, but because of the improvements that the 
updated treaty will bring to the extradition process in general in both 
countries. My colleague, John Reid, the Home Secretary, has seen this 
letter and agrees fully with its contents.
    I am copying this letter to Senator Lugar. Both you and he are 
welcome to share it with other members of the Senate if that would be 
helpful.

                                The Rt. Hon. Peter Hain MP,
                           Secretary of State for Northern Ireland.
Enclosures.

           US-UK Extradition Treaty--Northern Ireland Issues

Political Background
    The political and security situation in Northern Ireland has been 
transformed following the 1998 Good Friday Agreement. A huge amount of 
progress has been made since then, including the historic statement 
from the Provisional IRA in July 2005, in which they made clear that 
their armed campaign was over. The focus in Northern Ireland today is 
on restoring devolved Government and continuing to build a prosperous 
and peaceful society.
Good Friday Agreement and Early Release Scheme
    As part of the Good Friday Agreement (GFA), individuals convicted 
of terrorist-related offences committed before 1998 were able to apply 
for early release after serving only two years of their sentences. Over 
400 prisoners have been released on license under this scheme. The 
license requires that individuals do not become re-engaged in terrorism 
or serious crime. Those released include many members of the 
Provisional IRA, which has maintained a ceasefire during this time. The 
Early Release Scheme was a very difficult part of the Good Friday 
Agreement for many people to accept, but it demonstrated the UK 
Government's commitment to moving forward with the peace process.
    The Early Release Scheme is part of UK law and remains in force. 
Any individuals who are convicted of qualifying, pre-1998 offences in 
the future, including any individuals extradited to the UK, will be 
able to apply for the scheme.
Individuals convicted of pre-GFA offences
    In 2000, the UK Government announced that it would no longer pursue 
the extradition of individuals convicted of pre-1998 offences who had 
escaped from prison and who would, if they returned to Northern Ireland 
and successfully applied for early release, have little if any of their 
time left to serve. That remains the position.
Individuals suspected of pre-GFA offences (``on the runs'')
    Whilst the Early Release Scheme addressed the situation of 
individuals who had been convicted of past offences, there remained an 
anomaly in relation to individuals suspected of past offences, who had 
gone ``on the run'' before they were tried. The British Government 
accepts that these individuals are in an anomalous position since, if 
they had been convicted before 1998 they could have been released by 
now under the terms of the Good Friday Agreement.
    In 2003, the British Government therefore published proposals for a 
scheme which would have allowed suspects ``on the run'' to be tried in 
their absence and to return to Northern Ireland without arrest or 
imprisonment. Following the IRA's statement that its armed campaign was 
over in July 2005, legislation was introduced to implement that 
commitment.
    Agreement could not be reached on that legislation during its 
passage through Parliament and it was withdrawn in January 2006. The 
British Government is currently reflecting on the way forward. However, 
as the 2003 proposals and the subsequent legislation demonstrate, the 
British Government is committed to addressing these cases in a way 
which resolves the anomaly.
    In the absence of any change in the law, decisions on whether to 
seek the extradition of suspects ``on the run'' for pre-1998 offences 
are still taken by the prosecuting authorities, in line with the legal 
obligations on them, as part of the normal criminal justice process. 
But, as the UK Government's decision in 2000 not to pursue the 
extradition of convicted fugitives (including in the United States) who 
would qualify for early release under the GFA illustrates, there is no 
``political'' agenda to pursue the extradition and trial of these 
people. And any suspects who were extradited and subsequently convicted 
would be able to apply for early release after two years, under the 
terms of the Good Friday Agreement.
Other individuals
    Anyone convicted of an offence unconnected with terrorism, or an 
offence committed after the Good Friday Agreement, will not be eligible 
for the Early Release Scheme. The UK law enforcement authorities 
continue to seek the extradition of such individuals in line with UK 
law.
Outstanding warrants
    When Home Office Minister Baroness Scotland visited the US, she 
explained that there were currently no outstanding warrants for the 
extradition of individuals from the US to Northern Ireland.

                                Secretary of State,
                                   Northern Ireland Office,
                                                September 29, 2000.

   Statement by Peter Mandelson on Extradition of Convicted Fugitives

    On 28 July, all remaining prisoners eligible under the early 
release scheme who had completed 2 years of their sentences were 
released as envisaged in the Good Friday Agreement.
    The completion of these remaining releases has implications for a 
number of people who were sentenced to imprisonment for offences 
committed before the Good Friday Agreement, but who failed to complete 
these sentences. In most cases those concerned escaped from custody and 
fled to other countries up to 20 years ago. In many cases, extradition 
proceedings were initiated and in some of these the government is now 
being pressed by Court authorities to clarify its position.
    Whether to pursue an extradition request depends on the public 
interest at stake, including the remaining sentence which the fugitive 
would stand to serve if he or she were returned. It is clearly 
anomalous to pursue the extradition of people who appear to qualify for 
early release under the Good Friday Agreement scheme, and who would, on 
making a successful application to the Sentence Review Commissioners, 
have little if any of their original prison sentence to serve.
    In view of this and the time that has elapsed, I do not believe 
that it would now be proportionate or in the public interest to 
continue to pursue such cases.
    If these individuals wish to benefit from the early release scheme, 
they will be able to return to Northern Ireland and make an application 
to the Sentence Review Commissioners. If this is granted, normal 
licence conditions, including liability to recall to prison, will 
apply. The decision has no implications for the prosecution of other 
offences where sufficient evidence exists. It is not an amnesty.
    As with the rest of the early release programme, I do not under-
estimate the hurt this decision may cause the victims of those whose 
extradition will no longer be pursued, and the onus it places on all of 
us to ensure that the Good Friday Agreement does result in a permanent 
peace in which there are no more victims.
                                 ______
                                 
                    Office of the Attorney General,
                                     Department of Justice,
                                 Washington, DC, September 5, 2006.
The Rt. Hon. Peter Hain,
Secretary of State for Northern Ireland,
Northern Ireland Office, London SW1P 4PN.
    Dear Secretary Hain: I am writing in response to your recent letter 
regarding the 2003 United States-United Kingdom extradition treaty.
    I appreciate your reconfirmation of the position of the Government 
of the United Kingdom (originally taken in September 2000) that it is 
``no longer proportionate or in the public interest to seek the 
extradition of individuals convicted of terrorist offences prior to 
10th April 1998, `who appear to qualify for early release under the 
Good Friday Agreement scheme, and who would, on making a successful 
application to the Sentence Review Commissioners, have little if any of 
their original prison sentence to serve.' '' Additionally, you have 
reconfirmed that it was not the intention of your Government, in 
negotiating this Treaty, to make it easier for the UK to seek 
extradition of individuals suspected of committing terrorist offenses 
in Northern Ireland prior to April 10, 1998.
    Please accept this letter as my acknowledgement of your 
Government's official position and our mutual understanding of these 
matters. I believe that we share the view that the 2003 Treaty is 
critical to our mutual security in this age of global terrorism and 
transnational crime. Accordingly, the Bush Administration has made it a 
priority to seek the Senate's advice and consent to ratification of 
this Treaty. To that end, I will ask the Senate Foreign Relations 
Committee to include your letter, and this reply, in the official 
record of the Committee's consideration of the Treaty.
            Sincerely,
                                       Alberto R. Gonzales,
                                                  Attorney General.

                                 


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