Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Dusting Off the U.S.-Iraq Extradition Treaty?

Ashley Deeks
Friday, May 11, 2012, 6:55 PM
Bobby joined Charlie Savage and Jack Healy in querying here whether the U.S. Government might consider asking the Iraqis to extradite Lebanese national Ali Musa Daqduq to the United States.

Published by The Lawfare Institute
in Cooperation With

Bobby joined Charlie Savage and Jack Healy in querying here whether the U.S. Government might consider asking the Iraqis to extradite Lebanese national Ali Musa Daqduq to the United States. It is not a no-brainer for the United States to invoke the 1934 U.S.-Iraq extradition treaty, even if the USG could overcome Congressional objections to bringing Daqduq into the United States or surmount Iraqi objections to trying him before a military commission. Under current policy, the USG enters into new extradition treaties only with states that are willing to extradite their own nationals. Because extradition treaties are reciprocal, that means that the United States needs to be prepared to extradite its own nationals to the treaty partner. As a result, it only enters into new treaties with those countries that have penal systems into which it would be comfortable sending U.S. nationals. Seeking Daqduq’s extradition from Iraq under the U.S.-Iraq extradition treaty is not the same thing as negotiating a new treaty with Iraq, of course. But it seems likely that relevant players within the USG (State, Justice, Defense) are considering the implications of “restarting” the U.S.-Iraq treaty, assuming they view the treaty as remaining in force. Trying to use the treaty to extradite Daqduq would signal that the USG would -- at least theoretically -- contemplate extraditing people to Iraq. And given the state of Iraqi justice, that would be a pretty big deal politically. The treaty itself – hardly of recent vintage – actually allows each party to decline to extradite its own citizens. But given the USG’s larger policy interest in promoting extradition of nationals, it would be awkward for the United States to decline a future extradition request from Iraq on the basis of the fugitive’s U.S. nationality. And of course there could be cases in which Iraq sought to extradite from the United States a fugitive who did not hold U.S. citizenship. To be sure, the United States has transferred at least two American citizens to the Iraqi system already, with the blessing of the Supreme Court. The U.S. military (acting as part of Multi-National Forces-Iraq) detained Shawqi Omar (a U.S.-Jordanian dual national) in 2004 and Mohammed Munaf (a U.S.-Iraqi dual national) in 2005. As is well-known, the Supreme Court declined to block their transfer to the Government of Iraq. But it is one thing to transfer people detained in Iraq to Iraqi custody. It is another thing (as a political, psychological, and legal matter) to extradite someone from the United States to the Government of Iraq. The case points to a larger issue: as the United States winds down its war in Afghanistan (and maybe some part of its activities in Pakistan) and begins to “normalize” its relationship with these countries, those countries may be less willing to use more informal methods, such as expulsions, to allow the United States to take custody of people. The United States therefore may need to turn to more formal law enforcement tools such as extradition treaties to achieve its counter-terrorism goals. But the United States lacks an extradition treaty with Afghanistan and its extradition treaty with Pakistan (dating back to 1931) raises the same set of questions as the U.S.-Iraq treaty. Law enforcement instruments clearly are critical counter-terrorism tools, but developing and using them can raise their own set of complications.

Ashley Deeks is the Class of 1948 Professor of Scholarly Research in Law at the University of Virginia Law School and a Faculty Senior Fellow at the Miller Center. She serves on the State Department’s Advisory Committee on International Law. In 2021-22 she worked as the Deputy Legal Advisor at the National Security Council. She graduated from the University of Chicago Law School and clerked on the Third Circuit.

Subscribe to Lawfare