Thanks, Bricker. I was pretty sue there was a provision like that, but my limited poking around in the US code didn’t reveal it.
He’s the Lockerbie bombing guy, right? If so, then yes. He’s living with his family in Tripoli. He turned up at a pro-Qadaffi rally a few weeks ago.
We’re assuming a bit here.
Given that there was clearly a concurrent jurisdiction issue at the time of the original trial, I think it doubtful that the government then in place in Libya would not have demanded assurances that Scotland would exercise sole jurisdiction.
That is especially true considering that the Libyan government did demand assurances from the US and UK that the trial would occur in a neutral state (the Netherlands).
If the US ceded its claim to jurisdiction over al-Megrahi then, I think there’s a very good argument to be made that a trial in the US would raise double jeopardy issues - or that the US’ waiver of jurisdiction is irrevocable.
The attitude of the UK authorities is of more than diplomatic relevance. They hold most of the physical evidence relating to the case, and most of the expert witness evidence, and investigating officer evidence, would have to come from witnesses in UK government service - police, forensic scientists, etc. Even if the US could get Megrahi into its jurisdiction, it’s very hard to see them mounting a successful prosecution without UK co-operation.
Megrahi was released on licence from the Scottish prison system, andis still subject to their control. He was released on certain conditions regarding periodic reporting to and conference with the Scottish authorities (which, apparently, he has been complying with). He is still, in short, serving his sentence, albeit not in prison. In those circumstances it would be embarrassing for the UK, to put it no higher, to co-operate with a second prosecution for the same offence.
If Megrahi were to breach the terms of his licence, the UK authorities could ask the (new) Libyan authorities to return him. That’s not very likely to happen, frankly, but it’s much more realistic prospect than extradition to, and conviction in, the US.
Here is a fairly detailed article about the legal aspects of the trial: Donna E. Arzt, The Lockerbie “Extradition By Analogy” Agreement: “Exceptional Measure” Or Template For Transnational Criminal Justice?, AM. U. INT’LL. REV. [18:163] (Note: PDF).
According to this article, there was no agreement between Libya and the United States. Rather, the US and the UK made a non-negotiable demand that the Libya transfer the two individuals for trial, which Libya eventually did, after extensive negotiations about the terms of the Scottish trial in the Netherlands.
Now, would that be enough to argue that double jeopardy would attach in US law? I have no idea.
The two individuals had been indicted by a US Attorney. Did the pressure that the US government put on Libya to agree to the trial in the Netherlands amount to a waiver by the US of its power to try the accused on the indictment in the US courts? I doubt that there is a clear answer to that question, since this entire episode was so unusual.
Well, one of us is assuming a good bit, anyway.
Do you have any evidence at all that the US ceded its claim to jurisdiction over al-Megrahi?
I agree that if we did, then that would probably operate as a bar to reprosecution – although not grounded in double jeopardy principles, but in the contract principles normally applied to plea negotiations.
But did we?
(And if you’re interested in the side discussion, then please provide some citation for the claim that if we did it would trigger double jeopardy protections.)
No, pressure from the US would not trigger double jeopardy or create any kind of waiver. There’s not a shred of support in the double jeopardy pantheon of caselaw for that proposition.
And that article’s assertions about the lack of a deal sort of puts the skids on Really Not All That Bright’s proposal.
That would be my personal reaction, but I’m not familiar with US double jeopardy, so simply phrased it as a question. However, if the fellow is ever somehow brought into a US court, I’d be astonished if his lawyers didn’t make the argument.
Of course.
But I would equally well expect the prosecution to mention Heath v. Alabama (two states’ prosecutions for the same act does not violate double jeopardy); Barkus v. Illinois (state prosecution following a federal one for the same act does not violate double jeopardy); Abbate v. United States (federal prosecution following a state one for the same act does not violate double jeopardy); and finish off with United States v. Guzman (federal prosecution following a Dutch prosecution does not violate double jeopardy).
Nitpick: Manuel Noriega. I believe you are conflating him with Daniel Ortega, former president of Nicaragua.
If you are solely relying on US law, right.
However, Scottish law is also relevant, as he is still on license (if UDS is correct, I’ve not checked), and also Libyan law, whatever it will be in the future, and potentially international law. The last would definitely be the case if it were a dispute between two EU countries, but I’ve no idea if the US is bound by any relevant laws or treaties.
It may not be relevant to this question, as the opinion of the Scottish judiciary may not affect what happens to him, but no EU country could extradite anyone to a country where they may face the death penalty.
How is it relevant? If the new government in Libya agrees to extradite him to the US, how can Scotland prevent it? And how would Scottish law bind a US federal court?
True about the death penalty, but that is normally handled by the requesting country (i.e. the U.S.) giving an undertaking that if convicted the accused will not face the death penalty.
Do any of those cases have any prior involvement by the US federal government in the earlier prosecution by a different sovereign? If not, they may leave some space for the argument that that the US’s involvement in getting him tried by Scotland amounted to a waiver of the US jurisdiction. In other words, has this particular situation ever arisen before in the US, in the context of a double jeopardy claim?
Yes, that seems to have been put to bed.
Was Guzman extradited to the US? The rule articulated by the court doesn’t make sense in the context of an extradition given the requirement that the act be a crime in both the extraditing and receiving states.
Prior involvement by the Feds assisting a state prosecution, and then prosecuting themselves, has been held to not violate the Double Jeopardy clause.
Jeopardy doesn’t attach to domestic prosecutions until the moment the jury is sworn, or in a bench trial until the moment the judge begins hearing evidence. I am not following how an extradition proceeding would affect jeopardy.
But we’re not talking about domestic prosecutions - we’re talking about extradition proceedings preparatory to domestic prosecutions. The state has already begun giving evidence against the accused, albeit in a different forum.
I’m walking on ground I don’t know very well here, but I would be quite surprised if there’s a lot of law in this area.
But (unless the US simply kidnaps him) any extradition proceedings will take place in Libya, and will be governed by Libyan law. And in those proceedings Megrahi will certainly make the point that he has already been extradited from Libya for this very offence, and furthermore that he has been tried for it, and convicted of it, and sentenced for it, and is still serving his sentence.
If the new Libyan regime is going to make any pretence about valuing human rights or the rule of law, that is going to be a serious issue. While it might be the case - I don’t know - that a US state can extradite successively to two other states for separate trials arising out of the same matter, it’s unlikely that the Libyan authorities would regard that as concluding the issue before them.
There’s another issue. There’s (currently) no extradition treaty between Libya and the US, so extradition is - at the international level - a political decision by the Libyan government. That was how Megrahi was extradited to the Netherlands, the first time around. However, as the very useful article which Northern Piper linked to points out, Libyan law allows the extradition of offenders only if they are not Libyan citizens, which Megrahi is. (Many countries have a similar provision.) Once Gaddafi reckoned that it was in his interests to hand over Megrahi, he didn’t feel constrained by this since the rule of law had no place in his thinking. But, again, if the new regime either takes the rule of law seriously or at least wants to pretend to, they can hardly ignore the fact that Libyan law forbids Megrahi’s extradition.
The bottom line, I think, is that if the new regime extradites Megrahi to the US, there is nothing in US law which would prevent him being tried. But there are substantial legal and political obstacles to his extradition, and if he were nevertheless extradited there would be substantial practical difficulties in the way of a safe conviction.
Unrelated point: The precedent of Manuel Noriega has been mentioned. But, after being convicted in the US and serving his time, Noriega was extradited to France for trial on different charges - i.e. charges arising out of different events and actions - no double jeopardy there. (And the French have indicated that when he has served his time in France he will be extradited to Panama, where he faces charges arising out of still other events and actions.)
I can’t imagine the NTC would have any sympathy for an intelligence agent for the hated former regime. Let alone enough to risk jeopardizing their relationship with US.
Of course ideally you’d want to prosecute someone a bit higher up than a mid-level intelligence agent. I always thought it was a bit ridiculous that the west implied that the prosecution of al-Megrahi was the end of the matter. As if an intelligence agent in a brutal autocratic regime would on his own volition decide to blow up a US airliner without orders from above.
I think it would be acutely embarrassing to the NTC to be asked to extradite Megrahi.
There’s the obvious fact that he has already been extradited, tried, convicted, sentenced and imprisoned for this very offence. While a second trial in the US might not violate US concepts of double jeopardy, it will violate a great many people’s sense of basic fairness.
Plus, he’s visibly very ill, so there’s a sympathy factor.
Plus plus, while the questions and doubts surrounding his conviction may not have received much attention in the US, you can be pretty sure they have been widely canvassed in Libya. Rightly or wrongly, extraditing him again would be seen as knowingly delivering him to be framed up in order to curry favour with the Americans.
Remember the fact that the Libyan people may hate Gaddafi doesn’t mean that they necessarily love the US. The NTC may have an interest in a good relationship with the US, but they have a great deal more invested in a good relationship with the Libyan people - a relationship which has het to be established. It’s domestic considerations, not international ones, which will determine how they deal with an extradition request. And the domestic considerations lean very strongly against it.
As it happens, I don’t think they’ll ever face the dilemma. Apart from the fact that the US has no interest in poisoning the relationship between the NTC and its public, I’ve already pointed out the considerable practical difficulties the US would have in mounting a prosecution at this stage, without the co-operation of the UK, which certainly cannot be assumed. But there’s also the enormous embarrassment for the US (and indeed the UK) if, as must be possible, Megrahi was acquitted. The conspiracy theory verson of Megrahi’s release on licence was that this was done precisely to avoid the embarrassment of having his conviction, and the evidence on which it was based, scrutinised in a court. It suited the US to let off a lot of steam at the time and let the UK take the scalding, but it would suit them rather less to expose themselves to the embarrassment that the UK avoided.
They won’t seek his extradition, or if they do it will be for form’s sake only, with the expectation that the NTC will refuse and that this will not harm their relationship with the US.