For the past fourteen years, I have accepted very few INTERPOL cases wherein people were subjects of U.S.-requested Red Notices. The United States has historically been one of the countries that scores highest on due process observation, human rights protection, and application of law to proven facts. Our justice system is certainly not without flaws; anyone who practices regularly in any courtroom knows this.
But by and large, the courts have operated in accordance with applicable procedural and substantive rules, and law enforcment officials at the federal and state levels have at least maintained a record of compliance with their governing statutes and codes. This has meant that court files contained demonstrable proof of:
- notice of proceedings,
- observance of time limits and deadlines,
- announcement of the rights to which every defendant or respondent has available in that venue, and
- reference to evidence of the alleged law violation.
Moreover, the vast majority of court proceedings (with few exceptions) in the U.S. are public, with publicly available court records, hearing calendars, and discovery schedules, processed with due observance to domestic law.
Because of this record of compliance with the law and transparency, U.S.-requested Red Notices have been much less suseptible to attack: there is usually proper service, a translator, public proceedings, substantive and individualized bond hearings, and the like.
And there is usually not torture; pressure against family members to convince a person to return to the jurisdiction by seizing the family members’ pension; or public stated preferences by a member of the executive branch regarding the outcome of a case. There is relatively little record of politically motivated prosecutions, executive branch commentary on judicial activity; or pressure against the judiciary to rule a certain way. All of these safeguards have resulted in U.S.-requested Red Notices being less vulnerable to challenges.
Until now.
The current administration has begun to engage in prosecutions that are described by insiders and observes as being political, and firings of prosecutorial staff for refusing to support those efforts, or for appearing “disloyal” to the Trump administration. These actions include:
- Firing a career prosecutor for refusal to file an an indictment unsupported by law and fact (link here);
- Firing a federal prosecutor based on an anti-Trump post from several years ago, leaving the prosecution of serious federal cases in jeopardy (link here); and
- Pressuring a federal prosecutor to resign for refusal to charge a political opponent (link here).
The current administration has publicly stated that it:
- Has and will continue to kill suspected criminals in international territory with no efforts to provide any due process (link here);
- Will no longer allow immigration courts to make findings regarding a person’s danger to the community or risk of flight in a bond hearing for any undocumented immigrants, even if they have no disqualifying criminal record (link here);
- Will send troops to selected U.S. cities led by party opponents to fight a “war from within;” such cities include New York, Chicago, San Francisco, and Portland (link here and here). Courts have intervened to prevent these military actions.
The U.S. has recently been added to a global human rights watchlist over “declining civil liberties” under the Trump administration. It also reached its “lowest score ever” of 65 out of 100 on Transparency International’s corruption metric.
Things have changed in the U.S. – our case evaluation process must reflect these changes. The current administration’s actions have rendered the U.S. legal system subject to valid skepticism by the international community. We are seeing increased documentation of the failures of the U.S. government’s separation of powers and judicial independence, and that documentation can be used to support valid removal requests, along with individual evidence in a given case.
It brings me no pleasure to make this observation about this country that has always been my home, but it cannot be denied. It is likely only a matter of time before other countries and INTERPOL choose not to support certain U.S.-based requests for extradition.
As always, thoughts and comments are welcomed.