The Biden administration’s recent high-profile prisoner swap of WNBA player Brittney Griner for Russian arms dealer Viktor Bout has brought the issue of extradition and the legal treatment of foreign nationals accused of crimes abroad to the forefront of the American public’s awareness once again.
For anyone who follows these issues, the fact that things came to this should come as little surprise. Diplomatic frictions between the United States and Russia are well known and Vladimir Putin’s penchant for using American prisoners as geopolitical pawns is a tried-and-true tactic. But tensions between the United States and United Kingdom on matters of extradition and a related key treaty meant to help combat terrorism have also been escalating in recent years. Things may come to a head in the coming months as two key cases are decided and this issue should be watched with keen interest, as an adverse outcome could have significant national security implications.
Extradition is an important tool for protecting national security interests and facilitating cooperation between allies, but one that must be used very judiciously. During the global war on terror, the two allies worked together to implement the U.S.-U.K. extradition treaty of 2003. In a Senate hearing about the treaty, then-Deputy Attorney General Paul McNulty said that ratifying the treaty would benefit the U.S. “through the extradition of terrorists back to the United States.”
Since the treaty’s ratification, that’s exactly what has happened. Those extradited to the U.S. from the U.K. include some of the most infamous terrorists in the world including Babar Ahmad and Syed Talha Ahsan for providing material support to terrorists, and Abu Hamza al-Masri for conspiring to establish a terrorist training camp and supporting jihad.
These types of extraditions are intended to protect American national security. And they have. But in recent years the United States has tried to expand the scope of the treaty to white collar criminal matters to problematic ends. Take for example the ongoing case of Dr. Mike Lynch, who is considered by some to be Britain’s leading tech entrepreneur.
The Justice Department has spent years investigating the British citizen and is seeking his extradition. Lynch, who founded British enterprise software company Autonomy, is accused of white-collar fraud committed in the U.K. for allegedly inflating the value of that company before selling it to Hewlett Packard in 2011.
British courts have already reviewed the corporate dispute and in January 2022, a British judge ruled in favor of HP in its claims against Lynch. Despite this, the United States Department of Justice is still pressing forward with charges of their own and is seeking to try Dr. Lynch for his alleged crimes in the United States, raising the ire of prominent U.K. business leaders and members of Parliament alike.
U.K. tech industry leader Brent Hoberman said “Is it the right thing that a U.K. businessman operating under U.K. laws is extradited to the U.S.? I don’t believe it is.” In 2020 an influential Member of Parliament criticized the United States government for alleged extradition abuses, specifically highlighting Dr. Lynch’s case and claiming they are “seeking to be the judge, jury and execution for global commercial deals.”
Whether or not HP overpaid to acquire a company is not a matter of national security. Using the U.S.-U.K. extradition treaty to prosecute an international businessman over a disputed business-to-business transaction is outside the scope of the original intent of this treaty. This could undermine British willingness to cooperate with other, more serious cases, such as ongoing efforts to extradite WikiLeaks founder Julian Assange back to the United States. His case is currently before the U.K.’s top court and is expected to be decided early this year.
Concerns over imbalance in the treaty already exist, and this case threatens to further erode public confidence in the treaty throughout the U.K. In 2012 Prime Minister David Cameron raised the issue with President Obama. The House Affairs Committee in the House of Commons also concluded that year that robust “extradition arrangements are now threatened by loss of public confidence in the UK.” And in 2013 the U.K. responded to these concerns by amending the treaty to include a “forum provision” that provided the country greater authority to refuse an extradition request.
The challenge is as real now as it was then.
In 2020 then-Prime Minister Boris Johnson said of the treaty, “I do think there are elements of that relationship that are unbalanced and I certainly think that it is worth looking at.” Statements like this should serve as a shot across the bow for senior officials at the Justice and State Departments, as losing the U.K.’s cooperation and partnership and the leverage this treaty provides would have a lasting negative impact on the United States.
Legitimacy, trust, and cooperation are essential components necessary to maintaining a well-functioning extradition treaty that best serves U.S. and U.K. national interests. Using it in cases when American interest is limited, or national security is not at stake, sends the wrong signal and could destabilize a critical tool in fighting global terror and keeping Americans safe.
Major General Bob Dees, US Army, Retired, has a breadth of national security expertise, including development of high technology weapons and communications systems. He is President of Resilience Consulting LLC, promoting individual, leader, and national resilience best practices.