Extradition Requested in Harry Dunn Case

At long last, yesterday, January 10, the UK Home Office initiated an extradition request for the American driver in the highly charged matter of the traffic accident which resulted in the death of 19 year-old Harry Dunn.

Presumably, that means the UK Home Office has determined that it could prosecute the driver in that case despite the driver's having diplomatic immunity to UK criminal jurisdiction at the time of the accident. Or else, it has given in to political/emotional blackmail and passed the ball to the U.S. government where it knows the request will be denied. The last sentence of the Home Office announcement - that this is now "a decision for the U.S. authorities" - makes it sound like the latter.

Here's a primer on all you need to know about extradition law and procedure. The bottom line up front is that the U.S. SecState has final discretionary authority to approve or disapprove an extradition request. Clearly, he will disapprove this one, since SecState Mike Pompeo and his official spokesperson have firmly and repeatedly stated his position that the extradition of a person back to a country where that person was previously covered by diplomatic immunity would essentially negate diplomatic immunity itself. And the USG is not interested in abolishing diplomatic immunity.

But will this particular request even get that far? If I were a betting man, I'd bet the USG will reject the request - that is, not even consider it or process it for a decision - on Monday of next week.

In that bet, I think I am on the same frequency as the Dunn family's spokesman, who started to hedge his rhetorical certainty about extradition as soon as the request was made. In the BBC story of yesterday:

Dunn family spokesman Radd Seiger said she [the American driver] will "100% be coming back".

"I have no doubt in my mind, the only thing I can't tell you is when," he told BBC Breakfast.

"This campaign won't stop until Anne Sacoolas is back in the UK facing the justice system. There is no celebration and until she is back, we won't rest.

"This lady is accused of taking Harry's life, then fleeing the country. No-one is above the law in modern society. You don't get to move to a country, break a law in that country and then leave."

Mr Seiger said that under the circumstances, the family was "really pleased" the UK authorities had taken the "huge step towards justice", but if the Trump administration was to ignore or reject the request, it would be re-presented should another administration come into power.

So to recap, he is "100%" certain that in this, or possibly another alternative future dimension, she will be dragged back to the UK. The tell was that he is only 100 percent certain, whereas a pitchman should always be one thousand percent certain, or ten thousand percent, or a million percent certain.

Moreover, I don't think this extradition request would play well in any administration that might succeed the Trump administration. Besides, that next administration could just possibly be headed by Mike Pompeo, now that he's reported to be giving up on plans to run for the Senate.

A country that's got its swagger back would surely never allow its diplomats or their spouses to be extradited.

You Can't Be Too Careful With Snow

The afternoon rush hour came early for us in the Washington DC area today. To be precise, it came at 1:00 PM, which was the deadline for vacating our offices according to the OPM operating status for Tuesday, January 7, 2020

And, sure enough, it did start to rain, and then snow, right about 1 PM. The snow might get an inch deep before it stops around 7 PM tonight.

I fear for tomorrow.

We're Number Three!

Washington DC has been named one of the rudest cities in America, ranked according to a new Business Insider survey.

New York City takes the top spot - no surprise there - and Washington DC comes in third, behind Los Angeles and ahead of Chicago.

The Seat of Government has often been in the #3 spot (see this WaPo story from 2012), and I wonder why. Is DC really all that much ruder than most other cities? Probably it's the political animus that most Americans feel toward one or the other party in power than colors their impressions.

Come now. Can't we disagree without being disagreeable?

Joint State-USAID Press Briefing Ends In Mutual Incomprehension

Or, better yet, it ended due to the very different interests of the senior officials doing the briefing and the members of the press getting briefed.

This week's 'Special Briefing' was convened to refute a report in Foreign Policy magazine that claimed USAID programs in Iraq have been drastically affected by a recent reduction of embassy personnel there. Read the FP article here: State Department Outlines Dramatic Scale-Down of U.S. Presence in Iraq.

So, State and USAID spun up a couple senior officials to refute that report with facts and figures. But when they met the members of the press in the press correspondents room on December 18, it turned out the members of the press had no idea what it was the senior official were refuting.

SENIOR STATE DEPARTMENT OFFICIAL: Well, good afternoon, everybody, and thank you, , for having us here to correct what [the moderator of the briefing] accurately called “wildly inaccurate” stories out there about Iraq staffing. The story is that there is no story here. We adjust our staffing levels all around the world all the time, depending on circumstances, and it’s no secret that we’ve been concerned about the security situation in Iraq for some time, especially threats from our friends the Iranians and their proxies in Iraq.

-- snip --

SENIOR USAID OFFICIAL: Yeah, let me just add to that. For USAID, we think the current staffing levels are sufficient for the administration of our programs. And if they prove not to be, then we can consider augmenting our staff in-country with TDY support or through requesting new permanent positions. There’s – no staffing level is in stone, and so we’ll be considering them as we move forward. None of our programs have suspended or ceased over the last few months; on the contrary, they continue at pace, and we’re doing a wide range of activities throughout the country. We’re working to strengthen Iraqi governance, civil society, the economy, supporting the recovery of religious and ethnic minorities in the north that were targeted for genocide by ISIS, and we’re well positioned to respond to the needs of a changing political environment in Iraq.

We focus on decentralization and accountability of the state to its citizens for service provision and the election administration. And we support the development of civil society that strengthen engagements between government authorities and Iraqi citizens.

To date, the U.S. Government has programmed over $400 million focused on assisting religious and ethnic minorities, of which USAID had programmed 354 million. And we have obligated over 217 million in FY2018 funds for that end. And I’ll just leave it at that for now.

At that point someone in the press woke up.

QUESTION: Okay. So I missed this – these – whatever it is that you guys are trying to clarify.

QUESTION: Foreign Policy.

MODERATOR: Foreign Policy, is that what you said?

QUESTION: (Inaudible).

QUESTION: I didn’t see it, so I don’t know exactly what it said.

Oh, Foreign Policy, okay, gotcha.

Once they'd woken up to the purpose of the briefing, the members of the press next reflexively denied the truth of what they'd just been told.

QUESTION: But it’s no secret, though, that as the administration contemplates troop drawdowns and things like that, that – both in Iraq and in Afghanistan, the staffing levels of the embassies have gone down, right, or are you saying that that’s not true? Because it seems to me, just having been in both places and having seen what they were like when they were stood up in the Bush – both of them stood up in the Bush administration with the idea that Iraq was going to be the biggest embassy in the world. I mean, it’s nothing. It’s a shadow.

SENIOR STATE DEPARTMENT OFFICIAL: Of what?

QUESTION: The physical – the physical – the idea —

QUESTION: Of what it was and what it (inaudible).

QUESTION: The ambition to have it be the big – the biggest and the most staffed embassy in the world. I mean —

SENIOR STATE DEPARTMENT OFFICIAL: It is still the largest embassy in the Middle East, just in terms of U.S. direct hires alone, and that’s what the story was focused on. I’ll let you read the story itself, but as I said, the real story here is that we are making sure that we have got the right staff to do the work in front of them at the time. It’s not 2004, it’s not 2008. If it looked like 2008, this would be a very different staffing discussion right now. But Iraq in 2019 is very different. We had a different set of staff in 2008 compared to what we had in 2013. 2014, we cut right down to the bone as ISIS was 60 miles from the gates of Baghdad. Understandably, we had a different set of staff, again, in 2016 as ISIS was largely beaten back. And now we’ve got a different set of staff to face the challenges that we’ve got in front of us now. But it has nothing to do with military levels – and I’ll defer to DOD for the exact numbers there, but they’re not going down. Their partnership with the Iraqis is just as robust as ever. And so – and we are there, actually, largely in support of their activities as well as USAID’s activities and the things that the State Department is doing.

QUESTION: Well, so, can you give – recognizing, though, all these other circumstances, from its high point of staffing, how – what’s the decrease in the number of staff to now?

SENIOR STATE DEPARTMENT OFFICIAL: I actually don’t have that number for what it was historically at some point in the past, but what I can say now is that all the sections and agencies believe that this is what they need to get the mission done, no more, no less. And as said, if they do feel that they need more for particular changing circumstances, they go to the ambassador and they ask for TDY support, or if it looks like it’s going to be more long-term, more – filling more permanent positions, because no staffing level, as said, is set in stone anywhere in the world.

I think the difference here is that this is the first time a staffing change has been done that required a notification to Congress, because that’s a new requirement as of —

MODERATOR: Yeah.

SENIOR STATE DEPARTMENT OFFICIAL: — last year?

MODERATOR: Yeah, very recent.

SENIOR STATE DEPARTMENT OFFICIAL: So that’s what you’re reading in the Foreign Policy story.

If at first you don't succeed at denying what you were just told, word it a little differently and try again.

QUESTION: Well, I was just wondering, are you disputing the IG report that came out and said that the staffing levels was hurting the mission’s ability to create its mission – to execute its mission? And then it also made reference to having a shortage of USAID officials on the ground for $1.16 billion of aid – about six expatriates. It’s my understanding that there’s maybe been a couple more since then, but that – that was a critical assessment, and it now seems like there’s even fewer following that critical assessment.

SENIOR STATE DEPARTMENT OFFICIAL: I’m not disputing the report. I’m disputing everybody’s understanding of the report and the lack of context in it. That statement is correct for ordered departure. Ordered departure is not meant to be enough people. It’s not meant to be enough people because you’re only at totally non-essential staff. You’re only at emergency staffing levels. So I would have appreciated it if they had said, “During this temporary ordered departure, of course there are fewer staff than what we need,” but the people who really know how many people are needed to oversee USAID programs is USAID. And even we back here aren’t the experts; it’s the people in the field. So we look to them and we always did from the beginning: “You tell us exactly what you need, and we will do our best to try to make sure that that’s what you’ve got.”

MODERATOR: Do you have anything else to add to that?

SENIOR USAID OFFICIAL: Yeah, I mean, I’d just add that USAID works in hard places around the world and in the region, right, and that’s including places where you can’t have all the people you want on the ground. And look at Libya or look at Yemen, and those are places where USAID is capable of working very, very confidently in very challenging circumstances. Iraq is one of those places, and so we’re confident that we can do what we need to do there with the staffing that we’ve put forward.

And if that doesn't work, just make stuff up.

QUESTION: Yeah. I’d just say that you mentioned that was the case under ordered departure, but under this plan that’s beyond ordered departure, it’s still actually fewer numbers —

SENIOR STATE DEPARTMENT OFFICIAL: Fewer than ordered departure?

QUESTION: — of personnel than ordered departure.

SENIOR STATE DEPARTMENT OFFICIAL: That’s not true. That’s not true.

QUESTION: Doesn’t it go from 256 down?

SENIOR STATE DEPARTMENT OFFICIAL: It’s just not true. I’m not going to talk about the numbers, but it’s not true. It is not below ordered departure at all.

Finally, one of the press got tired of the topic of the briefing and went fishing for something she could use against VP Pence.

MODERATOR: Carol, go ahead.

QUESTION: I just have a quick question on the $400 million in aid to religious minorities. Could you give us a breakdown, like how much for, say, Yezidis, how much for Christians, how much for any other groups? Could you slice and dice that a little bit for us, please?

SENIOR USAID OFFICIAL: Sure. I don’t have a full and accurate picture I can give you right here. I’d refer you to our website, and I can follow up with you as well directly with specific options. But it’s split between Yezidis, Christians, other religious and ethnic minorities (inaudible).

QUESTION: Can you just give us a general sense, though? Have you been doing more with Christians? Because that was a big push for this administration.

SENIOR USAID OFFICIAL: I’d have a hard time saying whether it’s more for one religious minority or another, and we’re not targeting specific people by religion. We’re targeting geographies.

QUESTION: So there isn’t a percentage allocated to each religion?

SENIOR USAID OFFICIAL: No, no, no, no. No, no, no, absolutely not.

SENIOR STATE DEPARTMENT OFFICIAL: No, it’s geographical, if I may add, because I’ve seen a lot of these projects. And so if you’re looking in Bartella and Karemlesh and areas southwest of Erbil, you can’t say, “Well, sorry, this water can only be drunk by Christians or Yezidis and not Shabaks or anyone else.” I mean —

QUESTION: Well, why not? We used to do that here.

Annnnd, with that last remark the moderator finally banged the gong and ended the show.

MODERATOR: Oh, Jesus. All right. That’s the end. Thank you.

The SecState Has Final Discretionary Authority Over Extradition

The spokesman for Harry Dunn's family has pronounced himself dissatisfied with statements issued yesterday by the U.S. State Department and by the lawyer representing the American driver. Quoted in the UK Guardian today, Harry Dunn family condemns Anne Sacoolas lawyer:

“There are extradition proceedings under way, and whether the British authorities’ decision yesterday was helpful or not to the American government, this case will be dealt under the rule of law, which we know is just as important to Americans as it is to British people."

“To the extent that anyone in authority seeks to impede a lawful request from the British for Anne Sacoolas to be brought back to the UK, they will ultimately have to put their argument to an independent judge in court.”

Not for the first time, he is wrong.

As I posted yesterday, all you need to know about extradition to the U.S. is explained in a guide written by that same lawyer the family's spokesman condemns. The bottom line is that, by U.S. law, "the Secretary of State has final discretionary authority over whether to extradite a person found extraditable by the court."

The SecState is a guy named Mike Pompeo, and he has already refused a request from his British counterpart to waive diplomatic immunity and allow the driver to be prosecuted in the UK. The ultimate decision in any extradition case will be his alone.

Extradition in the Harry Dunn Case "would establish an extraordinarily troubling precedent.”

Where the legal immunity of USG personnel will be reduced

The UK Crown Prosecution Service announced today that it approved the filing of criminal charges against the American driver in the Harry Dunn case, and that it will make a request for her extradition.

The other piece of news to come out today is that the Commonwealth and Foreign Office has completed its review of the bilateral agreement pertaining to U.S. personnel at RAF Croughton and found that American staff members at the base at some point in time had “pre-waived” their immunity against criminal prosecution in the UK, but that this was not done for their family members. Accordingly, the family members have more immunity than the employees do. The only certain legal consequence to come out of the accident that killed Harry Dunn is that the immunities of Croughton personnel will be limited or ended.

From the WaPo this afternoon, American diplomat’s wife is being charged with causing the death of British teen Harry Dunn:

Anne Sacoolas, the wife of an American diplomat, is being formally charged with “causing death by dangerous driving” in the case of a crash on British soil that killed teenager Harry Dunn in August.

-- snip --

“Following the death of Harry Dunn in Northamptonshire, the Crown Prosecution Service has today authorised Northamptonshire Police to charge Anne Sacoolas with causing death by dangerous driving,” Chief Crown Prosecutor Janine Smith said in a statement.

-- snip --

In Britain, causing death by dangerous driving carries a maximum penalty of 14 years in prison and a disqualification from driving for at least two years.

“We express our deepest sympathies and offer condolences to the Dunn family for their loss,” a U.S. Department of State spokesperson said Friday. “We will continue to look for options for moving forward. We are disappointed by today’s announcement and fear that it will not bring a resolution closer. … We do not believe that the UK’s charging decision is a helpful development.”

The UK Guardian had this statement from the lawyer of the American driver, Anne Sacoolas refuses to return to face Harry Dunn charges:

A statement from the lawyer for Anne Sacoolas came after the Crown Prosecution Service announced it was bringing charges over Dunn’s death in August. Amy Jeffress said the potential 14-year sentence was “not proportionate” for what was “a terrible but unintentional accident”.

The statement said: “Anne is devastated by this tragic accident and continues to extend her deepest condolences to the family. Anne would do whatever she could to bring Harry back. She is a mother herself and cannot imagine the pain of the loss of a child. She has cooperated fully with the investigation and accepted responsibility … This was an accident, and a criminal prosecution with a potential penalty of 14 years’ imprisonment is simply not a proportionate response.”

Jeffress said they had been talking to the UK authorities about how Sacoolas could “assist with preventing accidents like this from happening in the future, as well as her desire to honour Harry’s memory … But Anne will not return voluntarily to the United Kingdom to face a potential jail sentence for what was a terrible but unintentional accident.”

-- snip --

The CPS said it had started extradition proceedings.

It said: “The Home Office is responsible for considering our request and deciding whether to formally issue this through US diplomatic channels. Our specialist extradition team will be working closely with the UK Central Authority at the Home Office to do this.”

Dunn’s father Tim added: “We set out so long ago and we believed and we believed and we believed, and we’ve done it, we’ve done it, we’ve got the charge. This is it, it’s amazing, it’s absolutely amazing. Justice. Whatever happens now it doesn’t matter, we’ve got what we wanted.”

-- snip --

The Foreign Office is to remove an anomaly that helped Sacoolas leave the UK, claiming diplomatic immunity after her car crashed into Harry on 27 August, killing him and prompting a long diplomatic tug of war between the US and the UK.

-- snip --

Under arrangements agreed in 1964, US staff members at the base “pre-waived” their immunity against criminal prosecution in the UK, but this was not done for their families. The Foreign Office has rejected freedom of information requests on the terms of the 1964 agreement saying it is not in the national interest.

One option being explored is to extend this automatic waiver to family members so their degree of protection is the same as for staff.

So then, the action in the Harry Dunn case now moves on to the matter of whether the Amertican driver can be extradited to the UK. And that's where we need the counsel of a specialist in international extradition and national security law. Someone like this (who, by the way, is the lawyer representing Anne Sacoolas).

In that legal specialist's primer on extradition law and practice in the United States we learn that the final stage of an extradition request is a "certification by court and decision by the Secretary of State."

If the court ‘deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention’, it will issue a certification of extraditability (18 USC Section 3184). The Secretary of State has final discretionary authority over whether to extradite a person found extraditable by the court (18 USC Section 3186; United States v. Kin-Hong, 110 F.3d 103, 109, 110 (1st Cir 1997)).

That's the same Secretary of State who has already refused a request for waiver of the driver's diplomatic immunity. What are the odds he will now agree to her extradition?

Today's statement by a State Department spokesman on the decision to charge the American driver ended with this: “The use of an extradition treaty to attempt to return the spouse of a former diplomat by force would establish an extraordinarily troubling precedent.” That makes the American position perfectly clear.

The driver will not return to the UK voluntarily, and the USG will certainly not agree to her extradition. That means it's all over except for the posturing. The UK police, Foreign Office, and Prime Minister will presumably do all within their power to advocate for the driver's return, but that will have no effect.

As for the family of Harry Dunn, will the criminal charges alone be the catharsis that allows them to grieve and move on with their lives? I'd like to believe the father's statement that "we’ve done it, we’ve done it, we’ve got the charge. This is it, it’s amazing, it’s absolutely amazing. Justice. Whatever happens now it doesn’t matter, we’ve got what we wanted.” I'd like to believe it, but I can't, not after they've spent months of emotional investment, abetted by the tabloids, in the hope of a trial and punishment.

Harry Dunn Case: FCO Rejects Family's Claims, Will Oppose Judicial Review

Dominic Raab, Secretary of State for Foreign and Commonwealth Affairs

The Harry Dunn case has moved forward one step. The Foreign and Commonwealth Office rejected the family's claims of misue or abuse of power, as well as their request that the FCO withdraw its advise to the police regarding the American driver's diplomatic immunity.

From the BBC yesterday:

In the letter, the FCO said it would "seek costs" for any judicial review brought and argues the family has not found "any reasonably arguable ground of legal challenge".

It said the allegation that the foreign secretary had "misused and/or abused his power" was "entirely without foundation".

The family's lawyer/spokesman, normally so voluble, has so far maintained a near-total Twitter silence on this setback.

There are further details of the FCO's letter from the Press Association:

It is understood a legal claim issued by Harry’s family on October 25 was met with strong resistance from the FCO – who said any judicial review would be “opposed” and “defended”.

The 19-year-old’s parents had requested the FCO “withdraw the advice” provided to Northamptonshire Police surrounding the granting of diplomatic immunity to the US suspect in the case Anne Sacoolas.

The family’s lawyers also offered an alternative request of “paying substantive damages” for breaching the European Convention of Human Rights.

-- snip --

The claim against the FCO issued on behalf of Mr Dunn’s parents – Charlotte Charles and Tim Dunn – alleged the granting of diplomatic immunity to Mrs Sacoolas was “wrong in law”.

-- snip --

In the letter, the FCO wrote: “It is not accepted that the proposed claim for judicial review articulated on your clients’ behalf in your letter, dated October 25, identifies any reasonably arguable ground of legal challenge.

“It is not therefore accepted that you have identified any arguable basis on which to suggest that the FCO ought now either ‘to withdraw the advice provided to the police’, or to pay ‘substantive damages for the breach of Articles 2 and 6, ECHR’.

“The unparticularised allegation that the Secretary of State for Foreign and Commonwealth Affairs (SSFCA) has misused and/or abused his power and/or has committed misfeasance in public office is entirely without foundation.”

The response continued: “As to the alternative ground of challenge based on Articles 2 and 6 ECHR, it is not accepted that you have identified any basis under the ECHR to criticise the SSFCA’s actions.

“The SSFCA therefore declines to take the action you have invited him to take on behalf of your clients, and would oppose any application for permission to bring a claim for judicial review.

“We therefore invite you not to pursue the proposed claim. In the event that the claim is issued, it will be defended, the application for permission will be opposed, and the Secretary of State will seek his costs for doing so.”

So the FCO is willing to be the bad guy in this touchy case, defending the legality of its ruling on diplomatic immunity for the driver. Not a popular position, I don't suppose, but the facts and the law on immunity are clear.

From this point on, the family's lawyer/spokesman might as well concentrate all his bad advise on pursuing his Plan B, that promised million-dollar payday in a U.S. court (“In the U.S. you can sue for millions of dollars if someone spills some hot coffee on your hand at McDonalds”). Of course, assuming he finds a U.S. judge willing to assert jurisdiction over traffic accidents in the UK, he'll then be fighting an insurance agency, and those people care not at all for public opinion and will make the FCO seem like a toothless bulldog in comparison.