Thursday, July 11, 2019

11-Jul-19: Keeping Ahlam Tamimi safe: A Jordanian case for double jeopardy?

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If you follow our Twitter account, you might have seen our reaction to some posts in the past few months by a veteran Palestinian/Jordanian journalist.

He has been responding to reports of criticism directed at the Hashemite Kingdom of Jordan for maintaining its brazen refusal to extradite to Washington Ahlam Tamimi, the mastermind of the Sbarro massacre in which our daughter was one of the many child victims.

The journalist believes the United States authorities (meaning the Department of Justice whose ranks of lawyers arguably know a thing or two about law) are trying to pull a fast one and that Tamimi cannot lawfully be extradited.

Here, using his precise words (and punctuation), are the various ways he frames the issue:
  • "It seems that the US is unaware of the concept of double jeopardy when it comes to the case of Ahlam Tamimi" [Tweet]
  • "Double jeopardy. You can't be tried and charged and serve for same act twice." [Tweet]
  • "US law is clear about double jeopardy. She was jailed by Israel why us the US trying to try her again" [Tweet]
  • "Double jeopardy. She was tried sentenced and served in Israeli jail. International doesn't allow being pinished twice for same act." [Tweet]
  • "Double Jeopardy Clause of 5th Amendment to  US Constitution makes it illegal to punish a person twice for the same case." Ahlam Tamimi case [Tweet]
  • "No bloody misinformation
    It is called Double jeopardy. She was tried sentenced and served in Israeli jail. International law doesn't allow being pinished twice for the same act" [Tweet]
  • "you are familiar with an American judicial issue: double jeopardy. Double jeopardy is a procedural defence that prevents an accused person from being tried again on the same (or similar) charges and on the same facts, following a valid acquittal or conviction." [Tweet]
  • "there is something called double jeopardy. Once a person is tried and sentenced they can't be punished again for the same act. If they are released in a prisoner exchange and given a pardon they can't be punished again. Please keep the facts straight and avoid untruthful HASBARA" [Tweet]
As a Jordanian, he pays a lot of attention to what he thinks American law is. Leaving aside how right or wrong his journalistic view of the law is, he might be overlooking how Tamimi's extradition is not being blocked by some US legal issue, but the law of Jordan.

Jordan's highest court said in March 2017 why it thinks Tamimi cannot be extradited ["20-Mar-17: The Hashemite Kingdom's courts have spoken: The murdering FBI fugitive will not be handed over"]. There is a Jordanian constitutional issue, they said. So the treaty is void. In fact, they astoundingly assert, it was void from the day it was signed in 1995.

We believe there is a lot wrong with their reasoning and explain some of it in this recent post of ours: "30-May-19: Paris, Amman, Washington: Extradition and what it can reveal about governments and terror". As we wrote there, the highest Jordanian court's decision to block the extradition of Tamimi to the US to face terrorism charges in Washington
now looks contrived and unconvincing. And though the United States isn't saying much about it, we think people ought to know... It decided within the same week as the announcement of Federal charges against Tamimi, in fact just days later. In a somewhat bizarre ruling it first confirmed what everyone already knew, that there is indeed an extradition treaty with the US and has been since 1995. The Clinton Administration had signed it with King Hussein's government when it wanted to get its hands - and did get its hands - on Eyad Ismoil, one of the 1993 World Trade Center bombing plotters. But, said the court, embarking on a Save Tamimi strategy, a constitutional flaw in the process meant that the treaty with the US could not be used to send the confessed killer to a Washington courthouse. Moreover, the treaty was not only invalid now. It had been invalid since the day it was signed. This is an astounding thing for a US ally to claim.
But whatever the Jordanian judges held in their March 2017 ruling about Tamimi, it's not what the professor of journalism said. And it's most certainly not what the US says.

(By the way, there's a well-reasoned and very worthwhile take-down of that Jordanian journalist here: "No, @DaoudKuttab, there is no "double jeopardy" in having celebrity terrorist Ahlam Tamimi face trial in the US" by the always-readable Daled Amos on the indispensable Elder of Ziyon site.)

But there's another factor at work here. We mentioned it in a post ["24-Mar-17: Our daughter's smiling killer: "Shocked" that US "decided to go after her for no obvious reason""] two years ago:

Our March 2017 blog post is here.
In a formal response to our questions at that time (March 2017), the Department of Justice stated to us as its official view that the Extradition Treaty between the US and the Hashemite Kingdom of Jordan was signed on March 28, 1995 in Washington DC. This signing was followed by what's called the exchange of instruments of ratification on July 29, 1995. The Extradition Treaty entered into force that same day. 

And it continues to be in force. How do we know? We know because that treaty continues to be listed in an authoritative US government text entitled "Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2011". 

Constantly updated by the State Department, the most recent and current edition of that “Treaties in Force” document is posted online here. Anyone who looks today can find the treaty with Jordan on page 252.

So the US which is the other party to a two-sided agreement (also arguably Jordan's most important friend and backer in the world) has no doubt, and states for the record, that the treaty between them is fully in effect.

Then there's this.

On January 25, 1997, Jordan's Court of Cassation (the very court that ruled the treaty ineffective twenty years later) held that the Treaty was unconstitutional. That was said to be because Jordan had not submitted the Treaty to its parliament for endorsement. And in the twenty years since then, Jordan's parliament has still (to use the DOJ's language in its letter to us) "not approved the Treaty".

So if it was unconstitutional -
  1. Why was the same question put to Jordan's highest court a second time? Or, given the close ties between Jordan and the US, and Jordan's very high degree of dependence on the US - for the 27th time!
  2. Why has Jordan done nothing to fix what its highest court, but not its most important partner, says is a defect?
  3. How does it happen that, despite this finding of unconstitutionality, Jordan has kept on extraditing Jordanians to the United States to face terrorism charges? (Details on request. Or go find them via Google. They're not a secret, except from every mainstream reporter who has covered this story and failed to find them.) But draws the line at  a Jordanian woman whose extreme malevolence was directed specifically at Israelis? 
There might be reasonable answers. But then reasonable people might wonder at the complete silence of Jordan's government in the wake of the ruling. As far as we can tell, they imposed a total comment-blackout on the Tamimi decision that continues until now. 

For a far more sober and credible view of the law that applies to the Tamimi extradition, see an October 2017 commentary published by the respected National Security Law Brief:
Jordan's positions are without merit... the United States should not give up on attempting to extradite Al-Tamimi. If other countries place enough pressure on Jordan due to concerns of Al-Tamimi’s danger and susceptibility to planning another attack, Jordan may change its position... Jordan should reconsider its position and permit extradition in the case of Al-Tamimi for the safety of Jordanians, and citizens of other nations that may be subject to another attack by Al-Tamimi. Thwarting extradition not only violates the principle of comity, but it also perpetuates the international danger presented by Al-Tamimi... ["Pressure on Jordan: Refusal to extradite mastermind of deadly 2001 Sbarro suicide bombing in Jerusalem contravenes international law and agreements", Michelle Munneke, published October 28, 2017]
You might also be interested in these posts of ours on the same subject:
The Jordanian journalism professor's double jeopardy claim doesn't seem to be on the minds of any of the relevant decision makers.

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