Dodging the Law of Extradition

The details of Aimal Kansi's unplanned journey from room 302 of Hotel Shalimar in Dera Ghazi Khan to a maximum security cell in Fairfax county jail in the United States are now fairly clear. In the first week of June the American Federal Bureau of Investigation (FBI) received credible information on Kansi's whereabouts. Without much ado, an FBI team attached to the "heroes program" was on flight to Quetta. Within days, five FBI officers wearing shalwar kameez were running up the stairs of Hotel Shalimar and innocuously knocking on Aimal Kansi's room. The rest, as they say, is now history.


Aimal Kansi featured prominently on the FBI's Ten most wanted list. He was wanted for the alleged shooting of five persons at a traffic light outside the CIA headquarters in January, 1993 which left two people dead. The AK 47 rifle used in the shooting was found in his apartment. The FBI most wanted poster described Kansi as "armed and extremely dangerous."


With such a curriculum-vitae Kansi's apprehension should have been a cause of relief. Instead, it has been a cause for protest. However, it is not his departure for the United States, but the manner in which such departure was effected that is the cause of such protest. According to Pakistani law i.e., the Extradition Act, 1972 "every fugitive offender shall be liable to be apprehended and surrendered in the manner provided in the Act." Which effectively means that no fugitive offender can be apprehended or surrendered in any other manner. If done so, it would be in violation of the Extradition Act, 1972.


If Kansi was to be extradited according to law, then Thomas Simons, the American Ambassador in Pakistan would have made a requisition for the surrender of Aimal Kansi to the Federal Government as provided in Section 6 of the Extradition Act, 1972 . Upon such requisition, the Federal Government would have ordered a magisterial enquiry as envisaged in Section 7 of the Extradition Act, 1972. The magisterial enquiry would have either concluded that a prima facie case is made out against Aimal Kansi or not. Thereafter, the Federal Government would have had to form the opinion whether Aimal Kansi should or should not be surrendered to the United States in accordance with Section 11 of the Extradition Act, 1972. Only after such decision could Aimal Kansi have been surrendered to the United States authorities.


This detailed process of the Extradition Act, 1972 has worked remarkably well in the case of more than a dozen drug lords who were extradited to the United States in the past decade. Therefore, it is difficult to grasp why such process was abandoned in the case of Aimal Kansi. The only possible explanation--evinced from the "yahoo"…"we're No. 1" popular reaction in the U.S.-- is that the urge for revenge overwhelmed the regard for the due process of law.


In the case of Aimal Kansi, there was no requisition, no magisterial enquiry, no forming of opinion--only an urge to be rid of him by his country of origin. Clearly, Aimal Kansi's hasty departure was not in accordance with the Extradition Act, 1972. It cannot even be said that Aimal Kansi was extradited, albeit improperly. The only legal explanation of Kansi's departure is that he was kidnapped.


The proposition that the FBI would be involved in kidnapping and abduction seems a bit far fetched--almost 'X File'ish'. Yet not necessarily so. In fact, in 1990, a Mexican doctor, Alvarez Machain was forcibly kidnapped from his clinic in Gualdalajara, Mexico and flown to Texas where he was formally arrested by American law enforcement personnel. Alvarez Machain was indicted for participating in the kidnap and murder of an American Drug Enforcement Agent, Enrique Camarena.


The U.S. District Court dismissed the indictment against Alvarez Machain since his presence was procured by forcible abduction and not in accordance with the extradition treaty between the United States and Mexico and ordered that Machain be returned to his home country. The Court of Appeals also affirmed the decision of the District Court. However, the U.S. Supreme Court took a different view in 1992.


Chief Justice William Rehnquist, while writing for the majority, reversed the decision of the District Court and the Court of Appeals on the grounds that the Extradition "Treaty [between Mexico and the U.S. said] nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from their territory of the other nation."


Chief Justice Rehnquist's argument was deprecated by the minority view expressed by Justice Stevens, who wrote that "the processes and restrictions on the obligation to extradite established by Treaty would make no sense if either nation were free to resort to forcible kidnapping to gain the presence of an individual for prosecution in a manner not contemplated by the treaty." Justice Stevens went further and stated that "most courts throughout the civilised world will be deeply disturbed by the "monstrous" decision the Court announces today." Notwithstanding Justice Stevens minority voice, courts in the U.S. are now bound to follow the majority view in the Alvarez case.


Therefore, as far as Aimal Kansi is concerned, he is unlikely to get any relief on the grounds that he was forcibly kidnapped in violation of the Extradition Act, 1972. After the decision of the Alvarez Machain case, the Fairfax county court will not hesitate to pass judgment on him.


After the forcible abduction of Alvarez Machain, the American law enforcement agents involved in the incident were charged in Mexico for kidnapping Alvarez Machain. It is unlikely that any such charges would be brought against the men who kidnapped Aimal Kansi. After all, in contrast to Alvarez Machain's government who had protested the forcible abduction of its citizen, in the case of Aimal Kansi, the Pakistani government has not only failed to murmur a word of discontent, but has in fact abetted in the forcible abduction.


In 1992, at the announcement of the Alvarez Machain decision, Justice Stevens of the U.S. Supreme Court had had apprehended that "most courts throughout the civilised world will be deeply disturbed by the 'monstrous' decision the Court announces today." It is unfortunate, that instead of being revolted by the monstrous decision of the Alvarez Machain case, we seem to be affirming the right of a foreign sovereign to abduct a Pakistani national in violation of law.