Human Rights Beyond the War on Terrorism: Extradition Defenses Based on Prison Conditions in the United States

Abstract

The death penalty presents an issue where a clearly stated norm that is widely held by U.S. allies exists in stark contrast to U.S. practices. The war on terrorism has shone a spotlight on European refusals to extradite terrorists who are accused of capital crimes, but such refusals are double-edged from a human rights perspective. Although capital punishment would seem to be a natural testing ground for human rights advocates to expand the internalization of international norms in the United States, human rights law arguments that support abolishing the death penalty risk making international opinion seem irrelevant or even hostile to U.S. values and interests. It may well be that these refusals to extradite terrorists will not amount to much. After all, Soering v. United Kingdom was the case that launched a thousand law review articles, a significant number of which stated that the United States eventually will have to abandon capital punishment to maintain a position of moral leadership in world affairs. Yet Soering's only tangible effect in the United States is that in a small fraction of extradition cases, prosecutors have made assurances not to seek the death penalty; neither capital punishment nor extradition has been much affected.In the event, however, that the United States stops negotiating around Soering and refuses to agree to the conditional extradition of a terrorist leader, such an impasse may well deepen the hostility of most Americans to international norms.