US can prosecute terrorists freed by Israel

The United States can and should prosecute many of the terrorists who were released by Israel last month in exchange for kidnapped IDF Corporal Gilad Shalit.

Since the Antiterrorism Act of 1990, it has been a capital crime under American law, punishable by “death or imprisonment for any term of years or for life, or both,” to “kill a national of the United States, while such national is outside the United States.” A conspirator in such a crime can get up to 20 years imprisonment. No statute of limitations precludes prosecution of old offenses.

Another law, passed in 1994, made it a federal crime to use an explosive bomb “against a national of the United States while such national is outside of the United States.” In 2002 Congress authorized prosecution in American federal courts of anyone who, with criminal intent, injured “a national of the United States” outside the United States by detonating “an explosive or other legal device in, into or against a place of public use” or “a public transportation system.”

Prosecutions have been brought in American federal courts against individuals responsible for bombings that killed Americans in the Philippines, Colombia, Kenya, and Tanzania. Many of the individuals accused of these crimes were brought here for trial following their extradition, on the request of the United States, from foreign countries. American prosecutors have not, however, charged the Hamas perpetrators of bombings in Israel such as the 2001 and 2003 bombings in Jerusalem and Haifa, even though American citizens were murdered in these attacks. They have relied on the Israeli legal process to arrest and punish the perpetrators.

Tamimi, al-Jabaa, Sharakh, Amr, and Dar Musa were prosecuted and convicted in Israeli courts. They and other perpetrators of these murders received either multiple sentences of life imprisonment or long prison terms. Until they were released by Israel’s government under duress in order to bring Gilad Shalit home, they expected to spend the rest of their lives in Israeli prisons. They are now free in Jordan or Gaza.

The Department of Justice should now indict, extradite, and put to trial in United States courts, under American law, these killers of American citizens. Jordan has an extradition treaty with the United States that covers all offenses “punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.” A conspiracy to commit such an offense is also covered by Article 2(2) of the treaty.

No provision of any extradition treaty should preclude bringing these criminals to justice in the United States. The Jordan treaty bars extradition for “political offenses,” but it would be hard to claim that the mass terrorist killings of civilians in Jerusalem and Haifa were only “political offenses.” At the least, Jordan should be put to that test.

Nor could Jordan or any other requested country invoke the bar against double jeopardy that appears in many extradition treaties to prevent second punishment after a criminal prosecution for the extraditable offense has been conducted and fully carried out. That provision obviously does not prevent extradition of a fugitive who flees a country where he has been convicted in order to avoid imprisonment. It also should not prevent extradition if, by some other unlawful means such as Hamas’ extortionate demand, the criminal process is aborted.

Indeed.