The media firestorm that has arisen in the wake of Russia’s detention of Wall Street Journal reporter Evan Gershkovich has brought newfound attention to the issues of extradition and the legal treatment of foreign nationals accused of crimes.
Unfortunately, this is but one example of a growing trend of authoritarian regimes taking high-profile American detainees to achieve diplomatic ends, as it is an increasingly utilized approach by countries like Iran and China as well. But while this is a foreign policy reality that Americans may increasingly need to come to grips with, many may not be aware that there are also emerging tensions between the United States and United Kingdom over extradition related matters. A key treaty that assists in battling terrorism may hang in the balance.
The U.S.-U.K. Extradition Treaty of 2003 in many ways represents a culmination of the mutual respect and cooperation that exists between these two great nations. Established in the wake of the September 11thterrorist attacks, it has proven invaluable in ensuring that terrorists and other dangerous criminals are brought to justice and has been effective in protecting national security interests on both sides of the Atlantic.
However, recent attempts by the United States to expand the treaty’s scope to include white-collar criminal matters have raised concerns about its potential misuse and the broader national security implications. The ongoing legal battle over the extradition of Dr. Mike Lynch to the United States, in particular, highlights the potential risks of misusing the treaty in ways that could ultimately undermine this productive working relationship.
Dr. Lynch, a British citizen and tech entrepreneur known by some as ‘Britain’s Bill Gates,’ is the former CEO of the British software company Autonomy. Subject to a years-long fraud investigation by the United States Department of Justice (DOJ), Dr. Lynch and other executives at Autonomy have been accused of artificially inflating the company’s revenues prior to its acquisition by Hewlett-Packard (HP). However, the case against Dr. Lynch is far from clear-cut.
A British civil court reviewed the corporate dispute and ruled in favor of HP in its claims against Lynch in January 2022. But the UK’s Serious Fraud Office (SFO) previously conducted a lengthy investigation into the matter and ultimately decided not to pursue criminal charges concluding that there was “insufficient evidence” to prosecute. Moreover, there are serious concerns about the DOJ’s case. Specifically, the DOJ’s indictment of Dr. Lynch relies heavily on the testimony of former Autonomy executives who have themselves been charged with fraud and on disputed accounting practices that were approved by Autonomy’s auditors at the time.
Despite these discrepancies and the fact that this case has been litigated extensively in the British judicial system, the DOJ is still seeking to try Dr. Lynch for his alleged crimes in the United States. This has renewed calls for change by some in the U.K. that are concerned about imbalances in the extradition treaty in favor of the U.S., and who believe it is inappropriate for the U.S. to override the U.K.’s judgment.
In 2020 then-Prime Minister Boris Johnson said of the treaty, “I do think there are elements of that relationship that are unbalanced and I certainly think that it is worth looking at.” More recently, Tom Tugendhat, the current UK Minister for State Security, has called for the treaty to be “rebalanced.”
It is worth noting that such changes would not be unprecedented. The U.K. has already amended the treaty once, in 2013, to include a “forum provision” that has provided the U.K. with a greater license to refuse extradition requests. Diplomats and national security officials of all stripes should therefore be concerned about the lasting negative impacts that could come if the United States continues to push the limits of the treaty.
The fact of the matter is, this dispute is at its essence a civil dispute and not a matter of national security. Using the treaty to aid in the prosecution of executives involved in an international business transaction is well outside the original intent of this treaty. This could in turn undermine British willingness to cooperate with other, more serious cases such as when the treaty was successfully used in the past to extradite the likes of Babar Ahmad and Syed Talha Ahsan for providing material support to terrorists, and Abu Hamza al-Masri for conspiring to establish a terrorist training camp and supporting jihad.
The United Kingdom and the United States have long enjoyed a close relationship that has been critical in maintaining global stability and promoting democratic values. With regards to such matters of international law, especially involving cases without any direct impact on national security, it is imperative that officials on both sides of the Atlantic avoid taking measures that would make it more difficult for the two countries to combat terrorism and other serious crimes.