Can President Romney Put the Lockerbie Bomber on Trial?

by Julian Ku

Reacting to the still-imminent fall of the Gaddafi regime in Libya, U.S. presidential candidate (and likely future president if you believe these polls) Mitt Romney has called for the extradition of the mastermind of Lockerbie bombing, Abdelbaset Mohmed Ali al-Megrahi, to the United States.  The demand raises an interesting dilemma.  Megrahi was tried and convicted in a special Scottish tribunal set up specifically for the Lockerbie case. He was serving time, and then released in the belief he was terminally ill. He miraculously recovered, however.  In any event, is there a double jeopardy problem?

The U.S. can try him separately without concerns about double jeopardy, unless the U.S. somehow officially can be held somehow responsible for the original trial. I don’t think it can, unless there is something about that original trial I am unaware of.  Still, a second trial would at least raise a policy dilemma. He was tried, convicted and sentenced. Would it really be appropriate to try him again, even if we could?

http://opiniojuris.org/2011/08/23/can-president-romney-put-the-lockerbie-bomber-on-trial/

5 Responses

  1. Response…There is no double jeopardy problem as a matter of international law because there has been no trial in the United States federal district court.  Even within the U.S., trial in a fed. dist. ct. does not preclude trial in a state court for a relevant crime arising out of the same facts, since the fed. govt. and state govts. are diff. sovereigns.  Human rights law merely precludes trial again by the same sovereign if the person has been finally convicted, etc.  E.g., ICCPR, art. 14(7).  Moreover, there is universal jurisd. in the U.S. (and state courts) re: crimes under C.I.L.

  2. Response…
    p.s.  Of course, a particular institution may have limited jurisdiction because of its constitutive instrument, e.g., the ICC re: complimentarity.  And states can agree not to prosecute after another state has done so in good faith, e.g., in a European treaty binding among the parties thereto and vis a vis their nationals.

  3. Is the proper word extradition?  I am not aware of an extradition treaty between the US and Libya.  So on what basis is he being handed over or is Romney using “loose language”.  Also, in extradition isn’t there a question of double criminality that would actually arise (what Megrahi did was not a crime in Libya at the time he did it).  I am not pleading for Megrahi but rather just trying to look at campaign trail political blather as opposed to (maybe) my legal blather.  Also aren’t there usually exceptions for the sending country about their own nationals (English Great Train Robbers marrying Brazilians to get Brazilian nationality so they could not be extradited back to England) or for political crimes.

    Or do we go away from that law enforcement stuff and try to put this in the armed conflict with Libya box or the Andersonian self-defense box?

    Best,
    Ben

  4. If you’re interested, Anthony Colangelo actually has an insightful article considering exactly these types of double jeopardy questions: http://lawreview.wustl.edu/inprint/86/4/colangelo.pdf.

  5. Harlan,

    Thank you for the very helpful citation.

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