The case of the day is United States v. Trabelsi (D.C. Cir. 2017). Days after the 9/11 attack, Nizar Trabelsi, a Tunesian national and former professional footballer, was arrested in Belgium. The policy searched his apartment and found an Uzi submachine gun and a list of chemicals used to make explosives. He was charged with conspiracy, destruction by explosion, possession of weapons of war, and belonging to a private militia. He was convicted and sentenced to ten years in prison.

In 2006, a grand jury incited Trabelsi in the United States. The indictment charged conspiracy to kill US nationals abroad, conspiracy and attempt to use weapons of mass destruction against US nationals abroad, conspiracy to provide material support to al Qaeda, a foreign terrorist organization, and providing material support to al Qaeda. The United States requested extradition from Belgium under the bilateral extradition treaty between the countries. The Belgian courts and the Minister of Justice agreed to the extradition, rejecting Trabelsi’s double jeopardy or non bis in idem argument.

Following extradition, Trabelsi moved to dismiss the indictment for violation of the extradition treaty, making the same argument he had made in Belgium. The District Court denied the motion, and Trabelsi appealed. (The appeal was permissible under an exception to the ordinary rule against interlocutory appeals that applies when a defendant makes a double jeopardy argument, even though Trabelsi’s argument arose as a question of the extradition treaty rather than as a question under the Double Jeopardy Clause).

The court rejected the government’s view that it had no jurisdiction to review the extradition and that the court was required to defer to Belgium’s decision to extradite. Rather, the court found it had jurisdiction to review, though it had to exercise “highly deferential” review and presume that the extradition was lawful. The kind of evidence that would be necessary to overcome the strong presumption could include, for example, US prosecutorial misconduct in procuring the extradition, a failure of the foreign state to review the extradition request, or a showing that the requested state did not apply the correct legal standard. Trabelsi argued this last point, and in particular, he argued that the Belgian court had misconstrued the word “offenses” in the treaty when determining whether the offenses with which he was charged in the US were valid predicates for extradition in light of the prior Belgian criminal conviction. The court, construing the history of the treaty’s ratification, found that “offenses,” as used in the treaty, means “offenses,” not “conduct.” Thus deference to the Belgian authorities was warranted.