File / AP

Extradition of Assata Shakur from Cuba unlikely despite restored ties

Exiles from both sides unlikely to face extradition, given political nature of alleged crimes, legal experts say

Soon after President Barack Obama announced the restoration of diplomatic ties with Havana on Wednesday, Cuba watchers began to raise questions over potential extradition orders U.S. exiles in Cuba, specifically regarding rights activist Assata Shakur — who has been living on the island for decades.

Shakur and other black activists, including Black Panther Party (BPP) founder Huey P. Newton, fled from U.S. intelligence and security agencies in the 1960s and 1970s to Cuba, which was sympathetic to socialist ideals. Now supporters of Shakur, also known as Joanne Chesimard, wonder what the future holds for the 67-year-old exile.

Questions have also been raised over Cubans who fled to the United States during the same period, especially those who allegedly took part in organizing the failed 1961 Bay of Pigs invasion.

But legal experts say extraditions from either country are unlikely to pass muster considering provisions contained in the extradition treaty the United States has with Cuba.

“The extradition treaty between the U.S. and Cuba went into force on March 2, 1905 … and was never revoked,” Douglas McNabb, an international criminal defense lawyer, told Al Jazeera. “Of course, when diplomatic relations were terminated, from a practical but not legal standpoint the extradition ceased between the two. But now that diplomatic relations are being renewed, the existing treaty is still in force and will not have to be renegotiated.”

This is an undated picture provided by the New Jersey State Police showing Assata Shakur - the former Joanne Chesimard - who was put on a U.S. government terrorist watch list on May 2, 2005.
New Jersey State Police / AP

Fidel Castro granted Shakur political asylum in 1984 after she was convicted of killing a New Jersey state trooper on May 2, 1973. Shakur has denied shooting Trooper Werner Foerster, saying she was shot once with both hands in the air and again in the back during the shoot out that left the car's driver dead, according to Democracy Now. Shakur's lawyer, Lennox Hinds, has argued there is no forensic evidence to prove she fired a gun that day.

She was handed a life sentence, but Shakur escaped prison with the help of fellow BLA members in 1979 and fled to Cuba where she has lived ever since.

Shakur was a member of the Black Liberation Army (BLA), an armed black nationalist group, and the Black Panther Party, a self-defense group meant to protect communities of color from police violence. Both groups were both targeted in the 1960s by a covert FBI program called COINTELPRO. In at least one known case, COINTELPRO led to trumped up attempted murder charges against members of black liberation groups, according to reports.

"Assata Shakur has maintained from the time she was arrested that she was a victim of a counter intelligence program by the FBI and that she was stopped on the New Jersey turnpike as result of her being targeted by FBI," Lennox Hinds, Shakur's attorney and a professor of criminal law at Rutgers, told Al Jazeera.

Following Obama’s announcement on Wednesday, New Jersey law enforcement officials said they hoped the renewal of ties would allow her extradition in order to finish her sentence.

“We view any changes in relations with Cuba as an opportunity to bring her back to the United States,” New Jersey State Police Col. Rick Fuentes said in a statement, adding that law enforcement offered a $2 million reward for information leading to her capture.

Last year, the FBI put Shakur on its Most Wanted list, also promising a $2 million reward. But legal experts said since Shakur's political asylum request was accepted by Cuba it could preclude any extradition possibilities.

“Article six of the extradition treaty says a fugitive criminal shall not surrender if the offense is of a political character,” McNabb said. “Cuba could say we can’t extradite her based on that … we determined a long time ago that it was politically oriented and we gave her political asylum.”

Other experts doubted whether Shakur’s crime would fall under that of a political character.

“Just because one country describes a crime as political doesn’t change the crime,” said Jim Harrington, attorney and director of the Texas Civil Rights Project. “It’s going to be very political with the police and FBI pushing for it … but it’s difficult to say at this time. I think this is an issue that is a couple years down the line.”

But because Fidel Castro had accepted Shakur’s request for political asylum, that point could become contentious, said Chris Jenks, a former Army attorney who served as a State Department legal adviser and now teaches at Southern Methodist University's law school.

It is the host country that makes the determination over whether the individual would be prosecuted for political reasons, said Hinds. And Cuba has determined that Shakur is a political refugee, so he believes there is little chance of an extradition. What's more, there is precedent for even a close ally to reject U.S. extradition requests based on determining it was for political reasons, he added.

Hinds cited the case of several members of the BPP who hijacked a passenger plane and diverted it to Algeria in 1972 after releasing the passengers in exchange for $1 million. They soon traveled to France and even though they were arrested for hijacking there, they were given a light sentence and were never extradited to the U.S. because they determined the individuals would face political persecution. 

As for Cubans exiled in the U.S., the political nature of any alleged crimes would be easier to prove, experts said. Among the thousands of Cubans who escaped to the U.S. during the Cold War were a few who assisted the U.S. with its disastrous Bay of Pigs operation.

“Attempting to overthrow a government seems more credible in terms of arguing that it is political than killing a police officer,” Jenks said.

Harrington said he believed that with new diplomatic ties would come a newly negotiated extradition treaty. “When going through diplomatic recognition, there would be discussions on the language of treaties,” he said.

And any new treaty must be approved by the Capitol Hill. Some analysts say that a Republican-dominated Congress would stall any legislation in an attempt to hold up the process — including a new extradition treaty.

The other question is whether there would even be a policy decision from the U.S. executive branch to use the extradition agreement.

“It would have to be a decision by Obama or the Justice Department,” Jenks said.

In either case, a decision on whether or not to request Assata’s extradition will be a "potentially awkward test of our newfound relationship with Cuba … for how normal our relations are getting and how quickly,” Jenks said.

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