ABOVE: Majid Kakavand

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Amir Ardebili, who we posted on here and here, is not the only Iranian being chased by U.S. prosecutors for activities he committed entirely outside the United States and which were legal in the country where they took place. Majid Kakavand, on whom we previously posted here, used a company of his in Malaysia to order electronic components from U.S. companies and then transshipped those components to Iran. He was provisionally arrested in France in March 2009 at the request of the United States and is currently in France, out of jail but unable to leave France, awaiting the French court’s decision on the U.S. extradition request.

According to this article in the New York Times, a hearing was held last week by a French court on the extradition request. Kakavand’s lawyers argued that Kakavand’s activities did not violate any laws of France or the European Union and that the items were innocuous items that were not useful in the defense industry. Because these items could be legally shipped to Malaysia without an export license and because the U.S. criminal information against Kakavand did not allege that the items in question were on the Commerce Control List or the United States Munitions List, this argument seems to have some force. Another hearing has been scheduled by the French court for February 17.

And as with the Ardebili case, the Iranians were quick to link the fate of Kakavand with an Iranian trial. In this case, the trial in question is a prosecution brought by Iran against a 24-year-old French academic, Clotilde Reiss, in connection with her alleged participation in opposition protests following the Iranian elections last June. Apparently, the concept of a fair trial is so foreign to Iran that it hasn’t occurred to the Iranian government that a French court might actually listen to defense arguments and make a decision based on the rule of law.

On Monday, a U.S. Federal District Court Judge in Delaware sentenced Amir Hossein Ardebili, who was the subject of this earlier post on Export Law Blog, to five years in prison, less time served and credit for good behavior, based on Ardebili’s guilty plea to U.S. charges arising out of attempted exports of military goods to Iran. During Ardebili’s statement at the sentencing hearing, he frequently burst into tears, even at one point crying so much that a break was taken.

Iran immediately denounced the sentence and announced that it would try three American hikers that wandered into Iran last summer, implicitly linking Ardebili’s fate to that of the three U.S. hikers now held in Iranian prisons According to an Iranian press agency, Iran Foreign Ministry spokesperson, Ramin Mehmanparast, said that the jail sentence handed down yesterday was “illegal.” Tehran has also argued that under international law officials in Georgia were obliged to return Ardebili to Iran rather than giving him to U.S. agents, reports Iran’s Press TV network.

Iran’s claim of a requirement to return Ardebili under international law is not quite on the mark since there really isn’t such a recognized right in extradition matters. As generally understood, international law holds that no country is obliged to extradite anyone. This understanding of international law explains why there are a hundreds of bilateral extradition treaties, although the U.S. does not have an extradition treaty with Georgia. That doesn’t mean that a country, such as Georgia, cannot voluntarily hand over someone in the absence of a treaty. However, that is normally only done after a representation of reciprocal treatment by the country requesting extradition.

U.S. law does permit, in limited circumstances, extradition from the United States in the absence of a treaty with the country requesting extradition. Under 18 U.S.C. § 3181(b) the U.S. will allow such extradition from the United States of foreign persons but only for violent crimes that are not deemed political offenses. Certainly the crime that Ardebili was alleged to have committed was not a violent crime and so an extradition of a person from the U.S. on export charges by a country without an extradition treaty would be illegal under U.S. law. This means that the U.S. couldn’t really make a commitment of reciprocal treatment to Georgia to support its request for a non-treaty extradition of Ardebili. If the situation were reversed, U.S. law would actually prohibit the extradition

The problem created here is that the shaky grounds for U.S. jurisdiction over Ardebili detract from our own country’s argument that Iran should return the hikers. After all, Iran’s claim of jurisdiction to hold the hikers is stronger than the U.S. claim of jurisdiction over Ardebili even if Iran’s substantive claim that the hikers broke the law is dubious. After all, the hikers were captured in Iran whereas Ardebili was lured into Georgia and arrested there.

ABOVE: Amir Ardebili captured on
surveillance video in Tbilsi, Georgia

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Amir Hossein Ardebili, an Iranian national, engaged in extensive negotiations from Iran and apparently on behalf of the Iranian government to export defense items from the United States to Iran. The U.S. companies, however, were sting operations set up by U.S. undercover agents. When the agents lured Ardebili from Iran to Tbilsi, Georgia, they arrested him in October 2007 and, seemingly with the cooperation of Georgian authorities, brought him back to the United States where he was secretly imprisoned and held under a sealed indictment.

Ardebili has pleaded guilty to charges, among other things, that he violated the United States Arms Export Control Act. In preparation for his sentencing on December 14, some of the sealed documents, including a redacted version of the indictment have been unsealed. Prior to the unsealing, the identity of the city where Ardebili was snatched had been undisclosed but it’s now clear that, as had been rumored, Ardebili had traveled to Georgia to meet with the agents.

The government’s sentencing memorandum, in an effort to obtain the maximum term of imprisonment possible, provides further details of the undercover investigation. Significantly, the memo stresses that the Ardebili was engaged in procurement activities for his sole customer, the government of Iran, which was seeking the items because it believed it was going to go to war with the United States.

Ardebili’s attorney has filed a motion for a downward variance from the sentencing guidelines, arguing that the 22 months already served in solitary confinement caused Ardebili to become clinically depressed. The motion further noted that all of Ardebili’s activities were legal in Iran, where they took place, and that he was acting “indirectly on behalf of the Government of Iran.”

What are we to make of the fact here that the defendant was acting in Iran on behalf of the Iranian government and was later taken by U.S. agents from Georgia to stand trial in the United States? After the Supreme Court decision in United States v. Alvarez-Machain, 504 U.S. 655 (1992), abduction of defendants from foreign countries in order to bring them to the United States to stand trial is legal. The doctrine of functional sovereign immunity from prosecution for acts taken on behalf of foreign governments is basically confined to high officials of those countries. And the U.S. takes the controversial position that it has criminal jurisdiction over anyone located in foreign countries trying to export items from the United States.

Of course, if the shoe were on the other foot, if an American businessman had been abducted by Iranian agents from a hotel in, say, Russia and then secretly held in solitary confinement for two years in Iran, you can bet your you-know-what that we would be screaming bloody murder. I am not a fan of the Government of Iran or its nuclear aspirations, but we really have to understand that if we employ extraordinary means such as were employed here then we will have no cause to complain when those same methods are used against U.S. citizens abroad.

Here is some of the surveillance video of the meeting between the U.S. agents and Ardebili in Georgia: