Brazil’s former president Jair Bolsonaro was more than three thousand miles away in Florida when his supporters rioted in Brazil’s capital on January 8, a week after his rival, Luiz Inácio Lula da Silva, replaced him as president. But Bolsonaro clearly stoked the thousand-plus rioters with his false, denialist rhetoric, and Brazilian prosecutors are investigating whether his role rises to the level of criminal conduct. If it does, it will be important that he be held legally accountable.
The Biden administration is under increasing pressure from progressive leaders in Latin America and the US Congress to compel Bolsonaro to leave the United States. While the Biden administration needs to demonstrate moral leadership in upholding democracy and the rule of law, acting too hastily could fuel the flames of Brazil’s increasingly polarized politics and do more damage to democracy in the long term. In order to navigate this politically sensitive situation, the US government must follow established legal processes and ensure Bolsonaro does not undermine Brazilian democracy from US soil.
Ideally, Bolsonaro—who may have entered the United States on a diplomatic visa, which would have expired when his successor was sworn in on January 1—would simply return to Brazil voluntarily. He has said he plans to accelerate his planned departure at the end of January, which would resolve the problem.
Should Bolsonaro not leave voluntarily, it may take years to compel his departure, as the history of high-profile extradition requests to the US government shows. However, today there is hope that Bolsonaro will be persuaded to leave the United States of his own accord because of the possibility that he could face years of shameful publicity trying to stave off the extradition the Brazilian government, when it decides the time is right, is almost sure to seek.
While Bolsonaro would have ample opportunity to challenge the evidence against him in US courts before any action is taken to extradite or remove him, the Brazilian government would have an equal opportunity to make the case for Bolsonaro’s responsibility for the riots before the world’s media. The US government also would have the opportunity under US law to provisionally arrest Bolsonaro for at least several months, an indignity he may prefer to avoid.
Since 1964, the United States and Brazil have agreed by extradition treaty that each country must “deliver up” those charged with or convicted of certain enumerated crimes—which include destroying government property, as happened in Brasília—when committed within the territorial jurisdiction of the requesting country and when criminalized in both countries.
While there are some exceptions for when the offense is of a “political character,” the treaty notes that “[c]riminal acts which constitute clear manifestations of anarchism or envisage the overthrow of the bases of all political organizations will not be classed as political crimes or offenses.” It is unlikely that a court would rule that the exception for acts of a “political character” would apply in Bolsonaro’s case, if he is found culpable, because the incitement resulted in violence.
To avoid getting mired in political sensitivities, the Biden administration would be wise to pursue three immediate priorities.
1. Follow the law—even if it moves slowly
First, the White House should demonstrate what the rule of law looks like. If Bolsonaro chooses to stay in the United States, the Biden administration should urge the Brazilian government to initiate a formal extradition request. While it could be appealing to swiftly end Bolsonaro’s presence in the United States by exercising the authority that the president and the secretary of state have to declare him persona non grata (if he actually entered on a diplomatic visa) or to revoke his visa and have the Department of Homeland Security remove him, Bolsonaro would still have the right to contest that in court. In the end, little time would be saved if Bolsonaro wants to delay his return.
The question over Bolsonaro brings to mind one faced by the Obama administration in 2016, when Turkey’s government requested the extradition of Fethullah Gülen, a Turkish religious leader living in Pennsylvania, following a failed coup against Turkey’s government by some of Gülen’s supporters. However, despite repeated urging (including from then-Vice President Joe Biden) and expert-level consultations in which the Department of Justice explained US extradition requirements to Turkish counterparts, the Turkish government never presented evidence sufficient to convince a US magistrate to turn Gülen over to Turkey for trial.
Insistence on following established legal processes in the Gülen matter allowed the US government to navigate a politically sensitive situation without eroding the rule of law, even under serious pressure from the Turkish government.
While a formal extradition process for Bolsonaro would take several years to unfold, starting with the issuing of a warrant and a hearing to establish whether sufficient evidence exists to sustain the charge, this would keep Bolsonaro out of Brazil and, perhaps, allow for restrictions on his access to media and electronics that could be used to incite supporters to further violence.
From there, the process involves several layers of preliminary review by the US Department of State and a probable cause determination by the US Department of Justice before the case is forwarded to the US attorney for the district where the individual is located. An extradition order is not appealable, but Bolsonaro could petition for a writ of habeas corpus to ensure that he gets a hearing. The US secretary of state then makes the final decision whether to extradite.
The Biden administration should be clear that the length of the process is not any indication of US government reluctance to turn Bolsonaro over or interest in delaying the process. Bolsonaro’s status as a former head of state does not privilege or penalize.
2. Provide US law enforcement and intelligence support to Brazil
Second, the Biden administration should also support efforts to hold those responsible for the January 8 attack accountable for their assault on democracy by promising total cooperation from US law enforcement and intelligence agencies to share what they know, including any information regarding Bolsonaro’s role in instigating, directing, or supporting it.
A public announcement of US law enforcement’s full cooperation would have a chilling effect on Bolsonaro’s capacity to machinate disruptions to Brazil’s democracy from his current location in Orlando, Florida, given the ability, and obligation, of US law enforcement and intelligence agencies to prevent acts of violence or crime emanating from a foreign national on US soil.
3. Allow civil cases to run their course
Third, Bolsonaro no longer holds any official position, so in the United States, he is subject to US laws for civil damages—and the Biden administration should not shield him from culpability. His assets can be tied down or even frozen while US courts decide whether he is liable for the January 8 riots and subsequent events. He could also be required to give depositions and provide evidence about his own actions even outside of any criminal or extradition proceedings.
Life in the United States could quickly look less and less attractive for Bolsonaro. The threat of being cut off from his supporters while under the watchful eye of US law enforcement agencies may be the deciding factor in whether Bolsonaro decides to stay in the United States or go home. Either way, he will face justice.
Gissou Nia is a human rights lawyer and director of the Strategic Litigation Project at the Atlantic Council. Follow her on Twitter: @GissouNia.
Tom Warrick is a senior fellow at the Scowcroft Center for Strategy and Security’s Forward Defense practice at the Atlantic Council. He served in the Department of State from 1997 to 2007 and as a deputy assistant secretary in the Department of Homeland Security from 2008 to 2019. Follow him on Twitter: @TomWarrickAC.