WikiLeaks Document Release http://wikileaks.org/wiki/CRS-RS22702 February 2, 2009 Congressional Research Service Report RS22702 An Abridged Sketch of Extradition To and From the United States Charles Doyle, American Law Division August 6, 2007 Abstract. Extradition is the formal surrender of a person by a State to another State for prosecution or punishment. Extradition to or from the United States is a creature of treaty. The United States has extradition treaties with over a hundred of the nations of the world, but there are many with whom it does not. This is an overview of those treaties and of the procedures followed in this country in response to an extradition request or to request extradition from another country. ¡ ¢ http://wikileaks.org/wiki/CRS-RS22702 Prepared for Members and Committees of Congress ¡ ¢ Extradition is the formal surrender of a person by a State to another State for prosecution or punishment. Extradition to or from the United States is a creature of treaty. The United States has extradition treaties with over a hundred of the nations of the world, but there are many with whom it does not. This is an overview of those treaties and of the procedures followed in this country in response to an extradition request or to request extradition from another country. This is an abridged version of CRS Report 98-958, Extradition To and From the United States: Overview of the Law and Recent Treaties, by Charles Doyle, without the footnotes and citations to authority found in the longer report. http://wikileaks.org/wiki/CRS-RS22702 ¡ Contemporary U.S. Treaties ............................................................................................................ 1 Treaty Crimes............................................................................................................................ 1 Political Offenses ...................................................................................................................... 1 Capital Offenses ........................................................................................................................ 1 Want of Dual Criminality.......................................................................................................... 1 Extraterritoriality....................................................................................................................... 2 Nationality................................................................................................................................. 2 Double Jeopardy........................................................................................................................ 2 Lapse of Time............................................................................................................................ 2 Extradition from the United States .................................................................................................. 3 Hearing...................................................................................................................................... 3 Review ...................................................................................................................................... 4 Extradition to the United States....................................................................................................... 4 Specialty.................................................................................................................................... 5 http://wikileaks.org/wiki/CRS-RS22702 Alternatives to Extradition .............................................................................................................. 5 Waiver ....................................................................................................................................... 6 Immigration............................................................................................................................... 6 Irregular Rendition/Abduction .................................................................................................. 6 Foreign Prosecution .................................................................................................................. 6 Author Contact Information ............................................................................................................ 6 ¡ ¢ Subject to a contrary treaty provision, federal law defines the mechanism by which we honor our extradition treaty obligations. Although some countries will extradite in the absence of an applicable treaty as a matter of comity, the United States ordinarily will not. ¢ Extradition is generally limited to crimes identified in the treaty. Early treaties often recite a list of the specific extraditable crimes. While many of our existing extradition treaties continue to list specific extraditable offenses, the more recent ones feature a dual criminality approach, and simply make all felonies extraditable (subject to other limitations found elsewhere in their various provisions). http://wikileaks.org/wiki/CRS-RS22702 In addition to an explicit list of crimes for which extradition may be granted, most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied. Common among these are provisions excluding political offenses. The political offense exception has proven troublesome. The exception is and has been a common feature of extradition treaties for almost a century and a half. In its traditional form, the exception is expressed in deceptively simple terms. American courts require that a fugitive seeking to avoid extradition demonstrate that the alleged crimes were committed in the course of and incidental to a violent political disturbance such as a war, revolution or rebellion. Contemporary treaties often seek to avoid misunderstandings in a number of ways. They expressly exclude terrorist offenses or other violent crimes from the definition of political crimes for purposes of the treaty; they explicitly extend the political exception to those whose prosecution is politically or discriminatorily motivated; and/or they limit the reach of their political exception clauses to conform to their obligations under multinational agreements. A number of nations have abolished or abandoned capital punishment as a sentencing alternative. Several of these have preserved the right to deny extradition in capital cases either absolutely or in absence of assurances that the fugitive will not be executed if surrendered. ¢ Dual criminality exists when the two parties to an extradition treaty each punish a particular form of misconduct. Subject to varying interpretations, the United States favors the view that treaties should be construed to honor an extradition request if possible. Thus, dual criminality does not require that the name by which the crime is described in the two countries shall be same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions. When a foreign country seeks to extradite a fugitive from the United States dual criminality may be satisfied by reference to either federal or state law. Our treaty partners do not always construe dual criminality ¡ requirements as broadly. In the past, some have been unable to find equivalents for attempt, conspiracy, RICO, CCE, and crimes with prominent federal jurisdictional elements. Many modern extradition treaties contain provisions addressing the problem of jurisdictional elements and/or making extraditable attempt or conspiracy to commit an extraditable offense. Some include special provisions for tax and customs offenses as well. ¡¢ As a general rule, crimes are defined by the laws of the place where they are committed. There have always been exceptions to this general rule under which a nation was understood to have authority to outlaw and punish conduct occurring outside the confines of its own territory. In the past, our extradition treaties applied to crimes committed within the territorial jurisdiction of the country seeking extradition. Largely as a consequence of terrorism and drug trafficking, however, the United States now claims more sweeping extraterritorial application for our criminal laws than recognized either in our more historic treaties or by many of today's governments. Here, our success in eliminating extradition impediments by negotiating new treaty provisions has been mixed. More than a few call for extradition regardless of where the offense was committed. Yet http://wikileaks.org/wiki/CRS-RS22702 perhaps an equal number of contemporary treaties permit or require denial of an extradition request that falls within an area where the countries hold conflicting views on extraterritorial jurisdiction. ¢ The right of a country to refuse to extradite one's own nationals is probably the greatest single obstacle to extradition. The United States has long objected to the impediment and recent treaties indicate that its hold may not be as formidable as was once the case. A growing number go so far as to declare that extradition shall not be refused on the ground that the fugitive is a citizen or national of the Requested State. Another form limits the nationality exemption to nonviolent crimes; a third allows a conflicting obligation under a multinational agreement to wash the exemption away. Even where the exemption is preserved, contemporary treaties more regularly refer to the obligation to consider prosecution at home of those nationals whose extradition has been refused. ¢ Depending on the treaty, extradition may also be denied on the basis of a number of procedural considerations. Double punishment and/or double jeopardy (also know as non bis in idem) clauses are among these. The more historic clauses are likely to bar extradition for a second prosecution of the "same acts" or the "same event" rather than the more narrowly drawn "same offenses." The new model limits the exemption to fugitives who have been convicted or acquitted of the same offense and specifically denies the exemption where an initial prosecution has simply been abandoned. Lapse of time or statute of limitation clauses are prevalent as well. Many states preclude extradition if prosecution for the offense charged, or enforcement of the penalty, has become barred by lapse of time under the applicable law. Under some treaties the applicable law is that of ¡ the requested state, in others that of the requesting state; under some treaties extradition is precluded if either state's statute of limitations has run. When a treaty provides for a time-bar only under the law of the requesting state, or only under the law of the requested state, United States courts have generally held that time-bar of the state not mentioned does not bar extradition. If the treaty contains no reference to the effect of a lapse of time neither state's statute of limitations will be applied. Left unsaid is the fact that some treaties declare in no uncertain terms that the passage of time is no bar to extradition. In cases governed by American law and in instances of American prosecution following extradition, applicable statutes of limitation and due process determine whether pre-indictment delays bar prosecution and speedy trial provisions govern whether post-indictment delays preclude prosecution. ¡ A foreign country usually begins the extradition process with a request submitted to the State Department sometimes including the documentation required by the treaty. The Secretary of State, at his or her discretion, forwards the matter to the Department of Justice to begin the http://wikileaks.org/wiki/CRS-RS22702 procedure for the arrest of the fugitive. The United States Attorneys Manual encapsulates the Justice Department's participation thereafter in these words: "OIA [Office of International Affairs] reviews ... requests for sufficiency and forwards appropriate ones to the district where the fugitive is found. The Assistant United States Attorney assigned to the case obtains a warrant and the fugitive is arrested and brought before the magistrate judge or the district judge. The government opposes bond in extradition cases. A hearing under 18 U.S.C. 3184 is scheduled to determine whether the fugitive is extraditable. If the court finds the fugitive to be extraditable, it enters an order of extraditability and certifies the record to the Secretary of State, who decides whether to surrender the fugitive to the requesting government. In some cases a fugitive may waive the hearing process. OIA notifies the foreign government and arranges for the transfer of the fugitive to the agents appointed by the requesting country to receive him or her. Although the order following the extradition hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus as soon as the order is issued. The district court's decision on the writ is subject to appeal, and extradition may be stayed if the court so orders." The precise menu for an extradition hearing is dictated by the applicable extradition treaty, but a common check list for a hearing conducted in this country would include determinations that 1. There exists a valid extradition treaty between the United States and the requesting state; 2. The relator is the person sought; 3. The offense charged is extraditable; 4. The offense charged satisfies the requirement of double criminality; 5. There is probable cause to believe the relator committed the offense charged; 6. The documents required are presented in accordance with United States law, subject to any specific treaty requirements, translated and duly authenticated; and 7. Other treaty requirements and statutory procedures are followed. An extradition hearing is not, however, in the nature of a final trial by which the prisoner could be convicted or acquitted of the crime charged against him. Instead, it is essentially a preliminary examination to determine whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation. The judicial officer who conducts an extradition ¡ hearing thus performs an assignment in line with his or her accustomed task of determining if there is probable cause to hold a defendant to answer for the commission of an offense. The purpose of the hearing is in part to determine whether probable cause exists to believe that the individual committed an offense covered by the extradition treaty. The individual may offer evidence to contradict or undermine the existence of probable cause, but affirmative defenses that might be available at trial are irrelevant. The rules of criminal procedure and evidence that would apply at trial have no application. Hearsay is not only admissible but may be relied upon exclusively; the Miranda rule has no application; initiation of extradition may be delayed without regard for the Sixth Amendment right to a speedy trial or the Fifth Amendment right of due process; nor does the Sixth Amendment right to the assistance of counsel apply. Due process, however, will bar extradition of informants whom the government promised confidentiality and then provided the evidence necessary to establish probable cause for extradition. Moreover, extradition will ordinarily be certified without examining the requesting country's criminal justice system or taking into account the possibility that the extraditee will be mistreated if returned. http://wikileaks.org/wiki/CRS-RS22702 If at the conclusion of the extradition hearing, the court concludes there is some obstacle to extradition and refuses to certify the case, the requesting government's recourse to an unfavorable disposition is to bring a new complaint before a different judge or magistrate, a process it may reiterate apparently endlessly. If the court concludes there is no such obstacle to extradition and certifies to the Secretary of State that the case satisfies the legal requirements for extradition, the fugitive has no right of appeal, but may be entitled to limited review under habeas corpus. ¡ The laws of the country of refuge and the applicable extradition treaty govern extradition back to the United States of a fugitive located overseas. The request for extradition comes from the Department of State whether extradition is sought for trial in federal or state court or for execution of a criminal sentence under federal or state law. The Justice Department's Office of International Affairs must approve requests for extradition of fugitives from federal charges or convictions and may be asked to review requests from state prosecutors before they are considered by the State Department. The first step is to determine whether the fugitive is extraditable. The Justice Department's checklist for determining extraditability begins with an identification of the country in which the fugitive has taken refuge. If we have no extradition treaty with the country of refuge, extradition is not a likely option. When there is a treaty, extradition is only an option if the treaty permits extradition. Common impediments include citizenship, dual criminality, statutes of limitation, and capital punishment. Many treaties permit a country to refuse to extradite its citizens even in the case of dual citizenship. Whether the crime of conviction or the crime charged is an extraditable offense will depend upon the nature of the crime and where it was committed. If the applicable treaty lists extraditable offenses, the crime must be on the list. If the applicable treaty insists only upon dual criminality, the underlying misconduct must be a crime under the laws of both the United States and the country of refuge. ¡ Where the crime was committed matters; some treaties will only permit extradition if the offense was committed within the geographical confines of the United States. Timing also matters. The speedy trial features of U.S. law require a good faith effort to bring to trial a fugitive who is within the government's reach. Furthermore, the lapse of time or speedy trial component of the applicable extradition treaty may preclude extradition if prosecution would be barred by a statute of limitations in the country of refuge. Some treaties prohibit extradition for capital offenses; more often they permit it but only with the assurance that a sentence of death will not be executed. Prosecutors may request provisional arrest of a fugitive without waiting for the final preparation of the documentation required for a formal extradition request, if there is a risk of flight and if the treaty permits it. The Justice Department encourages judicious use of provisional arrest because of the pressures that attend it. If the Justice Department approves the application for extradition, the request and documentation are forwarded to the State Department, translated if necessary, and with State Department approval forwarded through diplomatic channels to the country from whom extradition is being sought. The treaty issue most likely to arise after extradition and the fugitive's return to this country is http://wikileaks.org/wiki/CRS-RS22702 whether the fugitive was surrendered subject to any limitations such as those posed by the doctrine of specialty. ¢ Under the doctrine of specialty, sometimes called speciality, a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings. The limitation, expressly included in many treaties, however, is designed to preclude prosecution for different substantive offenses and does not bar prosecution for different or additional counts of the same offense. And some courts have held that an offense whose prosecution would be barred by the doctrine may nevertheless be considered for purposes of the federal sentencing guidelines, or for purposes of criminal forfeiture. At least where an applicable treaty addresses the question, the rule is no bar to prosecution for crimes committed after the individual is extradited. The doctrine may be of limited advantage to a given defendant because the circuits are divided over whether a defendant has standing to claim its benefits. Regardless of their view of fugitive standing, they agree that the surrendering state may subsequently consent to trial for crimes other than those for which extradition was had. ¡ The existence of an extradition treaty does not preclude the United States acquiring personal jurisdiction over a fugitive by other means, unless the treaty expressly provides otherwise. ¡ Waiver or "simplified" treaty provisions allow a fugitive to consent to extradition without the benefit of an extradition hearing. Whether by a process similar to deportation or by simple expulsion, the United States has had some success encouraging other countries to surrender fugitives other than their own nationals without requiring recourse to extradition. Ordinarily, American immigration procedures, on the other hand, have been less accommodating and have been called into play only when extradition has been found wanting. They tend to be time consuming and usually can only be used in lieu of extradition when the fugitive is an alien. Moreover, they frequently require the United States to deposit the alien in a country other than one that seeks his or her extradition. Yet in a few instances where an alien has been naturalized by deception or where the procedures available against alien terrorists come into play, denaturalization or deportation may be considered an attractive alternative or supplement to extradition proceedings. http://wikileaks.org/wiki/CRS-RS22702 American use of "irregular rendition" is a familiar alternative to extradition. An alternative of last resort, it involves kidnapping or deceit and generally has been reserved for terrorists, drug traffickers, and the like. Kidnapping a defendant overseas and returning him to the United States for trial does not deprive American courts of jurisdiction unless an applicable extradition treaty explicitly calls for that result. The individuals involved in the abduction, however, may face foreign prosecution, or at least be the subject of a foreign extradition request. Moreover, the effort may strain diplomatic relations with the country from which the fugitive is lured or abducted. A final alternative when extradition for trial in the United States is not available is trial within the country of refuge. The alternative exists primarily when extradition has been refused in because of the fugitive's nationality and/or where the crime occurred under circumstances that permit prosecution by either country for the same misconduct. The alternative can be cumbersome and expensive and may be contrary to U.S. policy objectives. Charles Doyle Senior Specialist in American Public Law cdoyle@crs.loc.gov, 7-6968