Extradition Has Become a Hot Topic for the United States

Extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.  In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[1]

That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.[2]

Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S.[3] Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than  to note that extradition is the subject of 18 U.S. Code, Chapter 209.

U.S. Extradition Treaties

U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties.[4] While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

  • An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
  • A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
  • U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
  • Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals.   The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
  • Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.

U.S. Practice Regarding Foreign Government Requests for Extradition

The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.

  1. U.S. Department of State

The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.

  1. U.S. Department of Justice[5]

The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.

  1. U.S. Attorney

The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.

  1. U.S. District Court

The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.

The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.

At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.

At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.

If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.

Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.[6]

If there is no petition or it is denied, the court sends the certification to the Secretary of State.

  1. U.S. Secretary of State[7]

Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.

If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.

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[1] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).

[2] Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[3] See n.1.

[4] The U.S. currently has bilateral extradition treaties with 109 countries.

[5] Justice Dep’t, Office of International Affairs.

[6] A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.

[7] State Dep’t, Extradition.

Cuba and Nine Other Countries Reject Accreditation of Free Press Group To Participate in U.N. Meetings 

On May 26, a United Nations committee rejected, 10 to 6, an application for accreditation to attend U.N. meetings from the Committee to Protect Journalists (CPJ), an international, independent group that monitors attacks on journalists around the world and campaigns for the release of those who are jailed.[1]

The 10 negative votes came from Cuba along with Azerbaijan, Burundi, China, Nicaragua, Pakistan, Russia, South Africa, Sudan and Venezuela. The yes votes came from Greece, Guinea, Israel, Mauritania, the United States and Uruguay. The abstentions were by India, Iran and Turkey, the latter two having reputations for persecuting journalists.

At the committee meeting U.S. Ambassador Sarah Mendelson made a lengthy statement advocating accreditation for CPJ, which, she said, is “a reputable non-governmental organization that promotes press freedom worldwide and defends the right of journalists to report the news without fear of reprisal.” Such a group has shown that “a free press remains a critical foundation for prosperous, open, and secure societies, allowing citizens to access information and hold their governments accountable. Indeed, the Universal Declaration of Human Rights reiterates the fundamental principle that every person has the right ‘to seek, receive, and impart information and ideas through any media and regardless of frontiers.’”[2]

Afterwards the U.S. Ambassador to the U.N., Samantha Power, said, “It is increasingly clear that the NGO committee acts more and more like an anti-NGO committee.” She also said that the U.S. would appeal the committee’s decision to the full 54-member U.N. Economic and Social Council.

CPJ stated, “It is sad that the U.N., which has taken up the issue of press freedom through Security Council and General Assembly resolutions and through the adoption of the U.N. Action Plan, has denied accreditation to CPJ, which has deep and useful knowledge that could inform decision making. A small group of countries with poor press freedom records are using bureaucratic delaying tactics to sabotage and undermine any efforts that call their own abusive policies into high relief.”[3]

This April CPJ’s annual report ranked Cuba 10th on its list of the 10 Most Censored Countries. Key for this ranking was Cuba’s having “the most restricted climate for press freedom in the Americas. The print and broadcast media are wholly controlled by the one-party Communist state, which has been in power for more than half a century and, by law, must be ‘in accordance with the goals of the socialist society.'” In addition, CPJ stated, “The government continues to target critical journalists through harassment, surveillance, and short-term detentions.”[4]

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[1] Sengupta, Press Freedom Group’s Application for U.N. Accreditation is Rejected, N.Y. Times (May 26, 2016); Assoc. Press, UN Committee Denies Credentials to Press Freedom Group, N.Y. Times (May 26, 2016); Reuters, U.N. Panel Rejects Press Freedom Watchdog Accreditation Request, N.Y. Times (May 26, 2016).

[2] Mendelson, Remarks at the UN Committee on Non-Governmental Organizations Regarding the Accreditation of the Committee to Protect Journalists, U.S. Mission to the U.N. (May 26, 2016).

[3] CPJ, CPJ denied ECOSOC consultative status after vote in UN NGO Committee (May 26, 2016).

[4] Cuba Gets Low Marks on Press Freedom from Committee to Protect Journalists, dwkcommentaries.com (April 18, 2016).

The Latest U.S. Report on International Terrorism

 On July 31, 2012, the U.S. Department of State issued its latest annual report on terrorism in the world: Country Reports on Terrorism 2011. This post will review the report as a whole.

This report was submitted in compliance with 22 U.S.C. § 2656f, which defines “terrorism” for this purpose as ” premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents” while the term  “international terrorism” means “terrorism involving citizens or the territory of more than one country.”

The report included the following statistics on terrorists attack during the year:

Area Number of Attacks
Near East & South Asia    7,721
Africa       978
Europe & Eurasia       561
East Asia & Pacific       543
Western Hemisphere       480
     TOTAL   10,283

The report’s “Strategic Assessment ” section puts all of this into a worldwide context. It highlights the death of Osama bin Laden and other top leaders of al-Qa’ida as putting its “network on a path of decline that will be difficult to reverse.” However, its affiliated groups around the world increased their impact. Iran was also criticized for its lethal support of terrorism in Iraq and Palestine. Others specifically mentioned in this Assessment were certain terrorist groups in South-Asia, the Kurdistan Workers Party in Turkey, anarchists in Greece and Italy, dissident Republican groups in Northern Ireland and Anders Behring Breivik (the Norwegian right-wing extremist who killed 77 people last July).

The statutory authorization of this report requires the Department of State to identify countries that have “repeatedly provided support for acts of international terrorism” as “State Sponsors of Terrorism.” This year the following four countries were so designated: Iran, Sudan, Syria and Cuba. A subsequent post will examine this designation of Cuba.

A wide range of sanctions may be imposed as a result of a State Sponsor of Terrorism designation, including: (a) a ban on arms-related exports and sales; (b) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism: (c) prohibitions on economic assistance; and (d) imposition of miscellaneous financial and other restrictions.