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A Primer on US Extradition Law

Last Updated: April 2009

Introduction

Legally speaking, extradition is defined as “the official surrender of an alleged criminal by one state or nation to another having jurisdiction over the crime charged; the return of a fugitive from justice, regardless of consent, by the authorities where the fugitive is found.” International extradition is generally “in response to a demand made by the executive of one nation on the executive of another nation. This procedure is generally regulated by treaties.” Black's Law Dictionary 623 (8th ed. 2004).

Ideally, extradition reflects a fundamental agreement between civilized states that sufficiently serious crimes must not go unpunished. However, even the earliest extradition treaties often involved other motives (e.g., in 1280 BC, the peace treaty between the Egyptian and Hittite empires allowed for forced repatriation of refugees), and in modern terms extradition procedures can result not only from heinous crimes, but a variety of other situations wherein a government wants to stage a display of its power (the “long arm” of its law) in prosecuting a political crime.

Extradition treaties span hundreds of countries at the present time, and this creates a certain amount of complexity. Extradition law as it relates to the United States is particularly complex, since the United States does not fall under a simplifying bilateral regional treaty like many nations in Europe, nor has it ratified the treaty creating the International Criminal Court (ICC).

Further, international law is not really that much like other kinds of “law,” since so many situations involve no real international authority, and thus, resolution of international legal cases usually amounts to more of a freewheeling international negotiation than an actual trial or hearing. Extradition challenges generally have two significant components: first, the contract dispute (did the treaty between the two countries allow for the extradition?) and jurisdiction in the destination country (was the extradition procedure unconscionable? If so, the country may be deprived of jurisdiction over the suspect by its own courts!)

A Not-So-Brief Summary of Current American Extradition Law

Normally, extradition may be sought only for an extraditable offense (that is, an offense included in an extradition treaty between the requesting state and surrendering state). See generally: Spatola v. United States, 925 F.2d 615, 619 (2d.Cir.1991) and Melia v. United States, 667 F.2d 300, 304 (2d Cir.1981). The determination of whether an offense is extraditable can be made in two possible ways. The most stringent method requires that the offense charged be identical to an offense listed in the extradition treaty. Alternatively, a nation can require that the acts contributing to the charge could sustain some other charge listed in the treaty under the laws of the surrendering nation, obviating the need for an identical treaty offense (see discussion of dual criminality, below). United States v. Medina, 985 F.Supp. 397 (S.D.N.Y., 1997); see also: In re Dubroca Y Paniagua, 33 F.2d 181 (D.C.Pa. 1929) (upholding extradition for seduction, a crime in both countries); see generally: Spatola, 925 F.2d at 619. In Medina, defendant Francisco Medina moved to dismiss his charges on the grounds that they were not covered under the extradition treaty between the United States and the Dominican Republic. Citing Johnson v. Browne (205 U.S. 309 at 316, 1907), the court further held that a foreign government's decision to extradite an individual in response to a request from the United States is not subject to review by United States courts. In Johnson, defendant Addison Johnson was captured in Canada, and indicted for conspiring to defraud the United States, and for importing Japanese silks without paying the full legal duty required. However, only the first offense fell within Canada's extradition treaty. As a result, the court found that Johnson could only be held for the extraditable offense. One court even went as far as to grant an extradited and incarcerated criminal “reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition.” United States v. Rauscher, 119 U.S. 407, 424 (1886).

One doctrine central to extradition considerations is that of specialty. Specialty doctrine “requires that an extradited defendant be tried for the crimes on which extradition was granted, and none other.” United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995); see also: Fiocconi v. Attorney General of the United States, 462 F.2d 475, 480 (2d Cir.1972), and United States v. Khan, 993 F.2d 1368, 1373 (9th Cir. 1993). The intent of specialty doctrine is to prevent subjection of surrendered persons to indiscriminate prosecution by a receiving state. Determination of whether specialty requirements are satisfied falls to the requesting state, which must decide whether the surrendering/asylum state would find the prosecution in question to be a breach of the extradition order. See: Fiocconi at 480.

It remains unsettled as to whether an extradited defendant can raise a defense based on violation of an extradition treaty by way of the specialty doctrine. The 10th Circuit has held that the defendant has standing to raise this issue (see: the 1990 case of United States v. Levy, 905 F.2d 326, and the 1995 case of United States v. Puentes, 50 F.3d 1567 at 1572), while the 5th Circuit has held that only the surrendering nation may raise the issue of treaty violation (see: the 1989 case of United States v. Kaufman, 874 F.2d 242).

Another doctrine relevant to extradition considerations is dual criminality, which refers to the requirement that an extraditable offense be a serious crime that is punishable under the criminal laws of both the requesting and asylum/surrendering state. Lo Duca v. United States, 93 F.3d 1100, 1111 (2d Cir. 1996). Dual criminality does not require criminal laws in the two countries to be identical; rather, the charged acts must simply be considered serious crimes in both nations. Id. at 1112.

Note that the doctrines of specialty and dual criminality will be at odds in a great many situations. The modern trend is to invoke dual criminality doctrine, and not specialty doctrine, in extradition treaties. In fact, all recent United States extradition treaties have been dual criminality treaties. U.S. Department of State Foreign Affairs Manual Volume 7: Consular Affairs at http://foia.state.gov/masterdocs/07fam/07m1610.pdf. Similarly, minor differences in crime elements are likewise dealt with in treaties, such as the state-line-crossing requirements for some federal crimes in the United States, which obviously do not apply to countries not made up of individual states.

For any extradition order to be certified under United States law, a judicial officer must determine that there is sufficient evidence to sustain the charge under the applicable treaty. The standard used by the judicial officer is that of a reasonable belief of guilt of the crime charged; whether the foreign court would likely convict the defendant is not taken into consideration by the judicial officer. 18 U.S.C.A. § 3184. However, whether the offense falls within an extradition treaty is up to the asylum or surrendering country. State v. Pang, 118 S. Ct. 628 (1997). This determination is a mixed question of law, and of fact. Terlinden v. Ames, 22 S. Ct. 484 (1902).

The general terms within an extradition treaty are not confined to a common law meaning. Rather, the law of the two countries is used for determination. In re Shapiro, 352 F.Supp. 641 (D.C.N.Y., 1973). Treaty terms are construed as necessary to give effect to the apparent intentions of the nations. See: U.S. ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726 (C.A.Hawaii 1975) and In re Edmondson, 352 F.Supp. 22 (D.C.Minn.1972). If two interpretations are possible, the interpretation that enlarges the claimed rights is preferred. See: Factor v. Laubenheimer, 290 U.S. 276 (1933).

The question of whether the charged offense falls under the extradition treaty (and indeed, the larger question of whether or not the fugitive should be surrendered), once decided by the surrendering country, is binding and the issue cannot be raised again in the courts of the requesting country. Greene v. United States, 154 F. 401 (C.C.A. 5th Cir. 1907). If there are factually intertwined crimes where only one is enumerated in an extradition treaty, both are extraditable. See: Extradition of Matus, 784 F. Supp. 1052 (S.D.N.Y. 1992) (wherein extradition to Chile was granted based on both extraditable tax offenses and otherwise non-extraditable false declarations to the Central Bank of Chile, given that the underlying actions by the defendant were common to both crimes).
Similarly, if a crime not enumerated in an extradition treaty is joined in a complaint, the complaint may still be found lawful. This is because the court will not presume that the requesting government will punish the individual for an unenumerated crime; such a presumption would likewise presume bad faith on the part of the requesting government in the form of a treaty violation. See: Bingham v. Bradley, 36 S. Ct. 634 (1916) (upholding extradition to Canada based on distinct charges of receiving stolen goods and retaining stolen goods despite the fact that only the former charge was covered under the applicable extradition treaty).

Time Constraints

If a court finds a defendant to have been fugitive from justice, the statute of limitations may be tolled and the individual found to be extraditable even after the normal statutory period of time. See: Caplan v. Vokes, 649 F.2d 1336 (9th Cir. 1981).

Conversely, delays in apprehension on the part of either nation when the location of the defendant is known may be grounds for release of the defendant. See, for example: In re Mylonas, 187 F. Supp. 716 (N.D. Ala. 1960) (wherein the Greek government waited more than three years after initiation of prosecution before taking steps to apprehend the defendant, despite having knowledge of the defendant's location; the defendant was discharged as a result and the complaint dismissed). Such “lapse of time” exceptions are often stipulated within extradition treaties. Exceeding such a lapse of time is not construed as denial of the right to a speedy trial, as no such right exists in the context of international extradition proceedings. See, for example: Yapp v. Reno, 26 F.3d 1562 (11th Cir. 1994).

Evidence

The admissibility of evidence is generally dictated by the extradition treaty. However, the standards of admissibility of the requesting nation are not relied upon. See: United States v. Kin-Hong, 110 F.3d 103 (1st Cir. 1997). In Kin-Hong, defendant Kin-Hong argued that statements implicating the accused in bribery were inadmissible in the extradition proceeding because they would not be admissible in the courts of Hong Kong, the requesting nation. However, the court held that the evidence taken in a probable cause hearing need not meet the standards for admissibility at trial because an extradition hearing involves a preliminary examination of the evidence and is not a trial (citing Charlton v. Kelly, 229 U.S. 447, 461, 33 S.Ct. 945, 949-50 (1913) and Romeo v. Roache, 820 F.2d 540, 544 (1st Cir.1987)).

Circumstantial evidence may be relied upon since only a finding of probable cause is necessary in an extradition hearing. See: Austin v. Healey, 5 F.3d 598 (2d Cir. 1993). Similarly, hearsay evidence, which is ordinarily not admissible, may be admitted in an extradition hearing. See: United States ex rel. Klein v. Mulligan, 50 F.2d 687 (C.C.A. 2d Cir. 1931) and Mainero v. Gregg, 164 F.3d 1199 (9th Cir. 1999). For a more detailed analysis of evidentiary standards, identification procedures, depositions, and witness credibility, see: AMJUR EXTRADITN § 104.

Comity

A surrendering state may also grant extradition outside of an extradition treaty as an act of international comity. United States courts have held that “a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled.” Factor v. Laubenheimer at 287. When such acts of comity occur, the extradited individual is not entitled to be discharged on habeas corpus, and no personal rights have been violated by such an event. See: United States v. Neustice, 452 F.2d 123 (C.A.9, 1971). Specialty doctrine requirements may also be waived by the surrendering country in the interest of international comity. See: United States v. Fowlie, 24 F.3d 1059, 1064 (9th Cir.1994). The United States is somewhat unique in that it grants extradition only for extraditable offenses as determined by United States courts according to the applicable treaty, and will not grant an extradition purely in the interest of comity. 18 U.S.C. § 3184. See also: Extradition of Matus at 1054.

Asylum/Refusal to Extradite

If no extradition treaty exists between two nations, a nation may either surrender the fugitive, or grant asylum to the fugitive by declining to surrender him. Granting asylum in such a situation does not breach international law. See: United States ex rel. Donnelly v. Mulligan, 74 F.2d 220 (C.A.2 1934). While a state has a right to offer asylum to a fugitive, the fugitive has no inherent right to asylum from a nation. See: Chandler v. United States, 171 F.2d 921 (C.A.1 1949). Such a right to asylum may be granted by a treaty, however. Collins v. O'Neil, 214 U.S. 113 at 123 (1909).

Some nations such as France, Germany, Japan, and China categorically refuse to extradite their own nationals to another nation to face justice. These countries will attempt to prosecute a national for crimes committed abroad, just as if the crime was committed in the home country of the national, on the request of the nation alleging the crimes. This can be problematic for acts that are illegal abroad but legal in the home nation, or for acts with widely disparate penalties between the two nations in question. Note that the United States will extradite its own nationals when extradition complies with the applicable extradition treaty. See: Charlton v. Kelly, 229 U.S. 447, 467 (1913).

Many foreign countries that oppose capital punishment will not agree to extradite a defendant to the United States if there is any possibility of the defendant receiving a death sentence. However, these nations will often grant extradition if the United States stipulates that it will not seek the death penalty against the defendant. Additionally, some countries will not grant extradition based on a conviction resulting from a trial in absentia. Both these issues were at the forefront of the case of Ira Einhorn, a 1960's anti-war activist convicted of the 1977 murder of Holly Maddux. Einhorn fled to Europe days before his trial, and was not located again until 1997 when he was found living in France under an assumed name. Einhorn fought extradition to the United States, arguing both that he would face the death penalty there, and that French law requires a second trial whenever a defendant is convicted in absentia. The extradition request was thus rejected by a French court of appeals. To circumvent the first problem, United States authorities made it clear that no death penalty existed at the time of the murder, and so Einhorn would face no such penalty. The issue of a second trial would prove more difficult, however.

To resolve the second trial issue, the legislature in Pennsylvania (where Einhorn had been convicted many years earlier) passed “the Einhorn Law” which allowed a defendant convicted in absentia to request a second trial. The bill was attacked by Einhorn as unconstitutional as it would involve the legislature overruling the final judgment of a court. The French court subsequently found itself incompetent to rule on whether a foreign law was constitutional under a foreign constitution, and Einhorn was extradited, and convicted again in his second trial. Ira Einhorn at http://en.wikipedia.org/wiki/Ira_Einhorn.

Political Offenses

Political offenses (crimes directed against the security or government of a nation, such as treason, sedition, espionage, murder during a revolution, etc.) are generally excepted from extradition. Black's Law Dictionary 1196-7 (8th ed. 2004). The court in In re Ezeta (62 F. 972, D.C.Cal. 1894) cited John Stuart Mill's definition of a political offense, namely “any offense committed in the course of or furthering of civil war, insurrection or political commotion.” Ezeta at 998. The definition “political offense” seems to lie at the core of all political offense extradition cases.

One particularly prominent political offense case was In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty by the Government of the United Kingdom of Great Britain and Northern Ireland (599 F.Supp. 270, D.C.N.Y., 1984) which is representative of many extradition cases between the United States and Britain in the 1980's. Defendant Joseph Doherty was a member of the Irish Republican Army (IRA). He was convicted in Northern Ireland in 1981 for the murder of a British SAS captain, attempted murder of other SAS officers, illegal possession of firearms and ammunition, and for offenses relating to his escape from a prison in Belfast, wherein Doherty escaped from custody by dressing in a guard uniform and tricking soldiers into holding their fire by shouting that he was a policeman. I.R.A. Fugitive Fights Extradition, New York Times, Apr. 3, 1984, at http://query.nytimes.com/gst/fullpage.html?res=9505E1D91F39F930A35757C0A962948260. Doherty was later apprehended by the United States Immigration and Naturalization Service in New York City, and the British government filed a formal extradition request.

In responding to Doherty's argument that the murder was a political crime, the court laid out several factors for determining whether an offense is political in nature. First, the nature of the act must be assessed, along with the context in which it is committed, the status of the party committing the act, the nature of the organization for which it is committed, and the particularized circumstances of the place where offense occurred. Doherty at 275. The court noted “no act [would] be regarded as political where the nature of the act is such as to be violative of international law, and inconsistent with international standards of civilized conduct.” Doherty at 274. Ultimately, Doherty's acts were found to be political offenses because they were “under the direction of the PIRA and to effect its purposes rather than those of Doherty himself.” The Doherty case is fairly typical of political offense cases and the analysis performed therein.

Effects of New Countries Inheriting Former Treaties

As with any treaty, dramatic change to a nation's government can threaten the integrity of an extradition treaty. However, American courts have been reluctant to excuse performance of extradition in such circumstances, perhaps to reinforce the importance of treaties being consistently enforced despite such governmental change. One recent exemplary case, United States v. Kin-Hong (110 F.3d 103, C.A.1 1997) dealt with Hong Kong's reversion to the control of Communist China. Defendant Lui Kin-Hong faced extradition to Hong Kong shortly before reversion of control of said nation to Communist China. Lui argued that an order to surrender him to Hong King would effectively condemn him to trial and punishment in the People's Republic of China. Lui further argued that the Senate could not have intended such a result when it approved the extradition treaty between the United States and Hong Kong.

The court found Lui's argument unpersuasive, stating that “[t]he Senate was well aware of the reversion when it approved a supplementary treaty with the United Kingdom in 1986. The Senate could easily have sought language to address the reversion of Hong Kong if it were concerned, but did not do so.” The court concluded that “governments of our treaty partners often change, sometimes by ballot, sometimes by revolution or other means, and the possibility or even certainty of such change does not itself excuse compliance with the terms of the agreement embodied in the treaties between the countries.” Lui's extradition order was affirmed. U.S. v. Kin-Hong, 110 F.3d 103 at 106.

At least one justice disagreed; Judge Stahl, in his dissent, wrote that the governmental change “represents a situation in which sovereignty over a particular territory, Hong Kong, will revert from one sovereign, the United Kingdom, with whom the United States has signed and ratified an extradition treaty, to another sovereign, the People's Republic of China, with which the United States currently has no such treaty relationship” and so was not the same as a normal governmental change described above. Id. at 129.

Forcible Transnational Abductions

Perhaps the earliest forcible transnational abduction to United States history was that of John Surratt, a conspirator in a plot to kidnap President Lincoln, and believed to be a conspirator in his assassination. Surratt fled to Canada, followed by England, Italy, and later Egypt. Surratt was recognized in Alexandria, Egypt, and abducted by United States agents in Alexandria, Egypt, in 1866 and returned to the United States for trial (he was later acquitted). John Surratt at http://en.wikipedia.org/wiki/John_Surratt.

As discussed previously, the Supreme Court has held that a defendant cannot be prosecuted in violation of the terms of an extradition treaty (see: Rauscher). But in Ker v. Illinois (119 U.S. 436, 1886), wherein defendant Ker was kidnapped from Lima, Peru and return to the United States to face charges of larceny and embezzlement, the court found that a forcible transnational abduction falls outside of the scope of a treaty, and so the court had jurisdiction to prosecute Ker. Ker had argued that his kidnapping was in violation of an 1870 treaty with Peru. However, the court found that extradition papers were never presented to Peruvian officials, and that the abduction took place “without any pretense of authority under the treaty or from the government of the United States.” Ker at 443. The court also pointed out that this did not leave Peru, or Ker, without legal recourse; Peru retained the right to prosecute the kidnapping party for trespass, and Ker retained the right to sue the kidnapping party for trespass and false imprisonment. Note, however, that the doctrine established by Ker does assume that the extradition treaty in question does not prohibit abduction.

In Frisbie v. Collins, 342 U.S. 519 (1952), the court upheld the Ker doctrine despite objections based on the Due Process Clause and the Federal Kidnapping Act, stating "This Court has never departed from the rule announced in [Ker] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction. The strengthened Ker-Frisbie doctrine resulting from theFrisbie case is known as the Ker-Frisbie doctrine, and has been pivotal to forcible transnational abduction cases during the half century since. It is worth noting, however, that no formal protests from the territory in which the defendant was abducted were received in either Ker or Frisbie, which may represent a limitation on the doctrine.

The Ker-Frisbie doctrine may have additional limits. In United States v. Toscanino (500 F.2d 267, C.A.N.Y. 1974), defendant Francisco Toscanino was convicted of various drug offenses and sentenced to 20 years in prison. However, Toscanino alleged that “American agents... kidnapped him in Uruguay, used illegal electronic surveillance, tortured him and abducted him to the United States for the purpose of prosecuting him here” and that due to the egregious nature of his capture and transport, the court lacked jurisdiction over him. The court, citing Rochin v. California (342 U.S. 165, 1952) and Mapp v. Ohio (367 U.S. 643, 1961), held that a recent expansion of due process rights by the Supreme Court conflicted with Ker-Frisbie doctrine in a case such as this. The court also differentiated Toscanino from Kerand Frisbie in that it was in violation of a treaty and not external to one, finding that “Department of State, Treaties in Force 402-03 (1973), obligates ‘All Members' to ‘refrain . . . from the threat or use of force against the territorial integrity of political independence of any state...'” However, the court prefaced this distinction with the phrase “If distinctions are necessary...” In essence, in finding in favor of the defendant, the Toscanino court apparently added an exception to Ker-Frisbie doctrine when the circumstances of the rendition are patently unconscionable. Toscanino was later affirmed by U.S. v. Herrera (504 F.2d 859, C.A.Ga. 1974).

However, the same court later clarified Toscanino with the following language: “Yet in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court.United States ex rel Lujan v. Gengler (510 F.2d 62 at 65, C.A.N.Y. 1975). Further, it is important to note that Toscanino has never been affirmed by the Supreme Court.

The 7th Circuit has not acknowledged any such brutality exception, as was made clear by the denial of certiorari (Matta-Ballesteros v. Henman, 498 U.S. 878, 1990) in the case of Matta-Ballesteros ex rel. Stolar v. Henman (697 F.Supp. 1040, 1988). Defendant Juan Ramon Matta-Ballesteros alleged that during transport back to the United States from Honduras, his abductors “beat him on the head, back and arms and burned him with a 'double pronged electric.'” The court nonetheless upheld jurisdiction citing Ker-Frisbie doctrine, and the 7th Circuit denied certiorari on Matta-Ballesteros' subsequent appeal. Id.

A recent high-profile case of forcible transnational abduction is that of Dr. Humberto Alvarez-Machain, a Mexican physician who allegedly assisted an infamous drug-trafficking group with the 1985 murder of undercover DEA agent Enrique Camarena Salazar by "prolonging Agent Camarena's life so that others could further torture and interrogate him." United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992). When Mexico did not move to prosecute or extradite Alvarez-Machain despite the egregious nature of the crime, DEA agents aided by Mexican nationals abducted Alvarez from Mexico in 1990 to stand trial in United States District Court in Los Angeles, California. In contrast to the Ker and Frisbie cases, in which no protest was received from the source territories, the Mexican government issued intense protests including requesting extradition of the abducting DEA agents.

Alvarez-Machain's defense relied upon the illegality of his arrest, and the fact that such abductions could potentially undermine the utility of extradition treaties, but the court rejected this argument. International concern was raised when the United States Supreme Court ruled that Alvarez-Machain could be tried under the Los Angeles District Court's jurisdiction, citing the Ker-Frisbie doctrine to establish that the manner by which the accused is brought before the court does not adversely affect the court's jurisdiction. Many in the international community feared that this decision would encourage further abductions of foreign citizens by the United States.

Alvarez-Machain was acquitted, and subsequently sought civil tort relief against the United States government and a Mexican national by the name of Sosa under the Alien Tort Statute (28 U.S.C. §1350), citing his kidnapping, arbitrary arrest, and detention. Alvarez-Machain's case once again came before the U.S. Supreme Court (124 S. Ct. 2739), which ruled that Alvarez-Machain was not entitled to recover damages from Sosa. The court, in a controversial decision, held that claims founded on any injury suffered in a foreign nation were barred by the Federal Tort Claims Act's exception to waiver of sovereign immunity for claims arising in a foreign country (28 U.S.C. § 2680(k)), regardless of where the tortious act transpired. Adler, J., Sosa Justice, Jul. 21, 2004, at http://www.nationalreview.com/adler/adler200407210842.asp.

Lures

As with forcible transnational abduction, luring a fugitive into the United States or to international waters does not diminish the jurisdiction of United States courts to prosecute that fugitive. In the past fugitives have typically been lured to extraditable locations using invitations to a party in the United States, or invitations to participate in a drug deals in international waters. One famous case is that of United States v. Yunis (859 F. 2d 953, D.C.Cir. 1988), wherein the FBI and CIA lured terrorism suspect Fawaz Yunis to a fake drug deal in international waters near Cyprus. Yunis' challenge to the court's jurisdiction was unsuccessful, as have been all others.

Extraordinary Rendition

Amnesty International has recently alleged the “secret transfer of terror suspects into the custody of other states – including Egypt, Jordan and Syria – where physical and psychological brutality feature prominently in interrogations. The [extraordinary] rendition network’s aim is to use whatever means necessary to gather intelligence, and to keep detainees away from any judicial oversight.” Several other human rights violations are alleged in connection with said rendition network. Below the radar: Secret flights to torture and ‘disappearance', Apr. 5, 2006, at http://web.amnesty.org/library/index/ENGAMR510512006. According to a recent article in the Washington Post: Members of the [CIA Counter-terrorism Center's] Rendition Group follow a simple but standard procedure: Dressed head to toe in black, including masks, they blindfold and cut the clothes off their new captives, then administer an enema and sleeping drugs. They outfit detainees in a diaper and jumpsuit for what can be a day-long trip. Their destinations: either a detention facility operated by cooperative countries in the Middle East and Central Asia, including Afghanistan, or one of the CIA's own covert prisons -- referred to in classified documents as "black sites," which at various times have been operated in eight countries, including several in Eastern Europe.
Further, the Post article alleges that the CIA inspector general is investigating a growing number of what it calls "erroneous renditions," according to several former and current intelligence officials. D. Priest, Wrongful Imprisonment: Anatomy of a CIA Mistake, Washington Post, Dec. 4, 2005, at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html.

One prisoner recently released from the US military facility at Guantanamo Bay is an Egyptian born Australian citizen named Mamdouh Habib, who alleges that he was captured by a CIA team in Pakistan in 2001 and sent to Egypt where he was interrogated using torture. He was later sent to Guantanamo Bay and released without being charged with any crime. Id. This former prisoner obviously has reasons for animosity toward the United States, and it is difficult to determine how authoritative his accusation is. The Council of Europe's Human Rights Commissioner Alvaro Gil-Robles has suggested the possibility of network of sites in Europe similar to Camp Bondsteel, a “Guantanamo Bay-type detention center” in Kosovo. US ran Guantanamo-style prison in Kosovo - Council of Europe envoy, Forbes Magazine, Nov. 25, 2005, at http://www.forbes.com/work/feeds/afx/2005/11/25/afx2354167.html. (These sites may fall under the heading of extraordinary rendition, but only if they lie outside of control of the United States and thus a transfer of a prisoner to such a site would move the prisoner outside of American custody; Camp Bondsteel is clearly under United States control, and thus inapposite to the topic of extraordinary rendition.)

However, recent investigations by the European Parliament into reports of US agents shipping prisoners through European airports to secret detention centers have produced no evidence of the alleged CIA activities. Likewise, no proof was found of secret renditions of terror suspects on EU territory. Meanwhile, the United States has neither confirmed nor denied the existence of such renditions. EU official: No evidence of illegal CIA action, Boston Globe, Apr. 21, 2006, at http://www.boston.com/news/world/europe/articles/2006/04/21/eu_official_no_evidence_of_illegal_cia_action/.

More details on the “black sites” to which the prisoners were allegedly delivered (both in Europe, and elsewhere), the CIA-operated planes implicated, and the controversy in general can be found at Wikipedia's Black site at http://en.wikipedia.org/wiki/Black_site. This is clearly a contentious issue, and substantiating or disproving acts of extraordinary rendition by the United States is outside the scope of this article. However, a legal analysis of the hypothetical legality of extraordinary rendition is relevant, and will hopefully provide additional context to the topic of forcible transnational abductions discussed previously.

A discussion of the law underlying extraordinary rendition begins in June of 1995, when President Clinton signed Presidential Decision Directive 39, which states:
When terrorists wanted for violation of U.S. law are at large overseas, their return for prosecution shall be a matter of the highest priority and shall be a continuing central issue in bilateral relations with any state that harbors or assists them...If we do not receive adequate cooperation from a state that harbors a terrorist whose extradition we are seeking, we shall take appropriate measures to induce cooperation. Return of suspects by force may be effected without the cooperation of the host government, consistent with the procedures outlined in NSD-77 [National Security Directive 77], which shall remain in effect.


National Security Directive 77 was issued by President George W. Bush in January 1992, and its title and contents remain classified. National Security Directives (NSD) [Bush Administration, 1989-93], Federation of American Scientists Intelligence Resource Program, at http://www.fas.org/irp/offdocs/nsd/index.html.

The primary treaty dealing with this intersection of rendition and torture is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), which went into effect in June 1987. 141 countries are presently party to UNCAT, and another ten having signed, but not yet ratified it. United Nations Convention Against Torture from http://en.wikipedia.org/wiki/UNCAT. Of particular relevance to the topic of extraordinary rendition is Article 3 of UNCAT, which states:
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Also of relevance is Article 16, which states:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Article 2 further provides that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

If extraordinary rendition is occurring, it potentially runs afoul of Article 3, given that there are definitely substantial grounds for believing that the transferee would be in danger of being subjected to torture; indeed, torture would be the purpose of the transfer, and thus a virtual certainty. And given the explicit nature of Article 2, the circumstances of the renditions (namely, in the context of the War on Terror) do not excuse behavior outside the proscription of Article 3.

However, a significant question arises relating to rendition of a prisoner to a fellow UNCAT signatory nation. Given that the receiving nation is also bound by Articles 2, 3, and 16 of UNCAT, can there be “substantial grounds for believing that [the transferee] would be in danger of being subjected to torture” in any countries but those with the worst human rights track records? It goes without saying that most nations lack “a consistent pattern of gross, flagrant or mass violations of human rights” as specified in Article 3. Further, assuming such bad faith on the part of a signatory receiving/requesting nation despite the explicit guarantee of UNCAT runs afoul of the opposite presumption established in Bingham v. Bradley. This question will likely remain unanswered unless persuasive proof of extraordinary rendition is presented to the Office of the High Commissioner on Human Rights (UNHCHR), the organization responsible for enforcing the UNCAT treaty.

It is worth noting that the United States left some flexibility in its ratification of UNCAT; the ratification contained several reservations, including:
That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
and:
That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, United Nations, from: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/treaty14.asp#N2.

These reservations may give the United States some maneuvering room as far as whether extraordinary rendition violates Article 3 and/or Article 16 of UNCAT. Barring candid testimony from a CIA operative who actually spoke to the torturers or had reason to know of the possibility of torture, the “more likely than not” standard may be difficult to meet given the countervailing force of the recipient country being signatory to UNCAT. Note that Senator John McCain recently offered an amendment intended to make extraordinary rendition by the United States illegal, but critics allege that the amendment left numerous loopholes, which would render the resulting law powerless to stop the practice. A. McCoy, Invisible in Plain Sight: CIA Torture Techniques Go Mainstream, Amnesty International Magazine, at http://72.14.203.104/search?q=cache:FHejolUBMyMJ:www.amnestyusa.org/magazine/invisible_in_plain_sight.html+mccain+%22extraordinary+rendition%22&hl=en&gl=us&ct=clnk&cd=15.

Unlawful Combatants

The term unlawful combatants originates in Ex parte Quirin (317 U.S. 1, 1942), which concluded that “[o]ne who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such." The Bush administration has used this categorization to capture and detain suspected terrorists without the necessity of granting the rights normally customarily allowed a soldier (i.e., a lawful combatant) under the laws of war, or the civil rights guaranteed to a citizen suspected of a crime. Article 4 of the Third Geneva Convention (GCIII, ratified soon after Quirin) reinforces this definition, as the suspected terrorists do not fall into any of the listed categories. (The complete text of Article 4 is available at http://en.wikisource.org/wiki/Third_Geneva_Convention#Article_4.) However, if the status of a detainee does not obviously fall into one of the Article 4 categories, the detainee must be assumed to be a lawful combatant until a “competent tribunal” decides otherwise. These tribunals are discussed in more detail below.

Most of the controversy about those detained under unlawful combatant status relates to their lack of access to counsel, and their being held incommunicado. With regard to forcible transnational abduction and extraordinary rendition, it is unclear that unlawful combatants have any remedy under United States Law especially given that the relevant jurisdiction would most likely be a military tribunal. Several Guantanamo Bay detainees have unsuccessfully sought jurisdiction in United States courts to challenge their detention. See, for example: Rasul v. Bush, 540 U.S. 1175 (2004). In November of 2004, a federal court ruled that one Guantanamo detainee, Salim Ahmed Hamdan of Yemen, had not been found to be a prisoner of war by a competent tribunal under the Geneva Convention. Hamdan v. Rumsfeld, 344 F.Supp.2d 152 (D.D.C., 2004). This prompted hearings before Combatant Status Review Tribunals for all Guantanamo Bay detainees in the subsequent months. The hearings confirmed 520 detainees as unlawful enemy combatants, and 38 detainees were released. Combatant Status Review Tribunals Update, DoD News, Jan 19, 2005, at http://www.globalsecurity.org/security/library/news/2005/01/sec-050119-dod01.htm.

While the status of citizens of the United States who are classified as enemy combatants remains unclear, it may not matter in the context of forcible transnational abduction. Barring patently unconscionable treatment during the abduction (and subsequent trial in a circuit that acknowledges such an exception to Ker-Frisbie), even a non-combatant citizen could not successfully challenge United States jurisdiction. It is doubtful a military tribunal would find differently. With regard to extraordinary rendition, unlawful combatants who are United States citizens may enjoy some degree of constitutional protection, but no such case have yet come before the courts.

Conclusion

United States extradition law is rapidly developing relative to most areas of domestic law. Extradition law has profound consequences to the liberty of both United States citizens and foreign nationals. With recent changes to the makeup of the Supreme Court, the issues discussed herein, such as whether the Supreme Court affirms the Ker-Frisbie doctrine with or without exceptions, and whether the court upholds any extraordinary rendition cases that come before it, will undoubtedly cause significant repercussions in the realm of international law and international relations. The future resolution of these crucial issues will continue to define the United States' rule of law, and its identity as a government, a nation, and a member of the international community.

Frequently Asked Questions

Question: That article was way too dry, and I sort of spaced out about half way through it. What does this all mean, really?

Answer: As described above, even a suspect who flees to a country without a formal extradition treaty with the US is not necessarily safe from extradition because of the possibilities of comity or waiver of specialty doctrine requirements. Further, the United States government can still have such the suspect illegally kidnapped, and as long he or she wasn't tortured en route (as in the Toscanino case, although not all US Circuits follow the Toscanino decision), the Ker-Frisbie doctrine is still satisfied thus leaving the suspect without any real legal recourse. I hate to say it, but in short, it's currently legal for the United States to illegally kidnap people all over the world. It may sound shocking, but it is fact, and not merely my opinion. The Ker-Frisbie line of Supreme Court decisions speak for themselves, and I encourage you to read them!

Ultimately, it comes down to whether the country where the suspect is residing is willing to sell the suspect up the river for some international aid funds or other such assistance. Thus, unless the suspect is in a country particularly hostile to the US, or unless the suspect is politically well-connected in the country in which he resides, extradition is quite likely if the US government wants it badly enough. A private army in control of the suspect, which would prevent a clean kidnapping, would probably increase the suspect's odds of successfully enjoying asylum. Also remember that, practically and unofficially speaking, each country gets a certain number of “passes” each year for otherwise-outrageous behavior because of the unauthoritative way in which international law works. As such, a suspect who is not a “big fish” is probably less likely to be an extra-legal kidnapping victim since the US government must expend some serious “diplomatic currency” on each such incident (that is, if ten Alvarez-Machain style kidnappings happened every month for a year, international backlash would quickly develop!)


Question:Which countries currently lack extradition treaties with the United States?

Answer:
No US extradition treaty, but maintains diplomatic relations with the US:
Afghanistan, Algeria, Armenia, Bahrain, Bangladesh, Bophuthatswana (now defunct), Brunei, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, China, Ciskei (now defunct), Comors, Ivory Coast, Djibouti, Equatorial Guinea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Indonesia, Jordan, South Korea, Kuwait, Laos, Lebanon, Madagascar, Mali, Marshall Islands, Mauritania, Micronesia, Moldova, Mongolia, Mozambique, Burma (a.k.a. Myanmar), Namibia, Nepal, Niger, Oman, Principe and San Tome, Qatar, Russia, Rwanda, Saudi Arabia, Senegal, Sudan, Syria, Togo, Tunisia, Uganda, Western Samoa, Yemen, Zaire, Zimbabwe.

No US extradition treaty, and no diplomatic relations with the US:
Andorra, Angola, Bhutan, Bosnia, Cambodia, Cuba, Iran, North Korea, Libya, the Maldives, Serbia, Somalia, Taiwan, Transkei (now defunct), Vanuatu, Vietnam.

See http://www4.law.cornell.edu/uscode/18/3181.notes.html for more information on this on existing treaties.


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