Demystifying International Extradition

On January 19, 2017, the Government of Mexico extradited drug lord Joaquín "El Chapo" Guzmán Loera to the United States following his dramatic escape from custody, a lengthy manhunt, and his subsequent recapture in Mexico.¹ Guzmán's extradition battle was one of many high-profile news stories in 2016 about individuals fighting extradition to or from the United States. Others have included Roman Polanski, the filmmaker sought for statutory rape;² Fethullah Gülen, a Turkish-American cleric living in Pennsylvania whom Turkey blames for a failed coup attempt in July;³ and NSA leaker Edward Snowden.⁴

For each of these cases, diplomatic and law enforcement authorities handle dozens of lower-profile requests to and from the United States as part of the regular work of international law enforcement cooperation.

The process by which the United States evaluates hundreds of incoming and potential outgoing extradition requests each year may be unfamiliar to many practitioners.⁵ This Advisory is meant to provide a basic primer for those interested in understanding the extradition process. It first lays out the basic elements common to most extradition treaties. It then describes the extradition process to and from the United States. In the last section, it sets forth some of the most common defenses to extradition and suggestions for handling requests to achieve the best results for individuals facing extradition.

I. General Overview of Extradition Treaties

The United States has extradition treaties with more than 100 countries.⁶ The United States will extradite to another country only under the authority of a bilateral extradition treaty with that country, but will accept fugitives from countries whether based on an extradition treaty, the provisions of a multilateral treaty, or other means of return.

Extradition treaties operate like contracts and obligate parties to "comply with the request of another state party to that treaty to arrest and deliver a person" when the treaty's requirements are met and no exceptions apply.⁷ Extradition treaties are individually negotiated and may vary in their provisions in order to accommodate legal systems and priorities of the negotiating countries, but they generally share common elements. They establish requirements for both the country sending the extradition request (the requesting country) as well as the country receiving the request (the requested country). The elements common to most treaties include:

• Extraditable offenses. All treaties include provisions defining which crimes are extraditable. Treaties agreed upon prior to the 1970s typically include a negotiated list of specific extraditable offenses (such as specific crimes like "murder," "manslaughter," and "larceny") and only allow extradition for the crimes that are listed in the treaty. Modern treaties have largely done away with these lists, however, and use a "dual criminality" approach instead. This more flexible approach examines the conduct that serves as the subject of the request.
• Exceptions to Extradition. Every extradition treaty contains exceptions to the parties' extradition obligations. The most common exceptions include:

-    Political and Military Offenses. These provisions are aimed at crimes such as treason, sedition, and other offenses that could be used to target political opponents or otherwise cause the requested country to become entangled in the domestic politics of the requesting country. To clarify and limit the contours of the "political offense" exception, most US bilateral treaties now carve out violent conduct such as bombings and kidnappings from that exception, even if the subject alleges that the conduct in question was politically motivated.⁸

-    Nationality. Many countries refuse to extradite their own nationals, and extradition treaties may include exceptions for this policy. The US government has long taken the view that nationality should not be a bar to extradition, since the requesting country in an extradition case should have the right to pursue criminal charges against persons who violate its laws regardless of nationality. The US government accordingly extradites its nationals and seeks to limit nationality-based denials in new US extradition treaties.

-    Prior Prosecution. These "non bis in idem" provisions of most extradition treaties protect subjects from transnational "double jeopardy." They bar extradition where the person has already been convicted or acquitted for the same conduct that is the basis of the extradition request.⁹

-    Capital offenses. Although the US tries to limit the application of this exception, many US treaties have provisions permitting the requested country to demand assurances that the death penalty will not be sought or imposed. Some countries that do not impose the death penalty domestically will not agree to extradite to the United States in a case where the death penalty is a possible punishment, or at least reserve the right to deny extradition if the crime could carry a death penalty.¹⁰

-    Extraterritoriality. Some extradition treaties limit their scope to crimes committed within the territorial jurisdiction of the requesting country. The United States has pushed to eliminate these restrictions in recent years.¹¹

• Rule of Specialty. The doctrine of specialty requires that the person sought may be tried in the requesting country only for the crimes for which extradition was sought.
• Procedural and documentation requirements. The requesting country must typically support requests with information about the identity of the person sought (including specific descriptive information), documentation showing the facts and procedural history of the case, copies of the judgment or conviction (if applicable), and any other information the requested country deems necessary to evaluate the request. For requests to the United States, the information must be sufficient to satisfy the requirement of "probable cause" for a person to be arrested under US law.
• Statute of Limitations. Because statutes of limitations may vary, many treaties include provisions specifying which country's statute of limitations will apply, or that the passage of time is no bar to extradition. US treaties typically state that the statute of limitations in the requesting state should be the only relevant limit.

II. Extradition Process

The extradition process in the United States and most other countries includes both executive and judicial phases. In the United States, responsibility for overseeing the extradition process is shared by the Department of State Legal Adviser's Office and the Department of Justice's Office of International Affairs (OIA), with substantial assistance from Justice Department attorneys around the United States. If an individual is found by a US court to be extraditable, the Secretary of State makes the final decision whether to authorize extradition. Extradition is only permitted if an extradition treaty is in place, all of its requirements are met, and none of its exceptions apply. Given the complexity and sensitivity of the issues involved, extradition is a time-consuming process, often taking years.¹²

A. Extradition from the United States

Step 1: Department of State receipt and initial review of the extradition request

The process begins when the requesting state sends an extradition request to the State Department through diplomatic channels. The State Department determines whether there is a treaty in force between the United States and the requesting country, and whether the conduct identified in the request is extraditable under that treaty. It will also review the documents submitted, typically in consultation with the Justice Department, to confirm that the request is motivated by bona fide law enforcement concerns. It may also ask questions of the foreign government, and can ask that the request be supplemented or resubmitted if materials in the request are incomplete or unclear.

Most modern extradition treaties allow the requesting state to seek "provisional arrest" of the subject while it prepares the formal request, which can reduce the possibility that a fugitive will flee while the request is being finalized and sent.¹³

Step 2: Department of Justice Office of International Affairs sufficiency evaluation

If it appears that all treaty requirements are met and no exceptions apply, the State Department will officially forward the request to OIA. OIA then reviews the request to verify that the request is complete and that the documents establish probable cause to believe that subject committed the crime charged.¹⁴

Step 3: Forwarding to an appropriate US Attorney's Office, which will then seek an arrest warrant

If the request satisfies the treaty's requirements and the probable cause standard, OIA forwards the request to the US Attorney's Office in the district in which the subject is located with instructions on how to proceed. An Assistant United States Attorney then files a complaint in US district court and seeks a warrant for provisional arrest if the subject has not yet been arrested.¹⁵

Step 4: Probable cause hearing

If the arrest warrant is issued and the subject is located and detained, he or she will be brought before a magistrate or district court judge for a preliminary hearing. The precise issues addressed during the hearing will depend on the treaty and any issues that arise at this early stage in the extradition request. Importantly, this hearing is a probable cause hearing, not a trial on the merits. The court determines "whether a case is made out which will justify the holding of the accused and his surrender to the demanding nation."¹⁶ The subject may offer evidence to refute a finding of probable cause, but the rules of evidence and criminal procedure do not apply as they would at a criminal trial.¹⁷

Step 5: Certification by court and decision by the Secretary of State

If the court finds that the probable cause standard and other requirements are met, the court will prepare a certification of extraditability, which is sent to the Department of Justice in Washington and from there to the Department of State for use in connection with the Secretary's decision on whether to approve the extradition.¹⁸ The Secretary of State has ultimate discretion to determine whether the subject should be released or surrendered.¹⁹ In making this decision, the Secretary may take into account "any humanitarian or other considerations for or against surrender," as well as "written materials submitted by the fugitive, his or her counsel, or other interested parties."²⁰

Findings of extraditability are not directly appealable. The sole avenue to challenge a finding of probable cause or extraditability is a writ of habeas corpus to a federal district court, which can be sought at any point during the extradition process. A court decision denying the writ may be appealed.

Step 6: Notification and transit or release

Once the Secretary of State decides whether an individual should be extradited, the Department of State will promptly notify the requesting country. If the request is approved, the subject's transportation to the requesting country will be arranged in coordination with that country and the subject will be escorted to that country by officials of the US Marshals Service.

B. Extradition to the United States

Step 1: Federal, state, or local prosecutor forwards extradition request to OIA

Requests for extradition are initiated by federal, state, and local prosecutors and must be reviewed and approved by the Department of Justice's Office of International Affairs before they are forwarded to the Department of State.²¹

Step 2: Review of extraditability by OIA

Under US practice, the Justice Department's Office of International Affairs is responsible in the first instance for reviewing possible outgoing extradition requests, ensuring that they are legally sufficient, and deciding whether to ask the State Department to make a formal extradition request through diplomatic channels. After receiving a request, OIA, consulting with State as needed, confirms the following:

    (1) an extradition treaty is in place between the US and the requested country;
    (2) the offense or offenses for which extradition is sought are extraditable;
    (3) the subject is procedurally extraditable based on elements including nationality, facts of the offense, and status of the case; and
    (4) any applicable statutes of limitations have not lapsed.²²

The Department of Justice may also evaluate issues such as where the crime was committed and whether capital punishment may be sought.²³

Step 3: Forwarding request to Department of State

All requests for extradition must be sent through diplomatic channels. When the formal request for extradition is being prepared, the Justice Department may request the provisional arrest of the subject. Depending on the provisions of the relevant extradition treaty, detention under a provisional arrest warrant may be limited to specific time periods of 30, 60, or 90 days. If an individual is arrested under a provisional arrest warrant, the person can be released by the foreign government if the US government does not submit a formal extradition request within the specified time period.

Step 4: Forwarding to requested country for extradition proceedings

After receiving a request from the State Department, competent authorities of the requested country will then undertake their own review of the extradition request. Procedures vary by country, but many entail a review similar to that in the United States, including executive approval and judicial review. Extradition determinations may be subject to appeal and, as in the United States, may take months or years to complete.

Step 5: Notification and transit or release or other disposition

Once the requested country reaches a decision regarding a US extradition request, it will notify the US government. If the request is denied, the OIA may work with prosecutors and the Department of State to evaluate other options for obtaining custody of the individual, such as deportation.²⁴

IV. Defenses to Extradition

The intricate procedural and legal requirements of the extradition process provide several possible defenses to extradition requests. Practitioners should remember that each extradition treaty is individually negotiated and the provisions in each treaty should therefore be considered when developing possible defenses. Some of the most common defenses include:

• Not an extraditable offense. The subject may argue that the alleged crime is not covered by the treaty. If a treaty relies on a specific list of extraditable offenses, this defense may involve a somewhat straightforward evaluation—if the offense is not on the list, the subject prevails. Still, as noted above, most treaties have replaced the list of crimes with a "dual criminality" approach. While this may simplify the process of making new crimes extraditable, it complicates the analysis of the alleged crime covered. If the subject can establish that the conduct that is the basis of the extradition request is not a crime in both countries, or otherwise does not meet the treaty requirements, he or she can avoid extradition.²⁵
• Failure to meet legal standard. The subject can argue that the request fails to provide sufficient information to meet the required legal standard, which in US courts is probable cause. This challenge could include an argument that the information supplied is vague or speculative.
• Political offense. As noted above, almost all treaties include provisions that "political offenses" are not extraditable. Under this defense, the subject may argue that the request is politically motivated and is being made simply to seek to extradite a dissident, political opponent, former official, or other persona non grata.²⁶
• Human rights issues. The subject can argue that extradition should be denied based on human rights concerns, most notably concerns about a person's likely treatment if returned to the country seeking extradition. The US State Department has sometimes been willing to place limitations and conditions on the extradition to ensure that the person will have legal protections that they may not otherwise be entitled to in the foreign country.²⁷

V. Conclusion

Extradition is a lengthy and often controversial process. Delays are especially common in high-profile cases involving allegations of political or other improper motive. Yet even the least controversial cases require in-depth analyses of the relevant treaty, the facts of the case, and the laws of both countries. There are defenses available to challenge extradition requests, and expertise in extradition generally and in the particulars of specific treaties can be especially valuable. Ultimately, those involved in the process must be prepared for a long and challenging road. The potential for complications and delay may also create an opportunity for creative counsel to negotiate dispositions in favor of clients to save all parties the costs and burdens associated with the long and uncertain legal process.

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