International Extradition

International Extradition: A Complex Process Explained

International extradition is the formal process by which one country requests that another country surrender an individual accused or convicted of a crime. It’s a complex legal procedure governed by treaties and domestic laws. This article provides an overview of how extradition works in the United States and key issues for defense lawyers to consider when representing clients facing extradition.

The Extradition Process

Extradition always involves two countries: the “requesting country” that wants to prosecute or impose a sentence on the individual, and the “requested country” where the person is currently located. For the U.S. to extradite someone, there must be an extradition treaty in place between the U.S. and the requesting country.

Once the requesting country submits a formal extradition request, the process enters what’s called the “judicial phase.” A judge in the requested country will hold an extradition hearing to ensure the request meets the treaty’s requirements. The judge examines issues like probable cause and dual criminality – whether the alleged conduct is illegal in both countries. If the judge certifies extradition, the case moves to the “executive phase” where the final surrender decision is made by the requested country’s executive branch.

Extradition proceedings use a “dual track” approach where the judicial and executive phases run in parallel. This allows the extradition target to pursue appeals and other challenges in court while the executive branch is also reviewing the case. The person facing extradition remains in custody throughout the process unless they are granted bail.

Key Steps in U.S. Extradition Cases

For extradition requests to the U.S., the judicial phase begins when federal prosecutors file a complaint in U.S. District Court seeking an arrest warrant. After the person is arrested, the U.S. holds an extradition hearing where the judge reviews the evidence and treaty requirements.

If extradition is certified, the State Department formally reviews the case and makes recommendations to the Secretary of State who has final authority to approve the surrender. Extradition is primarily an executive function under the President’s foreign affairs powers.

During U.S. extradition proceedings, the fugitive has an opportunity to oppose extradition in the courts by challenging issues like probable cause, dual criminality, citizenship claims, and humanitarian concerns. But the scope of judicial review is limited, and courts generally defer to the executive branch’s determinations.

Key Defenses Lawyers Use to Fight Extradition

While extradition is usually difficult to prevent, there are defenses lawyers commonly raise:

• Dual criminality – arguing the alleged conduct is not criminal in both countries. For example, some countries criminalize defamation while the U.S. does not.
• Political offense exception – many treaties bar extradition for “political offenses” like treason or espionage against the requesting country. Courts have narrowed this exception in recent years.
• Citizenship – most treaties prohibit extraditing a country’s own citizens. Lawyers may challenge dual citizenship claims by the requesting country.
• Human rights and humanitarian concerns – arguing extradition violates due process or poses humanitarian issues like torture, death penalty, or poor prison conditions in the requesting country.
• Statute of limitations – if the statute of limitations has expired in either country for the alleged crimes.
• Asylum/refugee status – asserting the extradition target faces persecution in the requesting country.
• Probable cause challenges – contesting the reliability and sufficiency of the requesting country’s evidence.

Why Extradition Gets Delayed

While extradition is usually successful once certified by the courts, the process can face lengthy delays. Common reasons include:

• Multiple appeals and habeas corpus petitions by the fugitive contesting issues like probable cause.
• Political sensitivities, especially in high-profile cases with alleged political motivations.
• Competing extradition requests from multiple countries for the same person.
• Difficulty obtaining needed documents from foreign governments.
• Determining issues like citizenship status or potential death penalty exposure.
• Allowing time for humanitarian appeals to the State Department by the fugitive’s lawyers.

Delays don’t necessarily prevent extradition but they can significantly prolong the process. In complex and controversial cases, extradition can sometimes take years to resolve.

Conclusion

International extradition is a delicate legal process that sits at the intersection of criminal justice and foreign affairs. For defense lawyers, understanding the procedural rules and available defenses is key to effectively advocating for clients facing extradition. While preventing extradition is an uphill battle, lawyers can look for treaty violations, evidentiary challenges, and humanitarian factors to argue against their client’s surrender. Given the potentially severe consequences, mounting a vigorous defense is critical whenever someone is targeted for extradition.