Jay’s Treaty of 1794 with Great Britain included a single brief article that served as the first U.S. extradition treaty. Despite its condensed form, the article covered some of the fundamentals of modern extradition treaties. U.S. extraditions have been based almost solely on bilateral agreements since that time. The United States, however, has entered into a number of multilateral agreements that may also provide legal authority for extradition.
There are two varieties of such arrangements. Extradition treaties between multiple countries are one possibility. There are currently two such agreements to which the United States is a party: the 1933 Montevideo Convention on Extradition, which has apparently never been used as a basis for extradition, and the Extradition Agreement Between the United States and the European Union, which entered into force in February 2010. Implementation of the extradition treaty’s provisions is achieved through bilateral instruments concluded between the United States and each EU Member State. When there is a discrepancy between the terms of the multilateral agreement and the terms of any prior treaties between the United States and the individual EU Member States, these instruments amend or replace the relevant provisions of the prior treaties.
The United States is also a signatory to a number of multilateral treaties that mandate the prosecution or extradition of individuals who engage in certain types of transnational crime or serious violations of human rights. These pacts are not extradition treaties in and of themselves, but they frequently include clauses that make certain offences extraditable under any future treaty between the two countries. Since the BREXIT of the United Kingdom was effected, the US has since signed a bilateral agreement with the UK for extradition.
Limitations of Extradition
The procedure by which the United States complies with its extradition treaty obligations is established by federal law, unless a contrary provision exists in the treaty. The United States has long been thought to only grant an extradition request if it could claim coverage under an existing extradition treaty, although some countries will extradite even in the absence of an applicable treaty as a matter of comity. However, dicta in separate cases suggested that this was a legislative preference rather than a constitutional mandate.
A formal request for extradition must be made through official diplomatic channels. In the United States, the process begins with the Department of Justice and the Department of State and may end with a federal magistrate ordering a hearing to determine whether the request complies with an applicable treaty, whether there is sufficient evidence to satisfy probable cause to believe that the defendant committed the identified treaty offense(s), and whether other treaty requirements have been met. If this is the case, the magistrate will issue a certification for extradition to the Secretary of State to decide whether or not to carry it out. The magistrate does not investigate the nature of foreign proceedings that may follow extradition unless specifically required to do so by treaty.
This procedure was well highlighted in Aguasvivas v Pompeo (2021). In most cases, the procedure begins with a foreign government making a formal request to the United States Department of State, accompanied by the necessary treaty paperwork. This paperwork typically includes information about the person being sought, the offenses being investigated, charging documents, arrest warrants, and evidence. To prevent an individual from escaping justice, foreign authorities can ask for their provisional arrest and detention while they compile the necessary evidence. After reviewing the request for treaty compliance, the Secretary of State may forward it to the Department of Justice, which will then obtain an arrest warrant, apprehend the defendant, and bring him or her before a federal judge or magistrate. The next step is for the court to determine whether or not there is sufficient evidence to charge the defendant with the treaty-violating offense. (A person’s rights are narrower in these proceedings than they would be in a regular trial. They can’t challenge the ruling itself, but they can challenge the court’s authority to make that decision. If there is sufficient evidence, the court will issue an extradition order and send the case back to the secretary of state for final approval. This certification process does not seek to establish the truth of the allegations or conduct an impartial evaluation of the evidence, as would happen in a trial; rather, it establishes whether the facts alleged constitute a crime in the prosecuting country.
Extradition to the US
Violation of Extradition Treaties
WikiLeaks‘ founder Julian Assange made headlines when he refused to be extradited in a highly contentious legal matter. When U.S. Army intelligence analyst Chelsea Manning leaked information to Assange’s website in 2010, the latter quickly became a household name. It was revealed that a video of an airstrike on Baghdad had been leaked.
For fear of political reprisal, Ecuador granted him asylum. The government of Ecuador refused to extradite him because they were afraid of handing him over to the United States. Assange was arrested by London police and taken to jail for jumping bail after Sweden withdrew its extradition request and Ecuador withdrew its protection.
His indictment for violating the Espionage Act was unsealed by the U.S. Department of Justice once he was in British custody. The press has portrayed this action as a threat to freedom of speech. The extradition request from the United States was denied by a British district court judge, but the United States has appealed the decision. Assange is currently waiting for a ruling on his appeal from a prison in England.
Although the US does not participate in extradition with countries that they have no treaties, there have been attempts to extradite people notwithstanding. The U.S. government’s efforts to have Edward Snowden extradited from other countries have not been successful. Snowden, a former NSA computer intelligence consultant, revealed the existence of multiple international spying operations. In the United States, he is being prosecuted for theft and espionage.
As the U.S. and Russia do not have an extradition treaty, he is now safe in Russia. Despite the absence of a treaty, Russia has not yet extradited Snowden but could do so at any time. Russia has effectively decided to protect Snowden from justice.
Even though Mr. El-story Masri’s was widely known at the time, the case was dismissed in May 2006 after government intervention, with the judge citing concerns over the potential compromise of state secrets if the case went forward.
Global context or the entire world. In November of 2006, the American Civil Liberties Union (ACLU) filed an appeal against the dismissal. The decision of the lower court denying Mr. El-Masri a hearing in the United States was upheld by the U.S. Court of Appeals for the Fourth Circuit. The United States Supreme Court declined to hear an appeal from Mr. El-Masri in October 2007.
The ACLU petitioned the Inter-American Commission on Human Rights (IACHR) on El-behalf Masri’s on April 9, 2008. On April 15, 2016, the IACHR ruled that Mr. El-petition Masri’s was admissible, and in November of that year, the ACLU asked for a hearing to be held during the 166th Extraordinary Period of Sessions to discuss the merits of the case.
The American Civil Liberties Union (ACLU) sent the Inter-American Commission on Human Rights its Final Observations on the Merits of the Khaled El-Masri case on October 17, 2018.
Specialty prevents the receiving country from holding an extradited defendant in custody or charging him with crimes other than those for which he was extradited. That is, the asylum country can only try the defendant for the crime for which he was handed over.
A foreign arms dealer’s 30-year sentence was recently overturned by the Ninth Circuit Court of Appeals due to the court’s conclusion that the defendant cannot be tried for offenses that were not included in the extradition request.
As part of an undercover investigation by the United States Department of Homeland Security, Rami Najm Asad-Ghanem, a naturalized U.S. citizen, was arrested in Greece in December 2015. Prosecutors claim that Rami Ghanem attempted to import various firearms, including silencers, pistols, and sniper rifles, into Libya from overseas vendors.
United States has a history of violating extradition treaties and undemining the principles of international law. Whether it’s through political interference, legal loopholes, or the use of national security justifications, the US has repeatedly failed to uphold its obligations to other countries. This undermines the rule of law and trust in international relations. It’s important for the US to take a critical look at its extradition practices and work to uphold its commitments to the international community.
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