Extradition Treaties Violations by the United States

Introduction

The term “extradition” refers to the legal process whereby one state hands over an individual to another state for the purposes of prosecution or punishment. Treaties establish the legal framework for extradition to and from the United States. Although there are many countries with which the United States does not have an extradition treaty, the United States has extradition treaties with over a hundred. Extradition has become a crucial tool for law enforcement due to the rise of international terrorism and drug trafficking. This is a high-level summary of the federal law governing foreign requests to extradite a defendant found in this country and a U.S. request for extradition of a defendant found in another country, as well as a brief overview of the changes made in recent treaties to accommodate American law enforcement interests

Extradition Treaties

The most contentious issues surrounding extradition treaties center on those for which extradition is not an option. Most contemporary extradition treaties specify not only the types of crimes for which extradition may be granted but also the types of crimes for which it must be denied. Common exceptions include those for “purely military” or “politically motivated” offences, for “capital” offences, for crimes punishable under the laws of only one of the treaty’s parties, for crimes committed outside the country seeking extradition, for crimes where the defendant is a national of the country of refuge, and for crimes barred by double jeopardy or a statute of limitations.

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

By international law procedure, a state party to an extradition treaty is required to apprehend and present a person duly shown to be sought by another state party to the treaty (a)for trial on a charge of having committed a crime covered by the treaty within the jurisdiction of the requesting state, or (b) for punishment after conviction of such a crime and flight from justice.

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.

Forms of Extradition in the US

The procedure of extradition is laid out in 18 U.S.C. 3181 of the federal statutes. The court that oversees the legality of the extradition and the Secretary of State who represents the United States abroad must both take part in this process.

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.

The return of an international defendant to the United States is governed by the laws of the country of refuge and any applicable extradition treaty. Extradition requests are processed through diplomatic channels, and the most common treaty concern that will arise after an individual has been extradited to the United States is whether or not he or she has been tried for any crimes other than the one for which he or she was extradited. There is no jurisdictional bar to trial or punishment even if extradition was disregarded and a defendant was returned to the United States for prosecution. A substitute for U.S. extradition is sometimes found in federal and foreign immigration law.

Extradition From the US

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

An appropriate state or federal prosecutor confers with the investigating agency to learn the details of the crime and determine whether or not the high costs of extraditing the suspect are justified. (The fee for the translation will be covered by the requesting state or federal attorney’s office.) Afterwards, the prosecution submits a request to the Department of Justice, which evaluates it for viability. If everything checks out at Justice, it will be sent on to State. After the State Department approves the request, it is sent to the appropriate U.S. embassy, which then notifies the appropriate authorities in the country of asylum. From there, the procedure differs from country to country, though it typically follows something of a pattern analogous to the one used in the USA. In many countries, suspects can challenge or appeal extradition. The U.S. Marshals Service will typically accompany a defendant back to the United States if the country where they are seeking asylum agrees to this.

Interpol Red Notice

Nearly 200 countries are members of the international police organization, and any of them can request a “red notice” for a wanted person if they have a valid arrest warrant or court order. Every country’s law enforcement and border patrol should take note of this warning. A member state may, at its sole discretion, arrest the person named in the notice and begin extradition proceedings.

Violation of Extradition Treaties

Both multilateral and bilateral treaties provide conditions for compliance and violations. However, reviewing every single treaty the US has with over 100 countries to draw out these conditions can be quite an exhaustive process and cannot be covered in this write-up. Generally, extraditable crimes are usually listed in the extradition agreements entered into between countries. Political crimes, military offences and religious offences are usually not extraditable.

Even with clear provisions of treaties, there cases where the US has attempted to and even violated extradition treaties some of them will be reviewed below.

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.

Even though the United States had issued an arrest warrant for Assange, it was Sweden that first moved to have him extradited. Due to sexual misconduct allegations, Sweden requested his extradition from the United Kingdom. According to Assange’s court filings, the Swedish extradition case was just a ruse to hand him over to the Americans. He was found not guilty and absconded to the Ecuadorian embassy in London after jumping bail.

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.

The United States has used extraordinary rendition only in extreme circumstances. In contrast to the judicially overseen process of extradition, “extraordinary rendition” involves the forcible transfer of an individual, typically a suspect in a terrorist act, to a country with weaker human rights protections.

El-Masri v. Tenet is a well-known example. U.S. and international human rights laws were allegedly broken when former CIA director George Tenet gave the order for Mr. El-Masri to be kidnapped, beaten, and drugged before being shipped off to a secret CIA prison in Afghanistan, according to the lawsuit. Companies whose planes Mr. El-Masri was transported on are also named as defendants. In spite of Mr. El-obvious Masri’s innocence, the CIA kept him imprisoned in Afghanistan’s infamous “Salt Pit” prison without any contact with him for years. Mr. El-Masri was abducted and held for five months before being dumped on an Albanian hill at night.

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.The American Civil Liberties Union (ACLU) represented the interests of five victims of extraordinary rendition in a federal lawsuit filed in 2007 against Jeppesen DataPlan, Inc., a subsidiary of Boeing Company. The lawsuit claims that Jeppesen conspired with the CIA to kidnap, torture, and interrogate these five men by providing essential flight planning and logistical support services to the aircraft and crews involved in these renditions. Publicly available information suggests that Jeppesen was aware of the outcomes of its actions. According to a report in The New Yorker, a former Jeppesen worker overheard a senior Jeppesen official say, “We are the ones who carry out all the torture flights, also known as extraordinary rendition flights. In all honesty, some of these flights do end up in that situation.”

Despite the fact that much of the evidence needed to try the case was already available to the public, the government intervened shortly after the suit was filed and inappropriately asserted the “state secrets privilege,” claiming further litigation would undermine national security interests. In the history of the court system, not a single torture victim has ever been given his day in court.Specialty is another way to enforce compliance with treaties.

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.Ghanem admitted guilt on all counts except the one involving the sale of missile systems. A jury found Rami Ghanem guilty after deliberating for only nine days in November 2018. In August 2019, a judge handed down a 30-year prison sentence.

However, a panel of the Ninth Circuit recently published a 40-page opinion overturning Ghanem’s conviction for selling the missile systems, overturning his sentence, sending the case back for a new sentencing and further proceedings without a retrial.This decision violates the rule of specialty from the EU-US extradition treaty.

Conclusion

Most countries have extradition treaties with the United States, but nearly 75 countries do not. Some of the most populous nations in the world, including China, Indonesia, Bangladesh, and Russia, are among those included in this category, along with many others across Europe, Asia, and Africa. Even if a country has an extradition treaty with the United States, that country may still refuse to hand over a suspect to American authorities. This has led to the use of extraordinary rendition, abduction, and immigration procedures, all of which are technically illegal but have not stopped the United States from employing them and relying on national laws to justify them.

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.

Hits: 729139