Julian Assange, the founder of WikiLeaks, was familiar with being uprooted when British authorities forcibly removed him from the Ecuadorian embassy in London in April 2019. He had taken refuge in Ecuador in 2012 when he was avoiding U.S. authorities, spending seven years in a converted office at the Ecuadorian embassy in London. Ecuador then revoked his asylum and citizenship, and now Assange is being held in a British prison and is facing extradition to the United States. He is being charged with conspiracy to commit computer intrusion and a violation of the Espionage Act, and if convicted and extradited, the maximum sentence he could receive is 175 years in a U.S. prison.
Initially, a U.K. court refused a U.S. extradition request due to the severity of U.S. prison conditions. In response, the Biden Administration provided guarantees to the British government that Assange would be treated humanely if extradited. On December 10th, 2021, the U.K. High Court granted permission for the extradition and gave Assange the right to appeal to the U.K. Supreme Court. If his appeal is unsuccessful, he will then be extradited to the United States to face prosecution. The outcome of his case will be based on his ability to challenge his American prosecution under the terms of the United States-United Kingdom treaty.
This essay seeks to answer the question if extradited defendants have the right to oppose their American prosecution in accordance with the rule-of-specialty provision of an extradition treaty. This regulation states that an individual can only be detained, arrested, or put on trial for any charges made in the extradition proceedings, in the absence of any objection from the surrendering country. Extradition is a form of cooperation between various nations to capture people accused or convicted of international offenses- offenses which cross international borders, go against the laws of multiple nations, or have an effect on a foreign nation.
Various circuit courts are divided on this question– some permit the extradited defendant to take legal action when they challenge their prosecution, and others require the extraditing nation to make a positive challenge to give them standing. This essay will be making the case for a new test which, when looked at along with the language and history of the United States extradition laws, suggests that even if the extraditing nation does not raise any objections, extradited defendants can still bring unique challenges, so long as these are challenges that the surrendering nation would have raised.
It is a well-established fact that states have the authority to control behaviour within their borders as well as conduct which has an effect on their interests. As a result, extradition cases hold great gravity, due to the impact they have on both a state’s sovereignty and jurisdiction. This inquiry has great importance, as it could determine whether or not a defendant can contest their prosecution under the specialty doctrine. Examples of this include El Chapo, who was extradited to the U.S. in 2017, and the cases of Julian Assange and Edward Snowden, both wanted for extradition in the U.S. on espionage charges and currently in exile in Russia. This question has huge implications for the due process rights of foreign defendants, as U.S. courts are expected to provide the same level of protection as those of U.S. citizens. If the rights of extradited individuals are disregarded, it could create tension between states. Extradition permits nations to defend against breaches of national security, however it can only be successful if the two nations involved are legally bound by an extradition treaty. A definitive resolution of the specialty challenge will help maintain the two essential components of international relations and the institution of extradition.
Part I of this Essay offers a concise look at the extradition process and the rule of specialty. Part II outlines the circuit split that gave rise to the existing issue. Part III examines the legislative history and structure of the Extradition Act to inform the standing analysis. In Part IV, a synthesis of U.S. circuit court and Supreme Court opinions and a three-part, context-specific test to address the query is proposed. Part V applies the proposed scheme to the Assange case and other comparable cases going forward via an analogy to the El Chapo extradition case.
I. The Specialty Doctrine and Extradition
A. The Surrender of Fugitives
The extradition process involves the surrender of fugitives from one jurisdiction to another, typically with the aim of prosecuting them for crimes they are accused of having committed.
Extradition is a type of legal collaboration between two countries. In the course of the extradition procedure, one nation (referred to as the “requested nation,” “surrendering nation,” or “asylum nation”) surrenders a person to a another (the “requesting nation”) who is accused or convicted of committing an offence outside their own country, within the jurisdiction of the other, for criminal prosecution or punishment.
The extradition of fugitives beyond the US borders is initiated as soon as federal, state or local prosecutors present a request to the executive body. The Office of International Affairs (OIA) of the Department of Justice is the first to look over the extradition requests. The OIA evaluates a few factors to make a determination on the legal sufficiency of the request and whether to ask the Department of State for a formal extradition request. These factors include:
- It must be determined if a treaty for extradition is in place between the US and the other country;
- The principle of “dual criminality” must be applied to the accused offense, meaning it must be considered a crime in both the requesting and requested states before extradition can take place. 5
- Procedural factors including nationality, facts of the offense, and the status of the case must be taken into account; and
- Any applicable statutes of limitations must be considered.
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The Office of the Inspector General could take into account details such as the site of the alleged crime and if the death penalty is a potential sentence.6
Prosecutors have the option to ask for a fugitive’s temporary arrest while awaiting an official extradition decision from the executive branch, as long as they believe the person is likely to run away and the treaty sanctions such an arrest. The Office of International Affairs (OIA) will assess whether the facts present an urgent situation, as indicated in the treaty. If urgency is established, the OIA will pursue a provisional request; if not, the prosecutor must pursue a formal extradition request.
The Office of International Affairs (OIA) evaluates extradition requests, and if they are approved, they will forward it to the Department of State. The Department of State will then distribute the request to the foreign country. After obtaining the request, the other country will follow a similar process to the United States in terms of executive and judicial review. This process can take a long time and has potential for appeals. When the foreign nation has made their decision, they will inform the US government. If the request is denied, the OIA will seek other means to gain custody of the wanted individual such as deportation.
B. International Agreements for Handing Over Suspects
Extradition treaties are agreements between two countries that allow for the handing over of suspects from one country to another. Such agreements are a key part of international cooperation when it comes to criminal justice.
Extradition treaties, which are the most frequently used method of repatriating fugitives, bind countries to extradition obligations under international law. Even in the absence of a treaty, governments may still extend the courtesy of surrendering individuals to the requesting nation. Some countries will not extradite their citizens, yet the U.S. will usually do so when a treaty permits it. 8
The international legal concept of comity requires that countries respect one another’s legislative, executive, and judicial actions. At times, including in the United States, individuals have eluded extradition treaties either by use of force or through abduction of a fugitive without the permission of the asylum country.
The US has a limited legal framework for extradition laid out in the Extradition Act of 1981. This specifies the procedures by which states must comply with the treaties they have signed. Such treaties identify the offenses for which extradition can be granted, set out how requests should be presented, list exceptions to extradition and indicate what evidence is required. The US has been engaging in extradition with other countries since 1794, when they signed their first treaty with the UK. Currently, it has agreements with more than one hundred nations. An extradition may also be granted if comity favours it.
The political offenses exception provides a restricted form of protection against extradition for those accused of acts pertaining to political matters. Typically, if the action conflicts with international law or is contrary to international standards of civilized behavior, it would not be considered a political offense. Nevertheless, in more recent years, some nations have made an effort to reduce the exception. In 2007, the U.S. and U.K. adopted a new extradition treaty that put a more strict definition on the political offenses exception. According to Article 4 of the treaty, serious violent acts like “murder, manslaughter, malicious wounding, or inflicting grievous bodily harm” as well as kidnapping, hostage taking, and conspiracy to commit such offenses are not entitled to the political offense defense.
Despite these regulations, the nation being asked to extradite may deny the request if it is seen to be politically based. But, if there is a “multilateral international agreement” which requires both parties “to extradite the person sought or to send the case to their competent authorities for a decision on prosecution[ ]” then the matter is not of a political nature. The U.K. Extradition Act of 2003 got rid of the earlier exception for political offenses, indicating that the U.K. government had intended to abolish the exception altogether.
The lower court disregarded Assange’s political offense argument against extradition, citing the Parliament’s removal of the exception in the Extradition Act. It is possible that those facing extradition to a different country may be able to use this defense, however, not when the United Kingdom is the country requesting extradition.
C. Specialized Area
Extradition treaties establish permissible behavior for governments during and after extradition proceedings. Even if the political offenses exception is unlikely to be applicable in the UK, extradited defendants have come up with means of contesting their extradition without stepping outside the bounds of the applicable treaty. The specialty doctrine or the specialty rule is the most frequently-arising issue in post-extradition situations that are regulated by a treaty.
This Essay focuses on the rule of specialty, a widely accepted principle of international law that is often added to extradition treaties. According to this doctrine, after extradition is completed, the receiving nation is prevented from prosecuting the defendant for any crime other than the ones specified in the original extradition request. The requesting state must make sure it is compliant with the specialty principle. In certain situations, a country may choose to forgo the principle and allow for prosecution of additional offenses, or even act outside of the extradition treaty as an act of international comity.
Summarizing the rationale for the doctrine, Mary-Rose Papandrea provides an apt explanation:
Realists suggest that the doctrine of specialty is necessary in order to guard the extraditing state against possible exploitation of its right to grant asylum to a person in the lack of an extradition treaty. When a state enters into an extradition treaty, it surrenders a limited portion of its right to give refuge to the person in question. From the realist perspective, the doctrine of specialty works to protect the remaining sovereign rights of the state providing sanctuary, which continue to keep the defendant from being tried for actions not included in the extradition request.
In contrast, when a nation that grants asylum declines to recognize a specialty, the person being extradited is not allowed to seek asylum for any other offences not included in the applicable treaty. As Papandrea states, this leaves the accused “at the state’s whim.”
II. Meanings of the Specialty Doctrine: United States v. Rauscher , Ker v. Illinois , and the Differences in Court Rulings
The two Supreme Court cases United States v. Rauscher (1886) and its successors have been the most commonly referred to for the specialty doctrine. Unclear elements of these cases have caused a disagreement between the circuits. In Rauscher, the Court decided that someone extradited to the United States in accordance with an extradition treaty can only be prosecuted for the crimes specified in that treaty, and not for something else. Commentators have inferred from this decision that the specialty doctrine applies to any treaty the United States is a part of, even if it is not specifically mentioned. The Court additionally stated that the statutes regulating extradition proceedings are “conclusive” and have been read to suggest that American extradition laws give those extradited to the US a right to specialty.
In Ker v. Illinois (1886), the Supreme Court decided that a defendant could not challenge their own extradition in contrast to the Peruvian government. This has caused unresolved issues with regards to a defendant’s right to claim a violation to the specialty doctrine without their asylum country’s explicit objection. Despite this, the Supreme Court has consistently declined to make a ruling on the matter and recently denied certiorari in Hamilton v. Clarke (2018), which only furthered the circuit split.
The Second and Seventh Circuits have adopted a classical or positivist stance when it comes to rule-of-specialty claims, insisting that individuals have no standing to make such claims unless there is an affirmative protest from the surrendering country. These circuits have held that extradition treaties are agreements between independent nations and do not create individual rights. The specialty doctrine is only in place to protect the surrendering state, and thus, only the surrendering state has the right to require strict adherence to it.
In 2017, the Second Circuit in United States v. Barinas (2nd Cir. 2017) refused to recognize standing for a defendant facing a drug-trafficking charge who sought to question the court’s finding of a breach in supervised release after his extradition to the US. The court determined that the requested nation, the Dominican Republic, did not object to the prosecution and the treaty failed to indicate that its stipulations were intended to be enforced by the defendant. The Second Circuit also refused to accept the defendant’s specialty challenge in United States v. Beltran-Leyva ( Guzman Loera) (2nd Cir. 2022). This was a high-profile extradition case wherein the defendant was accused of importing large amounts of narcotics into the US and his cartel’s use of violent techniques to control parts of Mexico and quiet any opposition. The Seventh Circuit similarly declared, in Matta-Ballesteros v. Henman (7th Cir. 1990), that a Honduran defendant detained for narcotics crimes and extradited to the US lacked standing to make use of a treaty violation defense under the specialty doctrine without any protest from Honduras.
In opposition, the Sixth, Eighth, Ninth, Tenth and Eleventh Circuits have adopted a “natural law” method when it comes to granting defendants the right to raise objections to extradition requests on their own behalf. This understanding of a defendant’s rights “restricts the court’s in personam jurisdiction to the offense specified in the extradition request.” Courts which grant standing clarify that defendants possess a derived personal right to lodge challenges as long as they are restricted to those that the extradition country may have presented and are based on treaties or legal statutes.
In the Ninth Circuit decision of United States v. Cuevas (1988), it was held that a person extradited to the US based on Swiss orders in connection with drug conspiracies and currency reporting offenses can challenge any objections the extraditing country may have had. In contrast, the Eight Circuit in United States v. Lomeli (2010) found that, with regards to a Mexican defendant convicted in the US of money laundering and marijuana distribution conspiracies, the specialty doctrine does not prevent the pre-extradition conduct from being considered when deciding the defendant’s sentence.
The Third Circuit Court has demonstrated a conflict when it comes to the prospect of granting individual derivative standing, sometimes recognizing it while other times denying it due to the extradition nation not objecting.
Attempts have been made to address the split in opinions on extradition treaties. One school of thought sees them as contracts between nations, wherein both parties agree to restrict their sovereign rights by controlling the conditions of surrender. This has led to the belief that the extradited individual is a third-party beneficiary of the bilateral treaty and can claim rights associated with it. However, this is not definitive as the court’s interpretation of the treaty varies. Others posit that political factors may prevent the surrendering state from challenging a violation of the treaty, so it is up to the defendant. Lastly, some argue that allowing the defendant to assert rights is more efficient than the surrendering state having to track all related proceedings. So far, there is no definitive, rule-based framework to analyze this issue.
III. Historical Account and Design of the U.S. Extradition Statute
An examination of the legal background and structure of the Extradition Act (“the Act”) which governs bringing foreign accused persons to trial, will be beneficial to the court’s assessment. Literature on the U.S. extradition statutes regarding those extradited to the United States is limited. This is partially because the statutory framework for extradition in the United States has traditionally been distinct from the extradition treaties. Additionally, the Act’s framework mainly relates to extraditions from the U.S. to a foreign country or between U.S. states.
The current edition of the Act is quite clear when it comes to extradition requests made to the United States. However, requests issued by the United States and the prosecution of those extradited for their alleged crimes are not directly addressed in the Act. As a result, some pundits have suggested that looking at the Act would not be of much help when it comes to resolving the circuit split.
Section 3192 of the Act, which remains unaltered to this day, stipulates that extradited defendants must be protected physically in the US during the entirety of their trial process for the crimes specified in the warrant of extradition. This may be interpreted as an allusion to the specialty doctrine, which leads to the question: can defendants contest their prosecution on specialty grounds if the state they were extradited from does not object? An analysis of the Act’s provisions may help answer this query.
M. Cherif Bassiouni explains that under the initial version of the Act, the US only had the authority to extradite an individual if the request was made pursuant to an existing extradition treaty between the United States and the requesting state. This Act did not provide a legitimate basis for extradition independent of any treaty, unlike the laws of other countries. Thus, it served as a somewhat confused extra to treaties.
In 1996, Congress amended the Act, and no study has been conducted since Bassiouni on this alteration. As stated in Part II, specialty violations have been claimed since the late 1970s and early 1980s. Justice Gray, in Rauscher one hundred years ago, examined the Act’s predecessor statute. Additionally, 18 U.S.C. § 3192 clearly implies specialty. Additionally, there have been cases in which foreigners in the U.S. have tried to resist extradition to another country on the grounds of a specialty violation. Thus, studying the history and text of the 1996 amendments would be useful in understanding circumstances in which foreign defendants extradited to the United States seek to challenge their prosecution in America.
The Antiterrorism and Effective Death Penalty Act of 1996 included amendments to 18 U.S.C. § 3181, altering its “scope and limitation”. Previously, it only stated that “the provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government” (emphasis added). The 1996 Act, however, added two new subsections, recognizing the United Kingdom and other countries that grant extradition without a treaty, and that “most require an offer of reciprocity”. The relevant subsection provides (emphasis added):
(b) This chapter should be interpreted in a way that allows, as a gesture of courtesy, the rendition of persons who are not citizens, nationals, or permanent residents of the United States who have committed violent acts against nationals of the United States in foreign countries regardless of the presence of an extradition treaty with said foreign government if the Attorney General provides a written certification that–
(1) The foreign government has offered proof that, if the offenses were to be carried out in the United States, they would qualify as violent crimes as specified by Section 16 of this title.
(2) The alleged criminal acts are not tied to any political agenda.
Congress revised § 3184 in order to govern the extradition of defendants to the United States and acknowledged specialty principles, such as those outlined in § 3192. This section allows district or magistrate judges to issue warrants for apprehending and extraditing individuals who have committed crimes according to foreign treaties or conventions that the court has jurisdiction over. The 1996 amendments to § 3184 made references to § 3181(b), permitting the two sections to work as one.
The treaty-based language of extradition was relaxed in the interest of comity, presumably because other countries anticipate reciprocity when they send fugitives to the US. Congress wanted to give up some of the US’s jurisdiction over foreign nationals in order to better maintain international relations, as well as make it easier to extradite people to the US.
The 1996 alterations to the extradition framework acknowledged the common usage of extradition beyond the scope of formal treaties, instead relying on the inter-nation relationship. Additionally, this legislation established restrictions on the US Government’s authority to extradite people, thus preserving its jurisdiction over them. To satisfy the double criminality principle, the Attorney General has to certify that the requesting nation has supplied evidence showing that the offenses would be considered criminal acts of violence if committed in the US.
The language of § 3181 regarding “crimes of violence” and the purpose of the Act, which is to battle terrorism and secure justice for victims, demonstrate the weight of national security in most U.S. extradition proceedings, over the individual rights of the accused. The Act’s main focus is on protecting its citizens from crimes of violence, as provided by the political offenses exception which excludes “political nature” crimes from its scope. Hence, those accused of nonviolent offenses like whistleblowing may have more opportunity to bring personal specialty challenges than those, such as El Chapo, charged with violent crimes.
In 1996, Congress left the prior references to specialty in the Act unchanged, and did not add any sections covering the prosecution of extradited defendants. The U.S. executive branch had the authority to make extradition requests and prosecute extradited defendants, while foreign state’s executive and judicial branch held the responsibility of supplying evidence of a fugitive’s criminality. For extraditions to the United States, the requested nation gave up jurisdiction of the defendant after extradition. Therefore, scholars point out that it is the defendants, not states, that are best positioned to bring up specialty challenges if there are alleged treaty violations.
Congress’s lack of action in the Extradition Act and its amendments supports the idea that an individual has the right to contest a prosecution on specialty grounds. This despite rulings from several courts and a divide in the circuits on the issue. While Congress is not a unified body, its lack of interference in this matter indicates that bringing specialty challenges is in line with U.S. extradition law, at least for the present.
IV. Establishing a Three-Phase Procedure for Examining Legal Standing Using the Specialty Doctrine
This article suggests a three-part method for assessing the situation of individuals who are extradited and whether they have standing. Factors courts have taken into account in the past are amalgamated into a uniform system that has yet to be employed. This piece of writing contends that the following aspects should be considered as a whole and in sequence: (1) what offenses are covered by the treaty; (2) the defendant’s relinquishment of rights and/or limits on prosecution; and (3) the actions and purpose of the signatory countries.
When evaluating a potential specialty violation, a court should first assess whether the extradition treaty covers the crime for which the defendant was extradited or the punishment imposed upon them in the United States. If the crime or punishment is within the scope of the treaty, then there has been no violation. If, however, the crime or punishment does not fall under the treaty, then the defendant may have experienced a cognizable injury, unless the intent of the two nations who signed the treaty indicated a desire to extradite for such a crime. 16
In the event of a possible breach, a court has to look at two further elements in order to determine if an individual has the right to challenge their American prosecution in the absence of a nation’s refusal. Firstly, the court should find out whether the surrendering country has explicitly given away any limits on the accused’s prosecution or sentence. If so, the court does not need to decide if there was a specialty violation since it has been waived. Secondly, courts must analyze whether the nation’s activities or motives are indicative of the legality of the extradition and/or the consecutive prosecution. It is essential to note that all of these factors are subject to international comity which says that states should try to abstain from activities that would clash with another nation’s laws, as far as practicable. Even if there is no specialty violation, comity may sometimes necessitate that contracting countries take action beyond the boundary of the treaty if it would be of mutual benefit.
Different extradition treaties may have different language and circumstances, which can lead to requests for extradition of defendants for crimes not specified in a treaty. To account for this variety, a standard-based approach has been implemented within the rule-based framework. This approach allows courts to take into consideration the context and language of the treaty in order to determine which of the two rules put forward by the circuit court should be applied. The subsections below will discuss the proposed steps of the test in greater detail.
A. First Step: Scope of the Agreement in Regards to the Offense
Challenges to various elements of the prosecution or punishment of extradited defendants have been raised through the invocation of rule-of-specialty provisions. Nevertheless, for a defendant to have the right to file a suit, it must be proven that the crime for which they are being tried is not included in the extradition request or the extradition treaty. This principle is stated in the judicial ruling in U.S. v. Puentes, where it is said that the sole offense prosecutable from the extradition process is the crime mentioned in the warrant. This same idea is echoed in § 3192 of the statutory language. So, when the crime is not included in the order or is not in line with the treaty, the defendant may move forward with their case.
Judicial bodies having examined this question have all concluded that the extradition order and treaty are applicable. In United States v. Puentes (11th Cir. 1995), the Eleventh Circuit held that the Uruguayan defendant had a derivative personal right to challenge his prosecution for cocaine import conspiracy under the United States-Uruguay treaty. However, the court determined that there was no violation and his conviction was upheld. The court declared that since Uruguay had not declined the extradition request despite being able to do so if the warrant was manifestly ill-founded, the evidence was allowed in Puentes’s case. The Ninth Circuit in Cuevas also denied the defendant the right to challenge his trial and conviction as he was only being tried for the charge he was extradited on.
The only exclusion to the regulation is when the one requiring extradition can prove the contracting nations meant for the treaty to include that offense as a prosecutable crime. Then, the defendant’s protest will be unsuccessful. The Tenth Circuit acknowledged this exception in United States v. Levy (10th Cir. 1990). The court determined that a defendant extradited from Hong Kong for participating in a continuing criminal enterprise had the right to challenge his prosecution. Even though the extradition order surrendering him to the American authorities did not mention the offense by name or list its elements, the court likened it to Hong Kong drug trafficking offenses and maintained that the “totality of the circumstances” implied that “Hong Kong intended to extradite [the defendant]” on the continued criminal enterprise charge. This exception, as seen by the courts, shows the need for built-in flexibility in the proposed rule-based framework. The exception is closely connected to the third step identified in Section C.
It is essential to evaluate whether the offense or penalty is part of the extradition agreement before asserting a specialty challenge. If it is, the challenge will be denied, even if the requested country waives this requirement. The cases previously discussed demonstrate the varied issues associated with specialty disputes.
B. Step Two: Waiver of Rights by the Defendant and/or Limitations Imposed by the Prosecution
In each instance where a court of appeals has allowed a challenge based on the rule of specialty despite the lack of an explicit objection by the surrendering nation, a common factor is present. Every court that has looked into this matter has ruled that the defendant’s rights under the rule of specialty will be respected only if the surrendering nation has not relinquished them. That was the main point that the Eleventh Circuit made in Puentes. The waiver factor plays a role in the second part of the standing test.
In United States v. Riviere (3rd Cir. 1991), the Third Circuit concluded that the defendant, extradited from the Commonwealth of Dominica for firearms offenses, drug offenses, and assaulting a federal marshal, was not in a position to contest his prosecution. The court claimed that Dominica had voluntarily waived any constraints on extradition to the United States and had not explicitly refused Riviere’s extradition. The court noted that Dominica had “communicated its willingness to not grant asylum to Riviere for any offense that the United States intended to prosecute him,” which is part of a sovereign nation’s right. This explanation is comparable to Papandrea’s description of the specialty doctrine discussed in Part I. It is evident in the above cases that any individual right of enforcement the defendant may have is dependent on the actions and intentions of the participating countries.
Step 3 of the process involves the signatory nations carrying out their actions and intentions.
When examining the issue of an individual’s entitlement to stand in court, a court must examine the actions and intentions of the nations that have signed an extradition treaty, provided there has been no renunciation of the treaty. This concept has been supported by academics in the field. 17
The ability to challenge a prosecution in an American court is largely dependent on the signatory nations’ intention of the treaty. This was exemplified in 2016’s Second Circuit case, United States v. Garavito-Garcia. In this case, the defendant asserted that the district court should have dismissed the indictment due to a violation of an extradition treaty between the United States and Colombia. The Second Circuit dismissed the motion, maintaining that the defendant lacked the authority to appeal because “the Government of Colombia [had not] first [made] an official protest”. Thus, it can be concluded that the signatory nations need to explicitly show that the treaty includes a private right of action in order for it to be effective.
[The defendant] has combined two different notions: language in a treaty which leads to a direct benefit to individual people, which is quite common to observe in international agreements; and language in a treaty which implies that the original authors of the treaty meant for those benefits to be enforced by private citizens, which is much less common. The extradition treaty in this case may include the former, however, the defendant has not been able to find, and neither have we, language which includes the latter.
The importance of focusing on the intent of the treaty drafters and/or signatories is demonstrated by Garavito-Garcia. Courts may use analogies from a treaty’s listed offenses to impute intent. At the core of the intent-based analysis lies the inquiry of whether the signatory nations wanted to authorize private enforcement. This last component of the system can be evaluated by studying the precise wording and set-up of the treaty in question, allowing for courts confronting fact-specific disparities in each extradition case to employ a more adaptable approach.
The three-part test and the wording of the Extradition Act taken together illustrate the intention behind it. The Act refers to special and extradition agreements, but Congress made no amendments to the existing extradition system to directly cover prosecution in the United States or to ban standing. In addition, it set limitations on the surrender of fugitives as a matter of comity, which is likely intended to make it easier to extradite defendants to the US. This gives defendants the best opportunity to bring forward specialty challenges that the state may have missed and implies that there is an existing, albeit limited, right to individual derivative standing.
V. Uses: El Chapo and Assange
The infamous criminals El Chapo and Julian Assange have both been subject to the application of the law. El Chapo being brought to justice for his drug trafficking and Assange having been charged with espionage.
It is worth discussing the implications of the three-part framework suggested. The well-known extradition case of El Chapo addressed the specialty doctrine and was resolved on January 25, 2022.
In January 2017, El Chapo was extradited to the U.S. in accordance with the U.S.-Mexico extradition treaty, in response to criminal indictments related to his role as the leader of the Sinaloa Cartel. After a three-month trial, El Chapo was convicted on ten criminal counts, including a continuing criminal enterprise, drug trafficking conspiracies, unlawful use of a firearm, and a money laundering conspiracy. El Chapo sought a new trial and an evidentiary hearing, but the district court refused both motions. When El Chapo appealed, he argued that his indictment should have been dismissed under the specialty doctrine, claiming that the U.S. government fraudulently obtained Mexico’s waiver of specialty to transfer him to the Eastern District of New York for trial and that Mexico had not agreed to the “harsh conditions of his pretrial detention.” The Second Circuit ultimately affirmed the district court’s ruling, which implicitly addressed all parts of the proposed framework.
The court did not doubt the treaty’s applicability to the offenses in question and referred to the U.S.-Mexico treaty’s specialty stipulations as per their ruling in Barinas. Additionally, it was unnecessary to ask if the specific offenses committed by El Chapo were in the treaty. As outlined in Article 2, the nations must extradite those that have committed “wilful acts” as listed in the Appendix – such as murder, manslaughter, wounding, and kidnapping. It was clear that the actions of El Chapo’s cartel, which included murder, kidnapping, torture, bribery, and other unlawful methods to control land and crush opposition, were covered by the treaty. Thus, the court could have stopped their analysis there.
The court mainly focused on the second step of the pleaded framework: waiver of specialty by the requested country. Mexico had given “explicit consent” to El Chapo’s trial in E.D.N.Y., thus the court noted that “[t]o the extent that some other courts have been willing to take into account a defendant’s specialty claim in the absence of an explicit waiver by the extraditing country, none of them has done so when there is such a waiver.” Additionally, Article 17’s reference to the requested nation’s agreement as an acceptable requirement for extradition also assisted the court’s reasoning.
Mexico having relinquished its right to jurisdiction over El Chapo’s trial meant that the Second Circuit was not required to assess step three, which involved ascertaining the signatory nations’ intent. Regardless, the court deliberated on the matter of intent in order to unequivocally disprove the defendant’s point that Barinas was incorrectly decided. Citing Garavito-Garcia, the circuit court declared that “[a]nyone facing extradition has no standing to argue non-conformity with an extradition treaty unless the language of the treaty shows that the drafters of the agreement meant for the benefits of the treaty to be enforceable by private citizens.”
Based on the evidence presented, the Court refused to grant El Chapo the right to contest his trial on the basis of any special considerations.
Though the offenses of El Chapo and Assange are distinct, the Second Circuit’s evaluation of the specialty doctrine can be utilized as a comparison to how the same framework would be applied in the Assange matter if he was sent to the USA.
First, El Chapo attempted to combat his restrictive confinement using the specialty doctrine. The British courts consented to extradite Assange to the United States, provided that his detainment would be in an appropriate condition. If American prison conditions prove to be cruel, Assange may use the same legal argument to combat the conditions of his detainment, and potentially negate his prosecution.
The question of whether the United Kingdom will forgo its right to prosecute and allow the United States to do so is yet to be determined. It is conceivable that the UK will waive this privilege in order to maintain the diplomatic ties between both countries. Conversely, if the US fails to keep its promises, Assange may be given the option to challenge his accusation in the US independently.
In drafting the most recent U.S.-U.K. extradition treaty, the drafters sought to limit exceptions to extradition. This can be seen in the narrowing of the political offenses exception and the lack of a congressional preclusion of the right to individual specialty claims, which implies that the signatory nations left limited room for defendants to challenge their extradition. Further information on the treaty’s drafting history could provide further clarity to courts on this matter.
The specialty doctrine likely allows extradited defendants to bring a private right of action to challenge their prosecution, assuming the challenge is limited to one the surrendering nation could have made. An Essay has synthesized the steps courts traditionally take when handling such cases into a single test. The third factor of this test, which factors in the signatory nations’ actions and intent, allows courts the flexibility to consider the particularities of the case. This test provides clarity to both defendants and contracting nations, although no new developments have occurred in the last couple of years. The pending appeal in Assange’s case, along with the significant international relations implications, may prompt courts to take a more decisive approach. The case law has made clear that a defendant’s ability to challenge their prosecution is partially dependent on the signatory nations’ intent and actions. Applying the test suggests that defendants like Assange and Snowden may have limited derivative personal standing to challenge their American prosecution, which will remain until Congress or the Supreme Court take further action.
AI re-write of the original article written by Caitlan M. Sussman .
Caitlan M. Sussman is currently completing her J.D. at the University of Chicago Law School, and is expected to graduate in 2022. She was awarded her B.A. with highest honors from Cornell University in 2016. The writer is grateful to the members of the Law Review’s Online Team for their useful remarks and edits. In addition, her family is thanked for their unconditional encouragement.
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