Challenging International Extradition: Strategies and Pitfalls

International extradition is the legal process in which a requesting country seeks the surrender of an individual by the requested country for prosecution or, if the individual is a fugitive from justice, to serve a sentence after conviction. In the United States, extradition is based on treaties with other countries. Before another country can ask for an individual to be returned, the U.S. must have an extradition treaty with that nation.

Similarly, if the U.S. wants a fugitive returned to America, that person must be located in a country that will extradite criminals back to the U.S.

Even where treaties exist, international extradition is a complex process that can affect an individual’s life far beyond the legal issues involved in transferring someone to another country. What should someone do if they are the subject of an extradition request? What options do they have to oppose or fight the extradition?

The Extradition Process

Extradition can only be requested by the government of the requesting country. In most cases, the local prosecutor files a request with their government, which transmits it to the U.S. Department of State. The State Department reviews the request, and ensures a valid extradition treaty exists between America and the requesting country. Then the request is forwarded to the Department of Justice, which conducts its own review. If they determine the request is valid, it is forwarded to the subject’s district for a warrant and arrest.

Following an arrest there will be an extradition hearing. The purpose of this hearing is not to contest the validity of the underlying charges. The defendant’s guilt or innocence is not at issue, there are few rules of evidence, and no right to a jury. The only purpose is to determine if the extradition itself is valid.

Legal Defenses Against Extradition

Challenging extradition must attack the reasons for the extradition itself. There are several reasons why the extradition might be invalid which do not touch the alleged crime.

• Dual Criminality. U.S. extradition treaties prohibit extradition if the crime for which the person is sought is not a crime in the United States. In practice, this restricts extradition for political crimes, religious crimes, and similar acts.
• Humanitarian Concerns. The court is limited in its ability to address humanitarian or human rights matters. Some issues might include severe health issues that prevent the defendant from traveling, fears of harsh or unfair treatment due to racial or gender bias in the requesting country, and similar concerns.
• Lack of Probable Cause. To support an extradition warrant, the requesting country must show that a prudent person would believe the person sought committed the offense. Explanatory evidence is allowed, and a prepared attorney with knowledge of the requesting country’s laws is essential.

A critical factor in an extradition defense is obtaining legal counsel in both the U.S. and the requesting country. An attorney in the requesting country can help determine whether the charged crime is a crime in the United States, or if language and translation issues are concealing the government’s motives. Legal counsel in the requesting nation is also better placed to research the alleged offense, and begin discovery if possible.

Extradition Treaty Requirements as Defenses

United States extradition treaties have specific requirements for extradition requests. The DOJ and State Department should catch any errors in the request before issuing the arrest warrant, but the defendant’s attorneys have the duty to double-check when preparing their defense. The USDOJ has been known to bend its own rules with other countries to recover wanted terrorists and other fugitives, so defense attorneys should always carry out due diligence when reviewing warrants.

• Statutes of limitation. Extradition treaties require a request be submitted within a certain time after the commission of the offense (the time limit varies with each treaty). A crime may also have its own statute of limitations in the requesting country.
• Double jeopardy. Not the same as dual criminality, U.S. extradition treaties prohibit extradition if a fugitive or wanted person has been tried for the offense already. Some nations allow multiple retrials for an offense, but the U.S. will not extradite individuals for multiple trials.
• Extraterritoriality. The offense must have been committed within the requesting nation’s jurisdiction. Although the U.S. sometimes requests extradition of subjects who act against U.S. interests outside its own jurisdiction, this rule prohibits nations with extradition treaties from requesting defendants on behalf of nations that do not.

When to Waive Extradition

At any point during the proceedings, the defendant may choose to waive extradition. This means waiving the right to the extradition hearing and being sent immediately to the requesting nation to begin the court proceedings there.

Deciding to waive the extradition hearing may seem counterintuitive, but there may be good reasons to skip the hearing and return to the requesting nation.

The extradition hearing process can be lengthy and add months or years to the court process. A defendant may wish to return to the requesting nation to begin plea negotiations or work out other resolutions.

If the defendant is from the requesting nation and has family or close ties there, a court battle at home may be preferable to one in a foreign nation. Some nations have better pretrial holding conditions or may be more willing to offer pretrial release to their own citizens than U.S. detention facilities.

If the defendant chooses to waive extradition, it must be done early in the process. Once the extradition has been certified, the only method of appeal is filing a writ of habeas corpus. The writ stays execution of the extradition until the court issues a ruling on the writ.

Conclusion

When anyone is facing an international extradition, whether from the United States to another country, or from elsewhere back to the U.S., they need immediate legal assistance from an attorney who understands extradition law. Extraditions are extremely fact-specific, and it is difficult to generalize about how best to defend against an extradition. Contesting the extradition or waiving the hearing depend entirely on the facts in each case, and you will need a skillful attorney to give you the correct advice.