Review of the Office of International Affairs' Role
in the International Extradition of Fugitives

Report Number I-2002-008
March 2002

PROCESS FOR INTERNATIONAL EXTRADITION REQUESTS

International extraditions involve two separate but similar processes.

Incoming Extradition Requests

A foreign government may request the arrest of a fugitive in the United States so an extradition hearing may be held. The process for an incoming extradition is:

• A foreign government forwards an extradition request to the Department of State. The Department of State's Office of the Legal Advisor's Law Enforcement and Intelligence (OLA/LEI) certifies that there is a binding extradition treaty between the United States and requesting country. The Department of State forwards the extradition request to OIA.

• The incoming extradition request is assigned to the OIA country team that handles the requesting country. A team attorney certifies that all appropriate documentation is included. The attorney also reviews the request for legal sufficiency, ensuring that probable cause exists that the fugitive committed the crime, and that specific location information on the fugitive is provided. When this review is completed, a letter describing the facts of the case and identification information on the fugitive, plus all documentation received from the requesting government, is forwarded to the International/National Security Coordinators (INSC) at the USAO in the federal jurisdiction where the fugitive is believed to be located.

• The INSC ensures the extradition case is assigned to an AUSA. The AUSA obtains an arrest warrant for the fugitive from a federal judge or magistrate in the district where the fugitive is believed to be located.

• The USMS in the district where the warrant is issued then arrests the fugitive. At an initial appearance before an extradition magistrate, ²⁵ the AUSA opposes bail, which is the standard U.S. government position. In most cases, the magistrate conducting the proceedings does not grant bail.

• During the extradition hearing, the AUSA addresses the following key elements that must be satisfied for a magistrate to issue a certification of extraditability: the court must determine that (1) an extradition treaty is in force between the United States and requesting country; (2) criminal charges are pending in the requesting country; (3) the crimes charged are encompassed within the extradition treaty; (4) the fugitive is, in fact, the person accused of committing the crimes charged; and (5) probable cause exists to believe that the fugitive committed the crimes charged.

• If the court finds that the fugitive is extraditable, the magistrate issues a certification of extraditability. The Department of State's OLA/LEI is informed when the magistrate issues the certification. The Department of State then issues a surrender warrant, which officially surrenders the fugitive to the respective foreign government.

• A fugitive does not have the right to appeal a finding of extraditability. However, the fugitive may file a petition for writ of habeas corpus. ²⁶ If the petition for the writ is denied, the fugitive may appeal the denial through the federal court system. Should the magistrate rule that the government's case does not sustain a finding of extraditability, the United States has no right of appeal. The United States can, however, remedy any defects that led to the denial of extradition and resubmit the foreign country's extradition request multiple times.

• After the Department of State issues the surrender warrant, law enforcement officers from the foreign country that requested the fugitive's extradition then come to the United States to transfer the fugitive to the requesting country.

Outgoing Extradition Requests

The U.S. prosecutors at the federal, state, and local level initiate outgoing extraditions. An outgoing extradition can typically involve the following steps:

• After a suspected or convicted criminal has fled the United States and has been located in a foreign country, the U.S. prosecutor contacts OIA to commence the extradition process. The case is then assigned to a team depending on the fugitive's location. An OIA attorney from the appropriate country team determines whether an extradition treaty exists between the foreign government and the United States. The attorney must also determine whether the crime committed by the fugitive is a crime encompassed within the treaty and is therefore an extraditable crime. The OIA attorney checks the fugitive's citizenship because some countries will not extradite their own citizens.

• The U.S. prosecutor prepares the formal extradition documents, which are reviewed by an OIA attorney. Included in the request is the prosecutor's affidavit outlining the facts of the case. The affidavit identifies the criminal offenses committed, legal statutes violated, and the penalties and statutes of limitations for the violations. The prosecutor's affidavit is accompanied by copies of the charging documents, such as the indictment and arrest warrant. After the prosecutor completes the request, the OIA attorney reviews the request for legal sufficiency and probable cause that the fugitive committed the crimes.

• In addition to reviewing and evaluating the extradition request, the OIA attorney determines whether the likelihood exists that the fugitive may flee once a formal extradition request is presented to the foreign government, or the fugitive poses a risk to the public. If the OIA attorney is satisfied that a potential for flight or a safety risk exists, then a request for a provisional arrest is forwarded to the foreign country. A provisional arrest allows the foreign government's law enforcement authorities to arrest a fugitive before a formal extradition request is submitted. Once a provisional arrest is carried out, the United States must meet a treaty-imposed deadline for submitting the formal extradition request to the foreign government. The deadline varies by treaty, but usually ranges between one and three months.

• The U.S. prosecutors may request INTERPOL Red Notices apart from requesting an extradition through OIA. ²⁷ If a fugitive is located in a foreign country based on a Red Notice, the U.S. National Central Bureau (USNCB) of INTERPOL notifies OIA. Law enforcement in some countries are authorized to arrest a fugitive based only on a Red Notice, while other governments require an official provisional arrest or formal extradition request to arrest a fugitive. Regardless of the notifying foreign government's practices, OIA is in the position to move forward with a provisional arrest or extradition request assuming a treaty exists between the two countries. OIA contacts the U.S. prosecutor who requested the Red Notice to determine whether the prosecutor wants to proceed with the extradition.

• After being approved by OIA, the formal extradition request is sent to Department of State's OLA/LEI and then presented through diplomatic channels at the Department of State to the foreign government. After the foreign government's law enforcement authority arrests the fugitive, an extradition hearing is conducted in the foreign court. If the court finds that the documentation presented by the United States is sufficient, then a certification of extraditability is rendered. If the court does not find the documentation sufficient, then the extradition request is denied. When a court grants the extradition request, the fugitive has the right to appeal.

• The certification of extraditability is a legal order to return the fugitive to the United States. While the USMS is primarily responsible for escorting the fugitive back to the United States, state and local law enforcement representatives may accompany the Deputy Marshals in escorting the fugitive back to the United States.

These extradition steps represent the basic procedures for incoming and outgoing extradition requests. However, the order and degree to which these procedures are employed depends upon the extent to which the extradition progresses. The extent of an extradition is, in turn, affected by various factors, such as the sufficiency of the information in the extradition request and extradition treaty provisions such as dual criminality, that determine the viability of the international extradition of fugitives.

25. Title 18, Section 3184, of the United States Code provides that an extradition magistrate can be "any justice or judge of the United States, or any magistrate authorized to do so by a court of the United States." An extradition magistrate has the jurisdiction to order the arrest of a foreign fugitive for the purpose of securing his presence for an extradition hearing before such justice, judge, or magistrate.

26. The primary function of a writ of habeas corpus is to release a person from unlawful imprisonment. The only issue that it presents is whether the person is unlawfully deprived of his liberty. The filing of the writ does not automatically delay further extradition proceedings.

27. An INTERPOL Red Notice is submitted by a government that is seeking the arrest of a fugitive for whom an arrest warrant has been issued, the fugitive's whereabouts are unknown, and extradition of the fugitive will be requested by the government that submitted the Red Notice.