Review of the Office of International Affairs' Role
in the International Extradition of Fugitives
Report Number I-2002-008
International extradition is the formal process by which a fugitive found in one country is surrendered to another country for trial or punishment. The process is regulated by treaty and conducted between the U.S. government and a foreign government. As of February 2001, the United States had extradition treaties with 109 countries.
The Criminal Division's Office of International Affairs (OIA), established in 1979, is the central point of contact within the Department of Justice (Department) for U.S. prosecutors and foreign governments seeking to extradite fugitives. OIA provides advice to U.S. and foreign law enforcement organizations and processes extradition requests for fugitives wanted in the United States and foreign countries.
Each year since 1990, OIA has opened between 670 to 950 extradition cases based on requests from U.S. prosecutors and foreign governments. During the same time period, OIA closed between 380 to 960 cases per year. OIA's case closure rate has not kept pace with the number of new cases, resulting in a pending caseload 2 that has increased over 100 percent since 1990. As of November 2000, OIA had 3,636 extradition cases pending - approximately 1,100 cases where fugitives wanted by foreign governments were believed to be in the United States and approximately 2,500 cases where fugitives wanted by the United States were believed to be in foreign countries.
The Evaluation and Inspections Division, Office of the Inspector General (OIG), reviewed the extradition process at OIA. The review assessed whether OIA managed the extradition process effectively and whether OIA carried out its role and responsibilities for the international extradition of fugitives.
The extradition of a fugitive from one country to another involves coordination and cooperation among law enforcement personnel, prosecutors, and other government officials. OIA's role is to facilitate the extradition process and provide advice and assistance on international criminal matters to both U.S. and foreign law enforcement authorities. OIA supports the Department, U.S. Attorneys' offices (USAO), and state and local prosecutors on issues of international law, including extraditions. It also serves as the United States' central point of contact for foreign law enforcement authorities on international criminal matters. 3
For extradition requests, OIA reviews legal documents to ensure they meet the treaties' requirements, provides to U.S. and foreign prosecutors advice and assistance that will increase the likelihood of fugitives' extraditions, and recommends ways of resolving problems with extradition cases. When an extradition in a foreign country is not viable, OIA can advise and assist U.S. prosecutors and law enforcement personnel about pursuing other options, such as seeking deportation of a fugitive or issuing an Interpol Red Notice 4 to facilitate the fugitive's apprehension. When a foreign government's extradition request does not meet the requirements of the United States, OIA informs the foreign government of the request's deficiencies. However, the foreign government, not OIA, is responsible for determining its next action based on its own government's recommendations.
OIA also negotiates agreements on international criminal matters in concert with the U.S. Department of State and other government agencies. OIA's principal concentration is bilateral extradition and mutual legal assistance treaties (MLAT), 5 but it also negotiates executive and general multilateral law enforcement agreements. In addition, OIA processes MLAT and non-treaty evidence requests and provides information and advice on international criminal matters to the Attorney General and other senior Department officials. 6
To accomplish its responsibilities, OIA has five teams - four country teams and a "Multilateral Team" - each headed by an Associate Director and staffed with attorneys, paralegals, and support personnel. The number of attorneys and paralegals varies by team.
According to OIA records, about 25 staff attorneys and 11 paralegals are assigned to four country teams that are responsible for processing requests from both U.S. prosecutors and foreign governments. The country teams process cases that fall within the following geographic areas:
At the time of our review, Team I had 386 open extradition cases, 107 of which involve the UK.
At the time of our review, Team II had 609 open extradition cases. Unlike the other country teams, no one country dominates Team II's extradition cases. The top four countries are: Switzerland with 86 cases, Federal Republic of Germany with 72 cases, the Netherlands with 66 cases, and France with 60 cases.
At the time of our review, Team III had 1,693 open extradition cases. More than half of these cases (849) involved Mexico.
At the time of our review, Team IV had 942 open extradition cases. Slightly less than half of these cases (456) involved Canada.
The country teams are supported by two OIA sections: the Docketing Unit and the Fugitive Unit. The Docketing Unit is responsible for recording the opening of all extradition cases in the automated Extradition Tracking System (ETS) and preparing the official case file folders that are maintained in the Docketing Unit's file room. 7 This unit also receives all incoming correspondence and excerpts information from it into ETS. Original documents are forwarded to the appropriate country team to be included in the extradition case file folders maintained by the teams. This unit also is responsible for recording the closing of all extradition case records in ETS and retiring files to the Federal Records Center.
At the time of our review, OIA had one attorney assigned to the Fugitive Unit. This unit was responsible for maintaining a registry of U.S. fugitives who, after the United States made an original extradition request to a foreign country, eluded law enforcement authorities. This unit notified the country teams when a U.S. fugitive was located abroad so the appropriate country team could contact the prosecutor to ascertain whether the jurisdiction was still interested in pursuing the extradition. The Criminal Division informed us that the unit was abolished after we completed our field work.
OIA has a "Multilateral Team" that is responsible for assisting in the negotiation of multilateral law enforcement treaties. 8 The team, consisting of two attorneys, serves as the Department's contact for judicial matters involving international tribunals and international criminal courts. The team provides assistance regarding law enforcement activities of multilateral organizations and coordinates activities of Department components engaged in multilateral law enforcement activities.
Over the past decade, OIA's total staff has not changed significantly, as shown in Table 1 below. The average number of attorneys and other professional staff is 41 and 17, respectively. While the total number of attorneys has decreased since 1992, the total number of administrative and other professional staff has increased.
Table 1. OIA Staffing Levels
|End of Fiscal Year||Attorneys 9||Administrative/Other |
Note: Staffing levels do not include clerical staff.
The numbers of extradition treaties and MLATs have grown significantly over the last ten years (see Table 2 below). The United States currently has 91 extradition treaties in force with 109 countries. Before 1990, there were four MLATs in existence. Since 1990, 34 additional MLATs have been established. Once these treaties take affect, OIA staff has the responsibility of processing the resulting extradition and legal assistance requests.
Table 2. Number of Treaties Entered into Force
From 1990 through February 1, 2001
According to data provided by OIA, the yearly number of incoming mutual legal assistance requests increased threefold from 439 to 1,555 between 1990 and 2000. During the same period, the number of outgoing requests more than doubled from 286 to 608. Appendix III includes a table prepared by the Criminal Division of mutual legal assistance requests by year. According to OIA officials, the expansion of MLATs has contributed to the increase in requests. In responding to our draft report, OIA officials suggested that the increase in mutual legal assistance requests has contributed to case management problems in OIA. The number of requests and methods used by OIA to process the requests were not reviewed during our assessment of the extradition process. Our interviews with OIA attorneys disclosed that mutual legal assistance requests were a large part of their workload. While OIA officials acknowledge that increased mutual legal assistance and treaty negotiation responsibilities do not excuse OIA's case management problems, they assert that these responsibilities increased OIA's overall workload and affected OIA's ability to handle its extradition responsibilities in a timely manner.
Although 33 extradition treaties entered into force 10 from 1990 through 2001, the number of new extradition cases opened by OIA per year did not increase, remaining in the 700 - 900 case range. (See Figure 1 on page 8 for the number of new cases per year.) Thus, OIA's pending workload did not grow as a result of new treaties.
[Chart of Figure 1: Extradition Cases Opened Calendar Years 1990-2000 is not available electronically.]
According to data provided by OIA, the number of OIA's pending extradition cases at the end of each calendar year has been growing, as shown in Figure 2 on page 10. Although the number of new cases has not increased steadily since 1990, the number of pending cases has increased rapidly. In OIA's incoming extradition caseload, 11 the number of cases pending at the end of 2000 is over 2.5 times as large as that pending at the end of 1990 (see Table 3 below). The number of outgoing extradition cases pending at the end of 2000 is almost twice as large as that pending at the end of 1990 (see Table 4 below).
Table 3. Opened, Closed, and Pending Incoming Extradition Cases
Calendar Years 1990 - 2000
Table 4. Opened, Closed, and Pending Outgoing Extradition Cases
Calendar Years 1990 - 2000
[Image of Figure 2: Total Opened, Closed and Pending Extradition Cases Calendar Years 1990-2000 is not available electronically.]
The Extradition Process
As the U.S. government's central point of contact in the extradition process, OIA's role combines both criminal justice responsibilities and international diplomacy. While processing an extradition request, OIA assesses the legal aspects of the specific case and whether the case complies with an extradition treaty. Part of this review involves ensuring that the extradition paperwork is properly prepared, the information regarding the fugitive is complete, the fugitive's location has been identified, documentation is included establishing probable cause that the fugitive has committed the specified crimes, and other legal requirements have been met.
Although OIA must ensure that each extradition request strictly adheres to treaty, legal, and procedural requirements, OIA staff use discretion to develop a course of action based on the circumstances of each particular case. OIA staff said a typical extradition takes two to four years from request through surrender. Other factors, including the complexity of the case or diplomatic considerations, may result in the extradition case remaining open for extended periods of time.
Even when OIA does everything it should, extraditions may not occur because of factors outside OIA's control. For example, an extradition cannot occur when a fugitive eludes law enforcement authorities or when foreign governments cannot provide documents needed to meet the United States' legal standards. In 2000, OIA closed about 630 extradition cases, of which about 350 fugitives or 56 percent were surrendered to the requesting country. The remaining cases were closed without apprehending the fugitive for a variety of reasons including the inability to locate the fugitive or because the requesting entity withdrew the request.
Based on extradition-related documents and interviews with OIA staff, we produced two flowcharts, Figures 3 and 4 on pages 12 and 13, which summarize the major steps in the extradition process for incoming and outgoing extradition requests. 12
[Image of Figure 3: Incoming Extradition Process is not available electronically.]
Source: OIA, Criminal Resource Manual, and U.S. Attorneys' Manual.
[Image of Figure 4: Outgoing Extradition Process is not available electronically.]
Source: OIA, Criminal Resource Manual, and U.S. Attorneys' Manual.
OIA's responsibilities vary depending upon whether the extradition is an "incoming" or "outgoing" extradition request. OIA advises and assists U.S. prosecutors and, to a lesser extent, foreign governments. In an outgoing extradition request, OIA has a more substantive role in ensuring the request is legally sufficient. Oftentimes, OIA provides the U.S. prosecutor with advice prior to the request being submitted for consideration by a foreign government. OIA is ultimately responsible for ensuring that all U.S. extradition requests are prepared properly and will meet the legal and diplomatic requirements of the foreign government. If the extradition request is rejected by a foreign government, OIA will continue to advise U.S. prosecutors on alternative courses of actions. Conversely, in an incoming extradition, OIA's role is to review the request for legal sufficiency and notify the foreign government of deficiencies in the extradition request. OIA provides advice to a foreign government, but the foreign government will determine the next action to take. In both outgoing and incoming extraditions, OIA most often is the sole channel for communication and information once the request is submitted for government consideration.
When extradition requests are received at OIA, the attorneys evaluate whether the submitted documents establish the basis for extradition, assess the probability of extradition based on those documents and their knowledge of U.S. and foreign legal systems, and, if necessary, consider alternative actions such as deportation to bring the fugitives to justice. To increase the chances of a successful outcome in an extradition hearing in a foreign country, an OIA attorney may advise a prosecutor that a superseding indictment is necessary so that the crime charged in the indictment corresponds to a crime in the country in which the fugitive is located. 13 In making their legal assessments, OIA attorneys have discretion in determining which actions are appropriate to process the cases.
In addition, OIA attorneys make decisions regarding the timing of actions. For example, based on their experience with particular countries, OIA attorneys may decide that pressing the foreign governments at certain times for responses may have adverse consequences. These decisions may be based on diplomatic issues unrelated to the extradition request, the relative priority of other pending extradition and MLAT assistance requests, or prior incidents with the country's government.
Aspects of the extradition process can require OIA attorneys to perform their duties in a time sensitive manner. For example, OIA is notified when a fugitive wanted by the United States has been located in a foreign country. Because some fugitives may flee the country while a formal extradition request is being finalized, extradition treaties establish a mechanism, called a provisional arrest, that allows a requesting government to ask a foreign government to temporarily arrest and detain a fugitive, thereby giving the requesting government time to prepare full documentation for the formal extradition request. This formal request must be submitted to the foreign government within the time period designated by treaty, usually one to three months. If the extradition request is not submitted within that time period, the fugitive will be released from custody.
OIA attorneys also travel abroad to meet with foreign country representatives to negotiate extraditions, to review the status of cases, and to resolve specific extradition issues.
Our inspection examined how OIA manages extradition requests. Because OIA has not developed written policies and procedures pertaining to its responsibilities in processing extradition requests within OIA, we examined case files for various types of extradition requests; interviewed OIA managers, staff, and other Department officials; and reviewed statistical information contained in OIA's case tracking system. While we obtained information about other OIA responsibilities, such as MLAT requests, our analysis did not encompass these matters. We performed our fieldwork from September 2000 to April 2001.
We conducted interviews with OIA managers, including the Acting Director, Deputy Director, and six Associate Directors; six attorneys and five paralegals assigned to all four country teams; the Federal Bureau of Investigation (FBI) and the U.S. Marshals Service (USMS) liaisons assigned to OIA 14; personnel in the OIA Docketing Unit; an OIA attorney detailed to the U.S. National Central Bureau (USNCB) of INTERPOL as its General Counsel; and three Assistant U.S. Attorneys (AUSA) who were the International/National Security Coordinators (INSC) 15 from three large USAOs - the Southern District of New York, the Central District of California, and the District of Columbia.
We collected statistical data on extradition requests from various sources. The Criminal Division's Management Information Staff (MIS) provided us with extradition case data maintained in ETS. OIA management provided us with extradition workload statistics showing the number of cases closed and opened each year. We examined regulations, policies, documents, and forms that pertain to extradition, such as the U.S Code, Criminal Resource Manual, and U.S. Attorneys' Manual. During our review, we examined the methods by which extradition cases were handled to identify case management practices among attorneys on the country teams.
We selected a sample of 70 extradition case files from the total pending cases as of November 2000 and cases closed during fiscal year 2000. Of the 70 cases, 39 were closed and 31 were open. Of the 70 cases, OIA did not produce 12 cases, 9 closed and 3 open, before we concluded our review. 16 Of the 58 cases reviewed, 30 were closed cases and 28 were open cases. Of the 30 closed cases, 15 were incoming requests and 15 were outgoing requests. Of the 28 open cases, 15 were incoming requests and 13 were outgoing requests. Our case file sample included extradition cases open for time periods ranging from one month to 18 years, from all country teams, assigned to selected attorneys, closed with selected disposition codes, and involving 29 countries including countries that have significant numbers of extraditions, such as Mexico.
For each case, we reviewed information in the case file and ETS. We recorded key dates, determined case actions taken by OIA, and reconciled case dates and status in the case files with those in ETS. In some instances we interviewed the attorney assigned to the case to obtain clarification of the case's status or activities. In addition, we checked 26 of the 28 incoming cases in our sample in the National Crime Information Center (NCIC) 17 database to determine whether any of the fugitives had a U.S. criminal history and whether crimes had been committed after the extradition request had been received by OIA.