International Extradition and the Treaty Requirement

International extradition shares a name with interstate rendition and almost nothing else. There is no constitutional duty between the United States and a foreign state, no governor, no uniform act. There is a treaty, a diplomatic request, a judicial officer who decides whether the case may proceed, and an executive officer who decides whether it will.

The treaty requirement

Federal law makes the point at the front of the chapter. The provisions relating to the surrender of persons who have committed crimes in foreign countries continue in force only during the existence of a treaty of extradition with that foreign government. Without a treaty there is no authority to surrender, and a request from a country with which no treaty exists is answered as a matter of foreign relations rather than through the courts.

One narrow statutory exception exists. Surrender is permitted without regard to the existence of a treaty where the person is not a citizen, national or permanent resident of the United States and has committed a crime of violence against a national of the United States in a foreign country, on the Attorney General's written certification that the offenses would constitute crimes of violence as defined in federal law and are not of a political nature. The exception is used rarely and it does not create a general power.

Because the treaty supplies the authority, its text controls almost everything that follows: which offenses are extraditable, whether nationals must be surrendered, what documents the requesting state must provide, what deadlines apply to a provisional arrest, and what the requesting state may do with the person afterward. Two extradition cases in the same courthouse can proceed under materially different rules because the treaties differ.

How the request arrives

A formal request travels through diplomatic channels rather than between prosecutors. The requesting state transmits its request and supporting documents to the Department of State, which reviews it for treaty sufficiency. The matter then passes to the Department of Justice, and a federal prosecutor files a complaint under oath in the district where the person is found, charging that the person has committed an offense covered by the treaty.

Documents from abroad are handled by a special authentication rule. The certificate of the principal diplomatic or consular officer of the United States resident in the foreign country is proof that depositions, warrants and other papers offered are authenticated in the manner required. That provision removes what would otherwise be an impossible foundation problem and is one reason the hearing moves quickly.

What the hearing decides

The statute directs that any justice or judge of the United States, or any authorized magistrate judge, may issue a warrant on the complaint, hear the evidence of criminality, and if the evidence is sufficient to sustain the charge under the provisions of the proper treaty, certify the same, together with a copy of all the testimony taken, to the Secretary of State. The same officer issues a warrant committing the person to the proper jail to remain until surrender is made.

The inquiry is not a trial. The judge asks whether the person is the one sought, whether the offense is covered by the treaty, whether the treaty is in force, whether the requirement that the conduct be criminal in both countries is satisfied, and whether there is competent evidence establishing reasonable ground to believe the person committed the offense. Merits defenses, credibility contests and most exculpatory material are outside the inquiry.

Neither certification nor denial is an appealable order. A person certified for extradition proceeds by petition for a writ of habeas corpus, and the review is confined to jurisdiction, treaty coverage and whether any competent evidence supported the probable cause finding. Where a complaint is denied, the government may refile before a different judicial officer, since denial likewise cannot be appealed.

The executive stage and the clock

Certification does not order anyone surrendered. It transmits the record and establishes that surrender is legally permissible. The Secretary of State may then order the person committed under the statute to be delivered to an authorized agent of the foreign government, to be tried for the offense charged, and that agent may hold the person in custody and take the person to the foreign territory pursuant to the treaty.

The executive stage is where considerations excluded from the hearing are weighed: humanitarian concerns, the likelihood of mistreatment, the person's health, and the diplomatic context. Courts have generally treated the surrender decision as committed to the executive and have declined to review the weighing itself, though litigation about the availability of any review continues.

One statutory deadline constrains the process. Where a person committed for extradition is not delivered and conveyed out of the United States within two calendar months after commitment, a judge may, on application and after reasonable notice to the Secretary of State, order the person discharged, with allowance for the time actually required to convey the prisoner from the jail to the border by the most expeditious route. That provision is the international counterpart to the deadlines that appear elsewhere in this field, and it is the practical answer to indefinite commitment.

The requirement the hearing tests most often is treated in dual criminality. What the requesting state may do with the person after surrender is limited by the rule of specialty, and the arrest that frequently precedes any formal request is governed by provisional arrest. None of this resembles rendition between states, which rests on a constitutional obligation rather than on a negotiated bargain, and importing assumptions from one into the other is the most common source of error in a case that involves both.