July 01, 2014

Global Litigator: The Interplay Between the Executive and Judicial Branches in Extradition

In matters of extradiction, the courthouse is rarely more than a waystation en route to the Department of State.

Juliet S. Sorensen

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As Edward Snowden bides his time living in temporary asylum in Russia, speculation abounds worldwide as to whether he will have his day in a U.S. court. Snowden has been charged by a criminal complaint filed in the Eastern District of Virginia with theft of government property (18 U.S.C. § 641), unauthorized use of national defense information (18 U.S.C. § 793(d)), and willful communication of classified information and intelligence communications to an unauthorized person (18 U.S.C. § 798(a)(3)). On June 14, 2013, the complaint was filed and transmitted, along with a provisional arrest warrant asking the Hong Kong authorities to detain Snowden while the extradition request was being processed, by the United States to Hong Kong, a Special Administrative Region of the People’s Republic of China that has its own extradition treaty with the United States. Snowden had resided in Hong Kong since May 20, 2013.

When Snowden left Hong Kong for Russia on June 23, 2013, eyebrows were raised regarding the integrity of the extradition process. To what extent may a government disregard a request transmitted pursuant to a bilateral treaty? More specifically, to what extent do geopolitics—the purview of the executive branch—trump the application of the law—the province of the judiciary?

In matters of extradition in the United States, the judiciary is the front line, but the executive branch—specifically, the Department of State—is the bottom line. See generally T. Markus Funk, Mutual Legal Assistance Treaties and Letters Rogatory: A Guide for Judges 9, 16 (Fed. Judicial Ctr. 2014).

Internally, when requesting extradition from another country, the Department of Justice or local prosecutor prepares an extradition request that is reviewed by the department’s Office of International Affairs before being sent to the State Department’s Office of the Legal Adviser. The State Department then reviews the request to “identify any potential foreign policy problems.” U.S. Dep’t of Justice, Criminal Resource Manual § 612. If the State Department approves the request by the Department of Justice, it prepares a diplomatic note transmitting the request to the requested government’s ministry of foreign affairs.

Extradition from the U.S.

When an extradition is requested of the United States by a foreign country, the procedure is governed by statute. See 18 U.S.C. § 3184. In brief, the U.S. judicial officer reviews a complaint prepared by the Department of Justice on the basis of the foreign country’s request. The judge then issues an arrest warrant for the individual sought for extradition provided that there is an extradition treaty or other legislative basis to do so and that the crime charged is covered by the treaty or other basis. If the arrest warrant is executed, the judge then conducts a hearing to determine whether the evidence is sufficient to sustain the charge under the treaty. The court is not bound by the rules of evidence in such a hearing; rather, it is bound by 18 U.S.C. § 3190, which defers to the authentication standard of the requesting country, providing that “[d]epositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence . . . if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country.” (Extradition in the absence of a treaty may take place if a statute confers executive discretion to extradite. Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999).)

Seeking extradition on behalf of the requesting country, the Department of Justice must establish probable cause that the evidence is sufficient to sustain the charge. See, e.g., Bovio v. United States, 989 F.2d 255, 258 (7th Cir. 1993). If the judge makes a determination of sufficiency, he or she “shall certify” the sufficiency of the evidence to the Secretary of State and “shall issue” a warrant for the individual’s continued detention pending surrender by the Secretary of State. 18 U.S.C. § 3184. The Secretary of State, in turn, “may order” the individual delivered to the requesting country. 18 U.S.C. § 3186. The statute does not specify the circumstances under which the Secretary of State may choose not to order the person delivered. Id.

Discretion

Thus, the statutory scheme provides no discretion to the judiciary in the certification of the evidence—as long as there is probable cause, the certification and warrant shall issue—but it provides ample discretion to the Secretary of State in making the ultimate decision on the surrender. See United States v. Lui Kin-Hong, 110 F.3d 103 (1st Cir. 1997) (“It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited.”). By the same token, it is the State Department that makes the ultimate decision on whether to transmit a request.

The justification for the limited role of the judiciary was articulated by the First Circuit in Lui Kin-Hong, in which the court determined that the defendant was extraditable despite the change in Hong Kong’s status from crown colony of the United Kingdom to part of the People’s Republic of China since the issuance of the extradition request. “This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch.” Lui Kin-Hong, 110 F.3d at 110. The Ninth Circuit agreed in Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir. 1986), in which it declined to find an extradition request by Ireland to be a non-justiciable political question but pointed out that “the executive branch has the ultimate authority to decide whether to extradite the accused after a judicial determination that the individual is, in fact, extraditable.” The Ninth Circuit further noted the potential breadth of executive power in deciding whether to extradite, in that “the contours of executive branch discretion in this area have never been expressly delineated.”

This ultimate deference to the executive branch and specifically the agency responsible for foreign affairs holds true in most modern extradition treaties: for example, the newest extradition treaty between the United States and the United Kingdom provides that the executive branch, not the judicial branch, is the competent authority to determine whether or not extradition is barred by the political offense exception or because the offense in question is an offense under military, but not criminal, law. See Extradition Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States, Instruments of Ratification exchanged April 26, 2007, available at www.state watch.org/news/2007/jun/uk-usa- extradition-treaty.pdf. In this way, politics can always provide an escape hatch from the provisions of the treaty.

Now, however, Snowden is in Russia, which does not have an extradition treaty with the United States. In situations where no treaty or enabling legislation exists, U.S. law provides that the executive does not have the discretion to extradite: The power to provide for extradition is a national power that “is not confided to the Executive in the absence of treaty or legislative provision.” Valentine v. United States, 299 U.S. 5, 8 (1936). Thus, the authority to extradite is not vested in the executive branch absent a ratified treaty or statute. Like the United States, Russia asserts that it will not extradite absent a bilateral treaty; it can, however, grant or deny Snowden immigration status to enter and remain in Russia, and has done so by granting him temporary asylum.

As a practical matter, individuals seeking legal representation on issues related to extradition to or from the United States would benefit both from an experienced litigator and from an attorney specializing in government relations, particularly in the area of foreign affairs. In matters of extradition, the courthouse is rarely more than a waystation en route to the Department of State.

Juliet S. Sorensen

The author is a clinical associate professor of law at Northwestern Law School, where she teaches international criminal law.