Defending International Extraditions

Defending International Extraditions

Your new client, Alex, is leaving his office one ordinary afternoon when he is approached in the parking lot by several Federal Marshals. The Marshals say they just want to ask him a few questions, but grill him about a foreign business venture he'd invested in some years before. It soon becomes clear to Alex that the Marshals are not there to ask a few questions. Only after his arrest does he discover that a foreign government has submitted a diplomatic note requesting his provisional arrest on money laundering and bribery charges which were filed in this foreign state. These documents were submitted to a Federal Magistrate who had issued an arrest warrant a few days before. To make matters considerably worse, it appears that Alex has already been tried and convicted in absentia in this foreign state and faces a lengthy prison sentence in a country with a less-than-stellar human rights record.

While your client was born in the country now seeking to extradite him, he left his native country after significant political upheaval forced most of his family to flee under political duress. He has lived in the United States for fifteen years. He has become a U.S. citizen, he has attended American universities and he has three children who are American citizens. Most of his extended family, including aunts, cousins, and brothers, all live in the United States. His last contact with the foreign state involved a business investment he made two years before. Suspiciously, a political upheaval has recently returned power to the political party from which Alex's family had fled fifteen years previously. This regime also happens to be extremely hostile to foreign investment.

After being retained, you embark on a crash course in this somewhat obscure corner of the law. Alex's family has a million questions. How long until he is brought before a judge? What evidence is there against him? Will there be a trial? As a long time criminal defense practitioner you can ordinarily answer these questions easily, but you soon find that the rules in extradition cases are altered significantly.

Criminal defense attorneys are hard wired with constitutional law, thus we instinctually believe that the formal extradition of a United States citizen to a foreign nation would be imbedded with due process safeguards, intense scrutiny of evidence, heavy burdens of proof and lengthy hearings. Surely the United States would not ship off its own citizen to serve a jail sentence in another country without a full trial on the merits. However, you quickly ascertain that this is not the case. The ancient set of rules that applies to extraditions is weighted heavily in favor of returning your client forthwith to the requesting state. It is an almost medieval process governed by a web of decades-old bilateral and multilateral treaties obliging the United States to extradite various categories of persons charged with, or convicted of, specific crimes by the requesting country. This contractual creature is then inlaid with the United States' own statutory extradition scheme. (18 U.S.C. 3181-3196). The same burden of proof required for a local police agency to put a suspect in the back of a patrol car is the only thing standing between your client and jail time abroad. The archaic case law teeters on decades-old factual inaccuracies and century old political opportunism. "The extradition laws of the United States essentially ceased developing at the turn of the [twentieth] century." (Steven Lubet, "Extradition Reform: Executive Discretion and Judicial Participation in the Extradition of Political Terrorists", 15 Cornell Int'l L. Rev. 247, 253-54 (1982). With doctrine seemingly frozen in time, a practitioner must put aside what they think they know about criminal defense and grapple with the inherent contradictions and idiosyncrasies of extradition law.

While an arrest warrant was issued by a United States Magistrate, Alex is not charged in a criminal case in United States Federal Court. The proceedings are deemed sui generis, a term synonymous with the word "peculiar", meaning "of its own kind or class." The "matter" is assigned a civil case number and usually a United States Magistrate is assigned for all purposes. This is not a criminal case and the terminology is reflective of the peculiar nature of the proceedings. Alex is not a true "defendant" as yet, and is referred to as "requested person" or more dramatically "the fugitive." The caption can read "United States v. Alex" or simply "In the Matter of Extradition of Alex," depending on the district rules. As this is not a criminal case, there is no need for a prosecutor in the traditional sense. The AUSA acts as an advisor to the requesting state, representing both its interest in extraditing your client, as well as the United States' interests in upholding its treaty obligations. Also, the foreign state is not the prosecutor. It is referred to as the "requesting state" and the United States as the "requested state."

The more you learn more about extradition law, the more it appears that the United States courts act only as a rubber stamp in Alex's passport back to the requesting state. However, these cases are defensible. The following is a defense practitioner's practical guide to defending against a request for extradition and keeping your client in this country.

Bail:The Special Circumstance Test

As in a majority of criminal cases, the most important step in mounting a proper defense is securing your client's release on bond. The deck is already stacked against a requested person and attempting to defend him/her from inside a Metropolitan Detention Center is infinitely more daunting. That being said, you are facing an uphill battle. The Bail Reform Act does not apply to extradition proceedings, meaning that the court is not required to conduct a bail hearing within three days. 18 U.S.C. 3142(f)(2). There is a presumption against bail in an extradition case and only after demonstration of "special circumstances" can the court grant bail. Wright v. Henkel, 190 U.S. 40, (1903). Unfortunately, detention is the norm rather than the exception.

This "special circumstances" requirement creates a different standard for extradition cases than for federal criminal cases in which bail is granted unless the judicial officer determines that release will not reasonably assure the appearance of the defendant as required. 18 U.S.C. § 3146(a). To determine whether to grant bail, courts utilize a two-prong test. But ultimately there is no definitive test. Each case must be decided on an individual basis. In re Extradition of Mainero, 950 F. Supp. 290, 294 (S.D. CA 1996).

The first prong of this test requires the court to make the standard determination as to whether the person requesting bail would pose a danger to the community or become a flight risk if released. United States v. Leitner, 784 F. 2d. 159, 161 (2nd Cir. 1986). In making this assessment the Extradition Magistrate will consider whether the requested person fled the requesting country knowing that he had been charged with or convicted of the instant offense. The magistrate will consider whether or not the requested person has been living openly in the United States. The "fugitive" can present evidence that he/she was, at all relevant times, listed in the phone book, possessed a valid driver's license, as well as family ties in the United States. Gouvei v. Vokes, 800 F. Supp. 241, 243 (E.D. Pa. 1992).

The second prong of the test is to demonstrate sufficient special circumstances which are necessary to overcome this presumption against bail. The Wright case, which establishes this presumption, was authored over 100 years ago when a transatlantic journey took three weeks and mail was still delivered in horse drawn carts; a pre-technology time when it was possible for a person released on bail to just disappear. Despite the advent of Google searches, Interpol, and electronic monitoring, the courts are still concerned with the possibility of diplomatic embarrassment. They use extreme caution in releasing foreign fugitives facing extradition for fear they might abscond. The courts reason that a person wanted by a foreign government is more likely to have international contacts, increasing their risk of flight. The United States still has an overriding national interest in complying with its treaty obligations in order to preserve their own ability to extradite US fugitives. United States v. Taitz, 130 F.R.D. 442, 444 (S.D. Cal 1990).

Despite this aged res judicata, federal courts have liberalized the definition of "special circumstances" in keeping with "modern concepts of fundamental fairness." See e.g. United States v. Messina, 566 F. Supp. 740, 744 (E.D.N.Y 1983), West v. Janing, 449 F. Supp. 548, 552 (D. Neb. 1978). As cited in both Messina and Taitz, the State Department has noted that in international extradition cases "[i]n general it is the practice of the United States courts to allow persons provisionally arrested to remain at large on bond if there is no evidence that the person is about to flee." 1977 Digest of United States Practice in International Law 156.

Courts have identified a litany of circumstances considered special enough to warrant departure from the Wright presumption. These include: the raising of substantial claims upon which the defendant has a high probability of success on the merits of the case, a serious deterioration of health during incarceration, unusual delay in the extradition process, reason to believe the underlying charges cannot be supported under the treaty provisions, impropriety of the charge or procedure, the combined factors of a lengthy extradition hearing, lack of prior record, the defendant not charged with a crime of violence, an inability to carry out religious rituals, the combined factors of financial assistance the defendant gave to his family, the provisional nature of the arrest, no prior criminal record, possible delay in the extradition proceedings, the fact that charges were dropped and then reinstated, the dedication of friends willing to post a home as security for defendant's release, and the defendant's need to consult with his attorney in a civil action upon which his whole fortune depends. (The Matter of Requested Extradition of Kirby, 106 F.3d 855 (9th Cir. 1996); United States v. Salerno, 878 F.2d 317 (9th Cir. 1989); Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210 (D. Nev. 1993); In re Extradition of Coe, 261 F. Supp.2d 1203(C.D. Cal., 2003); In re Extradition of Hamilton-Byre, 831 F. Supp 287, 290 (S.D.N.Y 1993); In Re Extradition of Molinar, 182 F. Supp. 2d 684, 689 (N.D. Ill. 2002); United States v. Williams, 611 F2d. 914, 915 (1st Cir. 1979). This list is by no means exhaustive. The term "special circumstances" means just about anything. In a recent unpublished decision where the district court judge reversed the magistrate's denial of the bail, the court, on it's own, determined one of the "special circumstances" to be "cultural assimilation". There are no limitations on what constitutes "special circumstances".

The court does not have to consider each circumstance in isolation, but can consider the totality of the circumstances in determining whether "special circumstances" exist in a certain case. Matter of Extradition of Nacif-Borge, 829 F. Supp. 1210, 1214.

The best way to secure release pending the extradition proceedings, is to throw in the proverbial kitchen sink. Every possible circumstance facing the client that could be construed as "special" must be explored and put into the motion for bail. This means that the attorney must prepare and investigate the case in its entirety at the outset of the case.

The first thing counsel must do is look very carefully at the treaty. Some treaties include time barring statutes of limitations. Some limit the types of crimes for which a person can be extradited. There are exceptions for so called "political offenses" and requirements that the offense charged be a crime in both the requested and requesting states. Some of the older treaties even include provisions that allow a requested state discretion in denying the extradition of its citizens. As a likelihood of success on the merits of the case can be considered at a bail hearing, each of the allowable defenses must be thoroughly explored and included in the bail motion.

Alas, this is no simple task. No box of discovery will be delivered from the requesting state, there will be no police reports, and no mountains of supporting documents. In all likelihood, counsel will receive only a copy of the treaty between the two countries, assorted foreign criminal codes and a complaint outlining the factual basis for the crime in broad strokes. There will be a jurisdictional recitation based on the treaty requirements between the U.S. and the requesting state, and an assertion that the accused resides in this district. With very little to go on, an attorney must do extensive independent investigation and research into the viability of defenses before the bail hearing.

The treaty may bar extradition if the statute of limitations has run out in either the requesting or requested states. Others limit the statute of limitation to that of the requested states. Often, due to the slow process of submitting applications to the Secretary of State, significant time may have elapsed since the acts charged in the complaint. It is essential to research the tolling laws of the requesting state.

An exception for political offenses is built into most treaties. There are two types of political offenses, so called "pure political" offenses such as sedition, treason and espionage and "relative" political offenses which encompass general crimes and offenses aimed either at accomplishing political change by violent means or at repressing violent political opposition. These exceptions were designed to protect those engaged in internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power. Quinn v. Robinson, 783 F.2d 776, 810 (9th Cir.,1986); See In re Ezeta, 62 F. 972, 998 (N.D.Cal.1894). An extraditee must make a prima facie showing that he is entitled to the protection of the political offense exception. Ramos v. Diaz, 179 F. Supp at 463.

The exception for political offenses is "applicable only when a certain level of violence exists and when those engaged in that violence are seeking to accomplish a particular objective." Koskotas v. Roche, 931 F.2d 169, 172 (1st Cir. 1991) citing Quinn, at 810. It is not enough to show that the reasons behind your client's conduct were politically motivated or that the reason the foreign state is seeking extradition is politically driven. Ahmad v. Wigen, 910 F. 2d 1063, 1066 (1990); Eain v. Wilkes, 641 F 2d 504, 516 (1981).

While a given case may have political overtones or the request may have been politically motivated, in order to qualify for the political offense exception, a requested person must pass a two prong "incidence test" requiring a showing of:

(a) The existence of an uprising or other violent political disturbance in progress at the time the acts comprising the offense were committed; and (b) That those acts were incidental to, in the course of, or in furtherance of, that uprising or other violent political disturbance. Id.

The exception applies only to uprisings that attract sufficient adherents to create the requisite amount of turmoil, meaning that sporadic acts of violence committed by a small group of persons, even though targeted at the political structure of the requesting country, are insufficient.

Every judge and magistrate who has considered the question has found that the unrest in Northern Ireland during the 70's and 80's met the uprising or violent political uprising component. It is clear that courts have not required proof of the occurrence of an armed insurrection to satisfy this requirement. Therefore it would appear that proof of a significant level of organized guerilla activity is sufficient to satisfy the existence of the violent political disturbance requirement of the incident test. No court has considered the likelihood of the success of the uprising or other violent political disturbance as relevant to the issue of whether a person is entitled to protection under the exception.

The act must be casually or ideologically related to the uprising. Quinn, 783 F.2d at 807, 809. A rational nexus between the alleged crimes and the prevailing turmoil must be demonstrated. In searching for such a connection, the focus of inquiry is on the circumstances, and on the status of those harmed, and not on whether the acts merely were committed during the disorder. See Ornelas v. Ruiz, 161 U.S. 502, 511, 16 S.Ct. 689, 692, 40 L.Ed.2d 787 (1896), Matter of Extradition of Artukovic, 628 F.Supp. 1370, 1376 (C.D.Cal.,1986).

Which side of the conflict a defendant is on is not a decisive factor, only that the act was committed as part of the political disturbance or conflict between contesting political powers. In Alex's case, however, it appears that while his prosecution and "trial" in the requesting state were politically motivated, his conduct would not fall under the protections of the political offense exception. While there was some political turmoil present in the requesting state, it would be a semantic stretch to classify this turmoil as "violent political uprising." It would be an even greater stretch to categorize his investment as an act "in furtherance" of that uprising. However, as you will be afforded so few opportunities to explain to the magistrate the somewhat suspicious circumstances by which this prosecution arose, it is a good idea, irrespective, to thoroughly flesh out the political offense exception in the bail motion.

Some older treaties allow for extradition only for certain crimes. Under these treaties extradition is limited to the offenses specifically listed. Some also provide for the abettor of these crimes, others do not. Most modern treaties require only that the offense charged be a crime in both the requested and requesting nations. To satisfy the "dual criminality" requirement, neither the name of the offense nor the elements of the offense purportedly committed in a foreign country need to be identical to the elements of a similar offense in the United States. It is enough that the conduct involved is criminal in both countries. See Kelly v. Griffin, 241 U.S. 6, 14 (1916). The dual criminality provision in the applicable treaty is met if the particular acts charged are criminal in both jurisdictions. Messina v. United States, 728 F.2d 77, 79 (2d Cir.1984).

Alex has been charged with a crime that roughly translates to "secreting of funds" and "betrayal of government", neither of which can be precisely located in any United States or State Penal Code. However, the conduct cited resembles the U.S. crimes of money laundering and bribery. It is the conduct that will be determinative, not the title of the offense.

Your strongest defense would of course be to attack the paltry probable cause offered by the requested state in the complaint. However, this can be a risky angle as the court's ultimate duty at the hearing is to determine whether or not probable cause exists. It would be unfortunate if they were given the opportunity to do so at the bail hearing and it was not resolved in your client's favor.

Securing Alex's release on bail is the primary function of the bail proceedings. A true trial on the merits is not afforded at any point in the process. As discussed later, the minimal burden of proof required to certify a requested person for extradition usually does not require the AUSA to even present witnesses at the extradition hearing. Thus, the bail hearing provides an essential opportunity to put information about the case before the Extradition Magistrate. Because special circumstances justifying bail include a substantial likelihood of success on the merits, the bail hearing can be treated almost like a "pre-trial" hearing.

Discovery

The requesting state has 60 days after the accused is provisionally arrested to file a formal request for extradition. Counsel will receive an ornate document with stamps and seals from various foreign and U.S. State Department agents that have reviewed and certified the document. The document will flesh out some of the particulars of the offense by way of translated witness declarations, foreign criminal complaints, arrest warrants and sentencing documents. Each treaty recites the documents that must be submitted in support of a request for extradition. Counsel must carefully examine the applicable treaty to ensure that each of those items has been provided. Regardless, these documents will provide very little information necessary to mount any one of the particular defenses outlined in the bail motion.

A formal discovery request or a motion to compel discovery can be made on the AUSA. Although there is no explicit statutory basis for ordering discovery in extradition hearings, the Extradition Magistrate has the right, under the court's "inherent power," to order such discovery procedures "as law and justice require." Merino v. United States Marshal, 326 F.2d 5, 12-13 (9th Cir.1963),see First National City Bank of New York v. Aristeguieta, 287 F.2d 219, 226 (2d Cir.1960), vacated as moot, 375 U.S. 49, 84 S.Ct. 144, 11 L.Ed.2d 106 (1963), Jhirad v. Ferrandina, 536 F.2d 478, 484 (2nd Cir. 1976). However this request will be limited to the documents in the possession and control of the United States. Fed. R. Crim. P. 16(a)(1)(E). Whether Brady applies to extradition cases has not been decided. Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir.1993); see also In re Extradition of Drayer, 190 F.3d 410, 415 (6th Cir.1999)

This method could be useful in obtaining documents from U.S. government agencies such as the State Department. Often a requesting state must make several applications via diplomatic note before the State Department will pass the information on to the District Court. It can be helpful to discovery if there have been similar, previous applications. If so, it is important to note any reasons for denial of those applications.

Unfortunately, the documents and testimony most necessary to mount a defense will most likely be located in the requesting state. United States courts have no subpoena power in foreign countries. Mancusi v. Stubbs, 408 U.S. 204, 212-214 (1972). The only statutory method for obtaining evidence from abroad is through the transmittal of letters rogatory. As the somewhat antiquated name suggests, this process was developed to accommodate international discovery before the days of commercial air travel and email. Title 28 USC § 1781 and 1782 describe the transmittal of letters through the Department of State and through the district court. It is a slow, laborious process that must pass through several diplomatic channels. The State Department's own advisory letter states, "Letters rogatory are a time consuming, cumbersome process and should not be utilized unless there are no other options." The Secretary of State's website also provides an explanation of the process and sample letters. It is, however, the only method for a court in the United States to communicate with the court of another country. This is based only on a comity between nations, meaning there is no legal obligation for the foreign court to respond. This method may be a defendant's only chance to request additional documentation aside from the sparse package received with the formal request for discovery.

Some may be tempted to utilize Mutual Legal Assistance Treaties (MLATs) between the two nations for relief. Currently the United States has thirty-one of these treaties in force. These treaties legally obligate the signatories to offer the opportunity to summon witnesses and take depositions, issue warrants and serve process in a foreign state. The Office of International Affairs in the Criminal Division of the United States Department of Justice specializes in processing requests to and from the United States for extradition and mutual legal assistance. However, it is likely that the language of these treaties will not extend this assistance to an individual defendant. Courts have thus far also refused to extend relief under MLATs to defendants, finding that while the AUSA has the power to request such documentation from a signatory country, "having the authority to seek tapes or transcripts through a treaty is not the same thing as having the power to secure them." U.S. v. Mejia, 448 F.3d 436, 444 (C.A.D.C., 2006)

A practitioner's only option is usually to conduct his/her own investigation. It may be necessary to travel to the requesting country to interview potential witnesses and to locate critical documents. It will be useful, if not necessary, to retain local counsel in the requesting state to assist in whatever procedural mechanism is utilized to obtain discovery. Should you locate a witness, and should that witness be willing to travel but find costs to be prohibitive, some relief can be sought under 18 U.S.C. 3191.

Even if you are successful in procuring documentation or testimonial evidence via letters rogatory or through your own investigation, more difficulties arise as to how to properly submit this evidence to the court. 18 U.S.C. 3190 permits the demanding country to introduce properly authenticated and certified ex parte depositions, et cetera, gathered at home. The ex parte advantages of Section 3190 are not available to the defendant. The provisions for authenticating foreign documents must still be complied with. 18 U.S.C 3491; 18 U.S.C. 3503 (admission of foreign business records); 18 U.S.C. 3494 (authentication by consular officials). All of this being said, the Federal Rules of Evidence do not apply to Extradition Proceedings. Fed. R. Evid. 1101(d)(3); Fed. R. Crim. P. 1(a)(5).

The Extradition Hearing

The hearing is not a trial. It is presided over by the Extradition Magistrate. Like an actual trial, the burden of proof is on the government, but the similarities between the two proceedings end there. The government need only establish four things in order for your client to be "certified for extradition".

First, it must be established that there is a valid extradition treaty in place between the requesting and requested states. The court will most often defer to the State Department to make this determination. Second, the government must show that the person in custody is, in fact, the same person charged in the requesting state. Most formal requests include photographs, fingerprints and other identifying documents. Third, it must be shown that the charged offense is both an extraditable offense under the applicable treaty and that the offense is a crime in both countries. Fourth, the requesting state must offer sufficient probable cause that the requested person has committed the offense.

The probable cause determination will usually be made based on the standards of law in the requested country, i.e. "whether the evidence is sufficient to cause a person of ordinary prudence and cause to conscientiously entertain a reasonable belief of the accused's guilt." Based on some variant treaty language, some courts have applied the probable cause standard of the state "where the person sought shall be found." Regardless, in most cases it isn't necessary for the AUSA to even call witnesses to meet this burden of proof. Often the mere admittance of the sworn affidavits delivered in the formal request for discovery into evidence will be sufficient.

On top of this minimal burden, the defense is also presented with significant roadblocks to presenting evidence to rebut the requesting states assertions.

Rule of Non-Contradiction

The aptly named "Rule of Non-Contradiction" prohibits a requested person from introducing evidence which contradicts the demanding country's proof. This includes evidence to establish alibi, evidence of insanity, evidence that impeaches a witness's testimony and even recantation evidence. (See generally, M. Cherif Bassiouni, magisterial treatise, "International Extradition: United States Law and Practice", 654-789 (3d ed. 1996). The precise limitation varies from district to district. See e.g. In Re Atta, 706 F. Supp 1032, 1051 (E.D.N.Y)

The purpose behind such a maddeningly limiting rule is to accommodate the precise function of an extradition hearing. The opportunity to present contradictory evidence challenging probable cause would give a requested person the option of insisting upon a full hearing and trial of his case in the United States. "The result would be that the foreign government, though entitled by the terms of the treaty to the extradition of the accused for the purpose of a trial where the crime was committed, would be compelled to go into a full trial on the merits in a foreign country, under all the disadvantages of such a situation, and could not obtain extradition until after it had procured a conviction of the accused upon a full and substantial trial here. This would be in plain contravention of the intent and meaning of the extradition treaties." In re Wadge, 15 F. 864, 866 (S.D.N.Y.1883).

Some courts have carved out a hairline distinction between "contradictory" and "explanatory" evidence, allowing a requested person some leeway in presenting evidence to negate probable cause. In re. Sindona, 450 F Supp. 672, 685 (S.D.N.Y 1978). The extent to which explanatory evidence is to be received is largely at the discretion of the judge ruling on the extradition request. Collins v. Loisel, 259 U.S. 309, 315-17, 42 S.Ct. 469, 66 L.Ed. 956 (1922); Charlton v. Kelly, 229 U.S. 447, 461 (1913);

Rule of Non-Inquiry

On the other hand, judges will not inquire into the fairness of the proceedings that await the accused in the requesting country. Following what is known as the "Rule of Non-Inquiry" a court is not permitted to consider the requesting states, regardless of the lack of substantial due process or human rights conditions a person will face in the requesting state.

While the United States holds fast to the general rule of "non-inquiry" into the treatment a requested person might receive in the requesting state, the court in Gallina v. Fraizer "confess[ed] some disquiet" over this rule and suggested reconsideration where defendants faced procedures "sufficiently antipathetic to a federal court's sense of decency." Gallina v. Fraizer 278 F.2d. 77, 78 (2nd Cir. 1960). The 2nd Circuit has inquired into the due process protections of requested persons, observing that "minimal safeguards to ensure a fair trial in the foreign tribunals were provided" concluding that "although the Constitution cannot limit the power of a foreign sovereign to prescribe procedures for the trial and punishment of crimes committed within its territory, it does govern the manner in which the United States may join the effort." Rosado v. Civiletti, 621 F. 2d 1179, 1195 (2nd Cir).

With all of these limiting "non-rules", the extradition hearing begins to feel like a non-hearing. Even if a requested person was able to introduce "explanatory" evidence, American courts have no subpoena power over foreign national witnesses and evidence located outside the United States. Criminal subpoenas issued pursuant to Rule 17 of the Federal Rules of Criminal Procedure are served abroad pursuant to 28 U.S.C. 1783 come with strings. A subpoena cannot be issued to a non-United States citizen outside the country. Thus, even if granted the ability to introduce witness testimony or other documentary evidence, the logistics of securing the witness at the hearing mount more impressive and costly hurdles.

Post-Certification

If your client is fortunate enough to avoid certification, they are still not out of the woods. There is no restriction prohibiting the requesting government from refiling the same request for extradition with the State Department using the same or new evidence. Collins v. Loisel, 262 U.S. 426 (1923).

Should your client be certified for extradition, there is no direct appeal. The only remedy is to file a habeas petition under 18 U.S.C. 2241.94. The appellate court will only review whether there is "any evidence" to support the finding of probable cause, whether the court has jurisdiction and whether the crime falls under the treaty. Fernandez v. Phillips, 268 U.S. 311, 312 (1925).

If the circuit court also certifies the extradition, an extraditee's last resort may be the Executive Branch. Most treaties include provisions giving the Secretary of State the final word in extradition certification. The Executive Branch has the discretion to deny extradition under the treaty, based on the finding that the offense was "politically motivated," a much more broad inquiry than the political offense exception. The Department of State does not grant any hearings on the issues but will consider any written submissions the requested person wishes to make. This is often the only opportunity you have to present evidence that the extradition is a politically motivated act.

Conclusion

Extradition law can be a very frustrating process. With lower burdens of proof and stymied discovery these cases require more effort and energy than most. Should you be so fortunate as to uncover exculpatory facts from the foreign state, you have limited methods of presenting them to the court. You may have witnesses, but presenting their testimony might violate the rule of non-contradiction. Each time there is hope of a viable defense a brick wall seems to appear in the form of some 100 year old case. Your sense of injustice rages. Extradition law is in need of reform.

But don't give up. Because the majority of the law is so outdated and limited there are no bounds on how creative you can be. In effect, the rigidity of the rules that apply in standard criminal defense matters have little or no bearing in an extradition case. In other words, "just go for it." Remember that by vigorously litigating each issue new case law can be forged to drag extradition law lumbering into the new millennium.