**REPORT ON INTERNATIONAL EXTRADITION**

**SUBMITTED TO THE CONGRESS PURSUANT TO SECTION 211 OF THE ADMIRAL JAMES
W. NANCE AND MEG DONOVAN**

**FOREIGN RELATIONS AUTHORIZATION ACT,**

**FISCAL YEARS 2000 AND 2001**

**(PUBLIC LAW 106-113)**

**REPORT ON INTERNATIONAL EXTRADITION**

### **PURSUANT TO SECTION 211 OF PUBLIC LAW 106-113**

This report is submitted by the Secretary of State to the Senate
Committee on Foreign Relations and the House Committee on International
Relations in response to the requirements of Section 211 of the Admiral
James W. Nance and Meg Donovan Foreign Relations Authorization Act,
Fiscal Years 2000 and 2001, Public Law 106-113. A copy of Section 211 is
attached hereto. As provided in Section 211(a), this report is based on
a review of extradition treaties and other agreements containing
extradition obligations to which the United States is a party. Pursuant
to Section 211(a), the discussion herein is limited to those treaties
where the United States has diplomatic relations with the treaty
partner. This report incorporates input and contributions from the U.S.
Department of Justice.

Section 211(b) sets forth five issues that are to be addressed in this
report. The issues reflect concerns that have arisen from time to time
in cases under the U.S. Government's international extradition practice.
This report begins with an overview of United States extradition policy
and practice in order to provide context for the answers that follow to
the specific questions contained in Section 211(b).

**[Background: Overview of United States International Extradition
Practice]{.underline}**

United States extradition practice is based almost entirely on
individually negotiated bilateral treaties, which the United States
brings into force following Senate advice and consent to
ratification.[^1] The United States is currently a party to over 110
such treaties. While most of these treaties currently in force have been
negotiated in the last 30-40 years, many of the treaties still in force
are quite old, in some cases dating back to the 19^th^ Century.[^2]

The United States has embarked on an ambitious program of updating many
of our older bilateral extradition treaties, particularly with countries
with which we have, or can anticipate, a significant law enforcement
need to seek or make extraditions. In October 1998, for example, as part
of the largest group of law enforcement treaties ever heard at once, the
U.S. Senate considered and approved eighteen extradition treaties \--
sixteen were complete new treaties and two were protocols to existing
treaties.[^3]

In broad outline, the extradition process in U.S. practice is as
follows: U.S. requests for extradition to other countries originate with
federal, state or local prosecutors who are seeking the return to the
United States of a fugitive sought for trial or punishment. The Justice
Department's Criminal Division helps these prosecutors draft outgoing
extradition requests and helps ensure that the requests meet the
requirements of the particular treaty and foreign law. Once an outgoing
U.S. extradition request is finalized, it is forwarded through
diplomatic channels to the foreign government for its review and action.
Practice varies in countries receiving our requests, but typically the
foreign government forwards the request to its courts for a judicial
determination on whether a fugitive is extraditable under the treaty and
relevant domestic law.[^4] Following a judicial determination of
extraditability, the final decision for extradition generally rests with
the foreign government's executive branch. If it approves extradition,
the foreign government will make arrangements to transfer custody of the
fugitive to U.S. law enforcement authorities.

Requests by foreign governments for fugitives in the United States are
handled along the same general lines. Extradition requests are provided
to us via diplomatic channels and are initially reviewed at the
Department of State. Where appropriate, the State Department transmits
the request to the Department of Justice with a declaration attesting
that there is an extradition treaty in force with the state requesting
extradition, that a request has been made pursuant to the treaty, and
that the offense for which extradition is sought is covered by the
treaty. The Department of Justice then reviews the request and, if it is
complete and legally sufficient under U.S. domestic law and the relevant
treaty, DOJ initiates the extradition proceeding in U.S. District Court
on behalf of the foreign government for a determination of whether the
person is extraditable. If (and only if) a fugitive has been found
extraditable by our courts the Secretary of State ultimately decides
whether a fugitive will be surrendered, and has the authority to deny
extradition, [e.g.]{.underline}, if she determines that it is more
likely than not that a fugitive sought for extradition will be tortured
if extradited.[^5] When the Secretary signs a surrender warrant, the
fugitive is delivered to law enforcement officials of the requesting
country, to be transported to that country for trial or, if already
convicted, to serve a sentence.

**Response to Sections 211 (b)(1) and 211 (b)(2) of Public Law
106-113:**

"Discuss the factors that contribute to failure of foreign nations to
comply fully with their obligations under bilateral extradition
relations with the United States" and "Discuss the factors that
contribute to nations becoming 'safe havens' for individuals fleeing the
United States justice system."

**Overview**

The United States generally enjoys a productive and mutually beneficial
extradition relationship with our treaty partners*.* Fugitives are
brought to justice in the United States, and the U.S. Government is able
to return fugitives seeking safe haven in the United States to face
trial or punishment in the legal and judicial systems of our treaty
partners. In recent years, many hundreds of fugitives have been returned
to and from the United States based on extradition requests or
immigration or other proceedings that ensue following extradition
requests. Many of these fugitives were returned to face justice for
serious offenses such as narcotics trafficking, terrorism and other
violent crimes, and major financial crimes. According to U.S. Justice
Department statistics, in the past 5 years over 600 U.S. extradition
requests have been granted by foreign countries, and more than 200 other
requests have resulted in the return of fugitives to the U.S. via
deportation or expulsion.

For many reasons, however, not every request for extradition results in
a fugitive being delivered to the requesting country. Sometimes the
requesting state doesn't know where a fugitive is located and makes
multiple contingency requests for provisional arrest and extradition. In
other cases, fugitives learn they are being sought and flee or go into
hiding. For example, over the past several years the U.S. has made
requests for the provisional arrest of BCCI defendant Gaith Pharaon to
over two dozen countries, but to date he remains a fugitive. Even
following a fugitive's arrest, court proceedings and appeals can last a
very long time and can be delayed by fugitives' exercising all possible
rights to challenge extradition. For example, fugitives in Mexico and
elsewhere in Latin America can seek judicial *amparos* (akin to habeas
corpus review).[^6]

Apart from these general issues of timing, extradition treaties provide
specific bases on which extraditions can be delayed or denied. The
obligation to extradite under a bilateral extradition treaty is not
absolute and protections are built in to accommodate both U.S. and
foreign interests. While the exact terms of such treaties result from
country-specific negotiations and thus vary somewhat among the treaties,
set forth below are the typical types of qualifications on the
obligation to extradite. When these limitations are triggered in
particular cases, some might say that the U.S. or the foreign country
(at least temporarily) becomes a "safe haven" from extradition, even
though the reason for non-extradition is consistent with the terms of
the applicable treaty and in some cases a prosecution in a country other
than the United States might occur.

As the discussion below reflects, there are a number of reasons that
international extraditions are delayed or denied, some less problematic
than others from a policy perspective. In some cases, most notably with
respect to the extradition of nationals, foreign laws and policies can
present undesirable impediments, and these cases will be discussed
first. In these circumstances, the United States has embraced a broad
and aggressive "nowhere to hide" policy in its relations with other
countries to attempt to break down these barriers to international
extradition. In other cases, extradition may be delayed or impeded by
the courts of our treaty partners, either by virtue of lengthy judicial
proceedings or in rare cases because foreign courts have questioned the
validity of the relevant extradition treaties. In these cases, we seek
to work closely with our treaty partners to address the judicial
impediments. In still other scenarios, extraditions are impeded in some
way, either for the United States or our treaty partners, because of
reasons that are understandable and not necessarily objectionable, such
as an inability to locate a fugitive, an inability to extradite because
crimes are not covered under a particular treaty, a lack of sufficient
evidence to sustain a judicial finding of extraditability in the
Requested State, or simply an erroneous adverse decision on dual
criminality or other grounds by an independent foreign judge charged
with handling a U.S. request for extradition.

**Impediments to Extradition**

\-- **Restrictions on the Extradition of Nationals**

Perhaps the highest profile exceptions to the obligation to extradite
are bars or limitations in some countries on the extradition of their
nationals. The United States makes no distinction between extraditing
its own nationals and nationals of other countries. We advocate that all
countries adopt the same policy. However, a number of our major treaty
partners, such as France, Germany and Brazil, cannot extradite their
nationals by virtue of their constitutions or domestic laws. In some
cases, such as Mexico and Bolivia, the executive branches have been
given discretion under domestic legislation to extradite their
nationals, but only under specified circumstances. In Israel, current
law allows persons who are nationals and residents of Israel at the time
extradition is sought to be extradited so long as the requesting country
promises that any sentence imposed on the fugitive as the result of the
extradition will be served in Israel. Non-resident Israelis may be
extradited for trial without the restriction of having to be returned
for service of sentence.[^7]

Many countries with restrictions on the extradition of their nationals
have jurisdiction under their domestic laws to try their nationals for
major crimes regardless of where the offense was committed and sometimes
undertake to pursue such prosecutions. This would typically be the case
in countries with civil law systems, including the majority of countries
in Europe and South America, and not in countries with common law legal
systems, including the United States. The U.S. Government's bilateral
extradition treaty in such cases often provides that if extradition is
refused solely on the basis of nationality, the case must then be
submitted by the foreign government to its authorities for prosecution
if we so request. Having a fugitive tried in his home country under
these circumstances is a far less desirable outcome than having the
fugitive returned to the U.S. for trial and punishment, but U.S. law
enforcement authorities sometimes view a foreign trial as the best
alternative when extradition is not possible.[^8]

The Departments of Justice and State have been pursuing vigorous,
across-the-board efforts to convince individual countries and the world
community that refusal of extradition on the ground of nationality is no
longer appropriate, given the ease of flight and the increasingly
transnational nature of crime. In addition to pursuing this issue
vigorously in our treaty negotiations, U.S. diplomats and U.S. law
enforcement officials, with the active personal leadership of Attorney
General Reno, have made eliminating restrictions on the extradition of
nationals a high priority in our bilateral dialogues with other
countries. These efforts have already had notable successes, beginning
to achieve what we hope will be an overall reversal of a well-entrenched
and long-standing tradition in many countries, often enshrined in
constitutions and national law.

Recent U.S. treaties with countries in South America, such as Bolivia,
Argentina and Paraguay, for example, restrict or eliminate obstacles to
the extradition of nationals. We have also had some success in
persuading states to rethink their policies on extradition of nationals
without revision of the treaty language. Largely as a result of our
efforts, the Dominican Republic repealed its law prohibiting the
extradition of nationals, leading to the extradition to the United
States of a number of Dominican nationals on murder and narcotics
charges. Mexico has exercised discretion under its law to extradite some
Mexican nationals, and we are encouraging the Mexican Government to
extradite more in the future. Colombia has also begun to exercise
discretion under its domestic law to extradite nationals.

A number of the U.S. Government's recent treaty relationships outside
Latin America also show the influence of this line of thinking. Our new
treaties with Antigua and Barbuda, Barbados, Grenada, India, the
Philippines, Sri Lanka, St. Kitts and Nevis, St. Lucia, St. Vincent and
the Grenadines, Trinidad and Tobago and Zimbabwe explicitly prohibit
denial of extradition on nationality grounds. Treaties with Australia,
Malaysia, Hong Kong, and South Korea, like treaties with Japan and
Thailand, leave the requested state with discretion whether to grant or
deny extradition on nationality grounds, but in each instance, the
treaty partner has indicated that it will grant such extradition where
possible. Israel, which for over twenty years had an absolute statutory
ban on extradition of nationals despite language in the treaty
contemplating the extradition of nationals, changed its domestic law in
1999 to permit the extradition of nationals for trials outside of
Israel.

We have made fewer advances on this issue in Europe, but some progress
has been made. Our extradition treaties with Ireland, Italy, and the
Netherlands permit the extradition of nationals in some circumstances,
and our recent treaty with Switzerland contemplates extradition of
nationals whenever the requested state is unable to prosecute in lieu of
extradition. However, most recent treaties with European countries such
as Austria, Cyprus, France, and Luxembourg permit but do not require
extradition of nationals, and those countries currently have no
discretion under their internal law to extradite their nationals. These
new treaties do recognize that if either treaty partner denies
extradition solely on nationality grounds, it is obligated to submit the
case to its competent authorities for purposes of prosecution under its
domestic laws if requested.

\-- **Death Penalty Assurances**

Some of our treaties provide that if the offense for which surrender is
sought is punishable by death under the laws in the country requesting
extradition but not in the country holding the fugitive, extradition may
be refused unless the requesting country provides assurances that the
death penalty will not be imposed or, if imposed, will not be carried
out.[^9] Sometimes these provisions are included in the treaty at the
insistence of our treaty partner, because many countries in Europe and
elsewhere that oppose the death penalty as a fundamental human rights
issue, and have abolished the death penalty domestically, routinely
refuse to extradite fugitives to countries that impose the death
penalty, absent such assurances that the death penalty will not be
carried out. Sometimes these provisions are included in the treaties at
the United States' request, in order to retain sufficient flexibility to
ensure that we are not obliged to surrender persons for execution for
relatively less serious crimes.

\-- **Statutes of Limitations**

Many of our treaties also bar extradition if the relevant statute of
limitations of the Requesting State, the Requested State, or both, would
bar prosecution. Absent a treaty provision, the United States does not
have a general policy of refusing extradition if the crime at issue
could not be prosecuted in U.S. courts based on statutes of limitation.
However, some foreign governments have constitutional or national laws
that limit their authority to extradite if the local statute of
limitations that would apply to such an offense if committed in that
country has expired.

**Other Reasons that Extradition is Denied**

\-- **List v. Dual Criminality Treaties**.

Extradition treaties are designed to engage the complex and expensive
international process only with respect to serious offenses. In older
U.S. treaties that were negotiated before the late 1970's, this was
accomplished by agreeing to a list of offenses that would be covered.
For countries still covered by such "list" treaties, a request for
extradition for a crime not included would be rejected. In newer
treaties concluded in the last 20-30 years, this list approach has been
replaced by the concept of "dual criminality," usually providing that
offenses covered by the treaty include all those made punishable under
the laws of both Parties by imprisonment or other form of detention for
more than one year, or by a more severe penalty (such as capital
punishment). Such a formulation obviates the need to renegotiate the
treaty to provide coverage for new offenses, strikingly exemplified by
the currently evolving area of cyber-crime. Indeed, to avoid having the
dual criminality analysis applied too narrowly, most treaties provide
further guidance, including that an offense is extraditable whether or
not the laws in the two countries place the offense within the same
category or describe it by the same terminology. A major goal in our
current ambitious treaty negotiating program is to negotiate new, modern
treaties that eliminate the "list" approach in favor of dual criminality
treaties.

\-- **Sufficiency of Evidence**.

Extradition treaties, as well as relevant domestic law, require that a
certain quality and character of evidence be presented before
extradition will be ordered for persons not yet convicted. In
extradition proceedings in the United States, sufficient evidence must
be presented to satisfy a court that there is "probable cause" to
believe that the crime for which extradition is requested has been
committed, and that the fugitive committed it. The laws of several of
our treaty partners have similar thresholds analogous to "probable
cause"; a few require what amounts to a higher "prima facie" standard of
enough evidence to sustain a judgment of conviction based on the
evidence in the extradition request. Some of our other treaty partners
do not require evidence sufficient to establish what we would deem
probable cause in order to extradite fugitives to the United States.

\-- **Additional Exceptions to the Obligation to Extradite**.

Even where a fugitive might otherwise be extraditable, our treaties and
some foreign laws have other exceptions to the obligations to extradite,
which sometimes make extradition impossible in particular circumstances.

\-- An almost universal treaty exception, known in international
extradition law as the "[non bis in idem]{.underline}" doctrine, is
similar to the **double jeopardy** doctrine under U.S. domestic law, and
provides that extradition will be denied when the person has already
been either acquitted or convicted for the same offense in the country
from which extradition is requested, or, in some instances, in a third
country.

\-- A similarly widely adopted exception is that extradition is not
required where the crime at issue is a **"political offense"** (a term
which can cover treason, sedition or other crime against the state
without the elements of any ordinary crime, or which under U.S. law can
cover ordinary crimes committed incidental to or in furtherance of a
violent political uprising such as a war, revolution or rebellion,
especially when such crimes do not target civilian victims) or a
**"military offense"** (a crime subject to military law that is not
criminalized under normal penal law).

\-- Other limitations on the obligation to extradite, which vary to some
extent from treaty to treaty, would relate to requests for extradition
for **extraterritorial offenses** where the two countries' laws differ
on the reach of jurisdiction over such crimes. In such cases, the United
States seeks the greatest possible flexibility in our treaties to permit
extradition for offenses that have taken place in whole or in part
outside the territory of the requesting party.

\-- Finally, our treaties typically provide that extradition may be
denied if the request is found to be **politically motivated.** Some of
our treaties provide that extradition may be denied if the request was
made for the primary purpose of prosecuting or punishing the person
sought on account of race, religion, nationality or political opinion.

**Additional Factors that Sometimes Impede Extradition**

There are several other circumstances that can preclude the return of
fugitives to the United States for trial, even where there is an
extradition treaty in force and nationality and other barriers discussed
above do not constitute a legal bar to extradition.

\-- Sometimes a country may in effect become a safe haven for one or
more fugitives through no fault of the government of the country in
question. Even if an extradition treaty is in force, a vast land mass,
difficult terrain and inadequate police force or resources may make it
possible for fugitives to hide.

\-- In some cases, a country may have difficulty meeting its obligations
under a new extradition treaty until it is able to ensure that its legal
and judicial infrastructure is organized and trained to respond to
foreign requests for extradition. The United States frequently works
closely with its counterpart in addressing such issues. This process
begins during the actual negotiation of the treaty and consultations are
commonly held on a periodic basis after the treaty enters into force. In
some cases, U.S. foreign assistance programs provide guidance and
training to foreign police and prosecutors in this area, thereby helping
to develop more effective institutions and practices.

\-- Finally, in some notable cases foreign courts might call into
question the validity of treaties entered into by their governments,
including extradition treaties, thereby impeding the ability of their
governments to rely upon those treaties in cases before their domestic
courts. For example, the Supreme Court of Colombia ruled in 1986 \--
four years after the 1979 U.S.-Colombia Extradition Treaty had entered
into force \-- that the relevant Colombian legislation was invalid.[^10]
Even though it has been unable to rely on the provisions of the treaty
to arrest and extradite fugitives at the request of the United States,
the Government of Colombia has used its domestic extradition law to
extradite persons to the United States.^1^[^11] Similarly, a Jordanian
court has ruled that the manner in which the 1995 U.S.-Jordan
extradition treaty was approved domestically in Jordan did not meet the
requirements of Jordanian domestic law, and this matter is under review.

## Cases Where There is no Treaty in Force

There are also times when the United States does not have extradition
treaty relationships with countries where fugitives might be located.
Sometimes not pursuing such relationships is a conscious choice, even
where there is a possible law enforcement need. This is because
extradition treaties are reciprocal and in addition to obtaining the
return of fugitives to the United States, we must be prepared to
surrender fugitives, including U.S. nationals, to face the legal,
judicial and penal systems of our treaty partners. Where we are not
prepared to do so, we do not pursue such a treaty even though that may
mean foregoing the possibility of obtaining the extradition of fugitives
from that country. In other instances, of course, the absence of a
treaty can simply mean that up to that point the need for a treaty with
a particular country has not been a sufficiently high priority.

Transfer of Persons for Law Enforcement Purposes Outside the Context of
Extradition Treaties

Finally, we note that extradition pursuant to a treaty, while being the
most typical way a fugitive is returned for trial or punishment, is not
the exclusive means persons are returned across national borders. If the
person sought is not a national of the requested country, that country
may be able to expel or deport persons to the United States under its
immigration law. Similarly, non U.S.-nationals located in the United
States and sought by other countries might in some circumstances be
removable from U.S. territory under our immigration laws. In some
countries, unlike the United States, persons may be expelled by the
executive authority of the foreign government without resort to formal
proceedings. Also, in a number of countries, unlike the general rule in
United States, extradition proceedings may be initiated under general
provisions of domestic law even where there is no treaty relationship in
place. Finally, of course, a fugitive may voluntarily choose for his or
her own reasons to return to a country for trial or punishment. These
possibilities are less certain and predictable than extradition pursuant
to treaty, and are discretionary as opposed to being derived from a
treaty commitment under international law.

**Response to Section 211 (b)(3) of Public Law 106-113:**

"Identify those bilateral extradition treaties to which the United
States is a party which do not require the extradition of nationals, and
the reason such treaties contain such a provision"

The U.S. as a matter of policy draws no distinction between nationals
and non-nationals in extradition. Our numerous extradition treaties
reflect this policy to the extent possible in four general approaches.
The following discussion incorporates the results of the U.S. Department
of Justice's recent survey of the nationality provisions of our
extradition treaties in force and the policies of our treaty partners as
of May 15, 2000, and is subject to change as new treaties enter into
force for the United States or the policies of our treaty partners
change.

First, our treaties with a large number of countries are silent on the
issue of extradition of nationals.^1^[^12] These treaties require the
extradition of all persons without regard to nationality if the
requirements of the treaty are otherwise met.

A number of the countries in the world do not allow their nationals to
be extradited as a result of their constitutions, domestic law or long
standing policy, and these countries were not willing to conclude
treaties which might appear to require extradition of nationals. U.S.
treaties with many such countries state that neither state is bound or
obligated to extradite nationals.^1^[^13] The U.S. practice under these
treaties is to grant extradition of our citizens even if the other
nation did not extradite its citizens to us in return. The Supreme Court
ruled in [Valentine v. United States ex rel Neidecker]{.underline}, 299
U.S. 5 (1936), that this "not bound" language failed to provide
sufficient legal basis for the U.S. to extradite U.S. citizens, so
treaties negotiated after 1936 with States that do not extradite
nationals often provide that neither party is bound to extradite
nationals but the requested state (or the executive authority of the
requested state) may do so if, in its discretion, it deems it
appropriate.^1^[^14] This language permits the U.S. to continue the
pre-[Valentine]{.underline} policy of extraditing our citizens even if
the treaty partner is unwilling or legally unable to reciprocate.

In a third group of treaties, the extradition of nationals is
discretionary under the terms of the relevant treaty, but in practice
the foreign country involved can and does surrender its
nationals.^1^[^15]

Finally, in recent years many of our treaties have included language
that explicitly bars each party from denying extradition on nationality
grounds in some or all circumstances.^1^[^16]

**Response to Section 211 (b)(4) of Public Law 106-113:**

"Discuss appropriate legislative and diplomatic solutions to existing
gaps in United States extradition treaties and practice"

**General Observations**

The problems discussed above, particularly relating to the extradition
of nationals, are not issues that can be resolved as a matter of U.S.
domestic law. Both the State and Justice Departments have made
persuading other countries to extradite their nationals a high priority.
This issue is raised consistently and firmly in our international
dialogues and our bilateral agendas. In some cases these efforts have
already been very productive. For example, with respect to South
American countries such as Argentina and Paraguay we have eliminated
nationality as a bar to extradition in recently negotiated treaties. In
European countries such as Austria, Cyprus and Luxembourg, while the
treaties do not require extradition of nationals, they do require the
countries to submit for prosecution at our request any case denied
solely on the basis of nationality. With other countries, such as
Mexico, Israel and the Dominican Republic, we have not changed the terms
of the existing treaties, but the countries are taking additional and
more vigorous and helpful steps under their domestic laws to extradite
nationals, at least under some circumstances. Our international efforts
are ongoing, and over time we believe we will have additional successes,
although in many countries resistance to the extradition of nationals
remains an engrained national policy that may not change in the
foreseeable future.

More generally, we are working with other countries to enhance the
effectiveness of international extradition, through strengthened liaison
and communication with the foreign government and by gaining a better
knowledge of each other's legal systems as a result of working together
on individual cases. Where necessary, we are developing protocols to
existing treaties to enhance the treaty basis for international
extradition. For example, a recent protocol to our extradition treaty
with Spain brought into force in 1999 eliminates statutes of limitations
and amnesties in the Requested State as bases for denying extradition.
In some cases, such as with Sri Lanka, Paraguay and South Africa, we
have developed entirely new treaties to improve and update older treaty
relationships. And we have in recent years brought into force first-ever
treaties with countries with which we did not previously have
extradition relationships, such as the Philippines, the Republic of
Korea, and Zimbabwe.

As to countries where we are not yet prepared to make a general
commitment to extradite, we are working on developing other types of law
enforcement cooperation. With respect to Russia, for instance, this
process began with informal arrangements between our law enforcement
agencies. It progressed to negotiation of a Mutual Legal Assistance
Agreement and most recently the negotiation of a Mutual Legal Assistance
Treaty, which was transmitted to the Senate on February 4, 2000, for
advice and consent to ratification. By establishing such law enforcement
relationships we are then able to exchange evidence that may assist in
tracking fugitives to a country from which extradition is possible, and
to obtain or provide evidence necessary for effective prosecutions.

In this respect, we do not believe that new sanctions provisions related
to foreign government performance under extradition treaties are
necessary or desirable as a matter of the sound management of U.S.
foreign assistance or international diplomacy. Extradition is one of
many issues in our bilateral relations with countries that receive U.S.
assistance. Countries which are working with us cooperatively in many
ways ([e.g.]{.underline}, security, trade, migration, other diplomatic
cooperation) should not have assistance terminated as a matter of law
based on this single issue without consideration of other factors. Even
in the context of law enforcement cooperation, there are countries that
are cooperating with us in important ways outside of the extradition
area and should not be sanctioned based on problems with a single aspect
of law enforcement cooperation. For example, countries may be providing
us evidence to support other prosecutions or helping us with
investigative leads, working with us on counterterrorism or
counternarcotics matters, or prosecuting domestically the same persons
we are seeking for extradition.

Moreover, sanctions schemes in this context cannot be administered with
set legislative formulas given the nature of international extradition.
The United States has over 110 diverse individual extradition treaty
relationships in force. Each of these relationships presents unique
issues and histories, as well as different considerations arising from
the way in which the treaties were negotiated and implemented. Some of
these treaties are dormant and have not been invoked in many years.
Implementation of others is an evolving matter, since many countries are
now reconsidering their extradition laws and practices. In some cases,
the governments of the countries are operating under constitutions or
national laws they themselves would like to change. And as with the
United States, extradition from many countries involves decisions by
independent judges interpreting the applicable treaty and domestic law,
which can sometimes result in the denial of U.S. requests.

In sum, the implementation of extradition treaties is a dynamic and
sometimes difficult process. With diverse legal systems, policies and
practices, it is prone to successes and failures. We are working hard to
address the problem areas, including working with the Senate to update
many of our existing treaties as part of our ongoing negotiating
program.

**Legislative Efforts**

U.S. domestic extradition law is generally quite satisfactory \-- most
of the U.S. Government's efforts are focused instead on improving our
extradition practice by updating our extradition treaties (and sometimes
creating new treaty relationships) and engaging with our foreign
counterparts regarding improved implementation of their domestic laws
and policies. Legislative action is generally not required, except to
the extent that an updated or new treaty needs to be approved by the
Senate. The Departments of Justice and State thus see no need for major
overhauls of the U.S. extradition laws.

There are, however, several amendments to Title 18 of the U.S. Code that
the Administration has suggested in crime bills in the past several
years relating to international extradition. In 1998, the Administration
officially submitted to the Congress the International Crime Control
Act, which included several provisions particularly relevant to this
discussion. We remain interested in pursuing these proposals. Each would
grant us flexibility to extradite fugitives more freely and thereby
increase the likelihood that we would receive similar favorable
treatment from foreign countries.

\-- The first of these would permit the United States to extradite
fugitives for offenses not contained in our old list treaties. As noted
above, such lists can become rapidly outdated, particularly when major
technological breakthroughs introduce an entirely new category of
crimes, such as cyber-crime. Current U.S. law, however, in most
instances provides authority to extradite only for offenses covered by
extradition treaties. This gap could be filled by legislation
authorizing extradition in instances where a foreign country with which
we have an extradition treaty limited to a list of offenses requests
extradition of a fugitive for a serious offense not included in the
list. Such discretion would be carefully limited by requiring a
preliminary review with certification by the Attorney General that the
offense is a serious offense (as defined in the statute) and that
submission of the extradition request would be important to the law
enforcement interests of the United States or otherwise in the interests
of justice, and by the Secretary of State that it would be consistent
with the foreign policy interests of the United States. The decision to
extradite would require the same judicial decision as to extraditability
and decision by the Secretary of State to sign the surrender warrant as
for offenses listed in the treaty. Under such a law, we would anticipate
extraditing fugitives for crimes not covered under our list treaties
only if we were confident that U.S. requests to that treaty partner for
extradition relating to the same offenses would be granted as a matter
of reciprocity.

\-- The second provision would create authority to extradite a fugitive
for a serious offense to a country with which the United States has no
extradition treaty. (There is existing authority to extradite from the
U.S. in the absence of a treaty (18 USC 3181(b)), but only in very
limited circumstances.) In addition to the usual procedures set forth
for extradition in the existing statute, the proposed law would also
require substantial policy-level review by the executive branch before
any action would be taken. The Attorney General would need to certify
that the offense is serious (as defined by the statute) and submission
of the request is important to the law enforcement interests of the
United States or otherwise in the interests of justice. The Secretary of
State would need to certify that, based on information then known,
submission of the request would be consistent with the foreign policy
interests of the United States; and that the facts and circumstances of
the request, including humanitarian considerations, do not appear likely
to present a significant impediment to the ultimate surrender of the
person if found extraditable. Moreover, the Secretary would need to find
that the country submitting the request does not appear to be doing so
in order to try or punish the person sought based primarily on the
person's race, religion, nationality, or political opinions.^1^[^17]

Such authority would not be exercised frequently but could be important
in specific cases. There are over 60 countries with which we have no
extradition treaty relationship at this time. For many of these
countries, the absence of a treaty is due only to the fact that
negotiating and ratifying new treaties is both time consuming and
complex, and the United States cannot always predict when law
enforcement needs will call for extradition with a particular country.
This inability to surrender even escaped convicts to other countries
means that criminals can find safe haven in the U.S. The ability to
extradite absent a treaty would also enhance our ability to secure
extradition without a treaty from other countries which may have the
authority to do so but would be willing to act only if there exists at
least the possibility of reciprocity.[^18]^8^

**Response to Section 211 (b)(5) of Public Law 106-113:**

"Discuss current priorities of the United States for negotiation of new
extradition treaties and renegotiation of existing treaties, including
resource factors relevant to such negotiations"

The United States currently has about 110 bilateral extradition treaty
relationships in force. As noted above, some of them are quite old and
need updating, [e.g.]{.underline}, to ensure that the broadest possible
number of crimes are covered and that unnecessary restrictions on
extradition are removed. In deciding our negotiating priorities, we
consider factors such as problems with the existing treaties in
practice; the number of persons in the country likely to be sought for
trial or punishment under the treaty and the importance and gravity of
the crimes involved; and the willingness of the other country to
negotiate in general and in particular to agree to key provisions,
including extradition of nationals. Representatives of the State and
Justice Departments meet periodically to establish and review
priorities.

Within the last eighteen months, the United States has signed new
extradition treaties or protocols to existing treaties with Belize,
Paraguay, South Africa, and Sri Lanka. We are in extradition treaty or
protocol negotiations with Canada, the Czech Republic, Israel,
Lithuania, and Peru, and expect a variety of other negotiations to
commence in the near future.

Another relevant factor in determining which treaties to negotiate is
the priority attached to other law enforcement demands. Extradition
treaties are negotiated by attorneys at the State and Justice
Departments who specialize in international criminal law and the
mechanisms for law enforcement cooperation among governments. The same
attorneys who negotiate these treaties also negotiate the vast majority
of the U.S. Government's law enforcement treaties, including mutual
legal assistance treaties, multilateral conventions, and other
international agreements. They are also responsible for implementing the
extradition treaties, including developing outgoing extradition treaty
requests and reviewing incoming requests, and handling problems and
disputes that arise in connection with these treaties. In addition, they
address policy and litigation issues that arise in connection with
international legal cooperation. In the Department of State, these
attorneys also provide legal support to Department efforts in the areas
of intelligence and combating drug trafficking, money-laundering, and
terrorism. As in any area of the Departments of Justice and State, there
are limited resources and priorities have to be set regarding which
treaties to negotiate.

Attachment -- Excerpt from Public Law 106-113

**Section 2ll. Report on International Extradition**

\(a\) **[Report to Congress]{.underline}**. Not later than l80 days
after the date of enactment of this Act, the Secretary of State shall
review extradition treaties and other agreements containing extradition
obligations to which the United States is a party (only with regard to
those treaties where the United States has diplomatic relations with the
treaty partner) and submit a report to the appropriate congressional
committees regarding United States extradition policy and practice.

\(b\) **[Contents of Report]{.underline}**. The report under subsection
(a) shall:

\(l\) discuss the factors that contribute to failure of foreign nations
to comply fully with their obligations under bilateral extradition
treaties with the United States;

\(2\) discuss the factors that contribute to nations becoming "safe
havens" for individuals fleeing the United States justice system;

\(3\) identify those bilateral extradition treaties to the United States
is a party which do not require the extradition of nationals, and the
reason such treaties contain such a provision;

\(4\) discuss appropriate legislative and diplomatic solutions to
existing gaps in United States extradition and practices; and

\(5\) discuss current priorities of the United States for negotiation of
new extradition treaties and renegotiation of existing treaties,
including resource factors relevant to such negotiations.

[^1]: Domestic law relevant to extradition is set forth in 18 U.S.C. §§
    3181-3196. The two exceptions to the requirement for a treaty are
    set forth in 18 U.S.C. § 3181(b), providing for extradition of
    non-Americans to stand trial for violent crimes committed against
    Americans abroad, and 18 U.S.C. § 3181 Note, providing for
    extradition to the International Criminal Tribunals established by
    the United Nations Security Council with respect to Rwanda and the
    former Yugoslavia.

[^2]: Some of these treaty relationships result from decolonization,
    where new nations ([e.g.]{.underline}, in the Caribbean, Africa and
    South Asia) accepted the obligations of existing extradition
    treaties as successor states upon independence. About 25 of our
    treaty relationships are with former British dependencies which
    assumed the UK's treaty obligations upon independence.

[^3]: The new treaties are with Antigua and Barbuda, Argentina, Austria,
    Barbados, Cyprus, Dominica, France, Grenada, India, Luxembourg,
    Poland, St. Kitts and Nevis, St. Lucia, St. Vincent and the
    Grenadines, Trinidad and Tobago, and Zimbabwe. The two protocols
    were with Mexico and Spain. The sixteen complete treaties include
    key provisions we seek in our modern treaties that are discussed
    later in this Report, such as extradition based on dual criminality
    as opposed to a list of offenses. Of the sixteen complete treaties,
    fifteen replaced pre-existing treaty relationships. The treaty with
    Zimbabwe established an extradition treaty relationship with that
    country for the first time.

[^4]: Our extradition treaties typically require foreign governments to
    represent the interests of the United States in connection with U.S.
    extradition requests.

[^5]: U.S. courts have followed a "rule of non-inquiry" under which
    issues concerning whether the defendant is likely to be treated
    fairly and humanely if extradited are not considered as part of the
    finding of extraditability but are reserved to the Secretary of
    State. For instance, the obligation of the United States under the
    Torture Convention not to extradite a person to a country where it
    is more likely than not that the person will be tortured is
    implemented through the Secretary of State's review.
    [See]{.underline} 22 C.F.R. Part 95.

[^6]: In the United States, we note while some extradition cases proceed
    fairly swiftly, extradition proceedings in U.S. courts, including
    the initial extradition hearing, petitions for a writ of habeas
    corpus, and appeals, can also last for years before the matter is
    referred to the Secretary of State for decision.

[^7]: At the time of the high-profile Samuel Sheinbein case, in which
    Maryland authorities sought a fugitive for trial in Montgomery
    County on murder charges, nationality was an absolute bar to
    extradition under Israeli law.

[^8]: ^8^ Sometimes the foreign government's prosecutorial efforts are
    not as vigorous as we would like, for reasons including the
    following: it is difficult and expensive to bring witnesses to the
    foreign courts to testify; evidentiary and procedural differences in
    our systems make such prosecutions difficult; foreign prosecutions
    are far less desirable from the perspective of U.S. victims and the
    communities where the crimes took place; and the punishment imposed
    is substantially less than what would have been imposed in the
    United States.

[^9]: Less frequently, countries seek assurances on the particular
    length of sentence a fugitive will receive (e.g., no "life
    sentences"). The United States generally resists including
    provisions along these lines in our extradition treaties (or
    granting such assurances in practice), although we note there is
    such a provision in our 1922 treaty with Venezuela permitting a
    Party to deny extradition if it seeks but does not obtain such
    assurances.

[^10]: The U.S. Government has never considered that the Colombian
    domestic court\'s decision had the effect of terminating the treaty
    under international law. The United States considers the treaty to
    be in force, and to remain legally binding on both parties. In a
    recent case, a U.S. district court accepted the State Department\'s
    declaration that the treaty is in force, and could serve as a legal
    basis to extradite persons to Colombia.

[^11]: ^11^ The Government of Colombia, unlike the United States
    Government, can extradite fugitives internationally without relying
    on a treaty before its domestic courts.

[^12]: ^212^ These include our treaties with Belize, Burma, Canada,
    Dominica, Ecuador, Fiji, Gambia, Ghana, Guyana, Kenya, Kiribati,
    Lesotho, Malawi, Malta, Mauritius, Nauru, Nigeria, Pakistan, Papua
    New Guinea, Seychelles, Sierra Leone, Singapore, Solomon Islands,
    South Africa, Sri Lanka, Swaziland, Tanzania, Tonga, Tuvalu, United
    Kingdom, and Zambia. The lists of countries in footnotes 12-16 of
    this report were prepared by the Department of Justice based on its
    research on the relevant treaties and the nationality laws and
    policies of the countries mentioned therein.

[^13]: ^313^ These include treaties with Albania, Bosnia, Bulgaria,
    Chile, Congo (Brazzaville), Croatia, Cuba, Czech Republic, Dominican
    Republic, Egypt, El Salvador, Estonia, Guatemala, Haiti, Honduras,
    Iceland, Iraq, Latvia, Lithuania, Luxembourg, Macedonia, Monaco,
    Panama, Peru, Portugal, Romania, San Marino, Serbia-Montenegro,
    Slovak Republic, Slovenia, Suriname, and Venezuela. Treaties with
    three countries (Liberia, Liechtenstein, and Greece) say neither
    state is bound unless the fugitive was naturalized after the crime
    occurred.

[^14]: ^414^ These include treaties with Argentina, Austria, Belgium,
    Cyprus, Poland, Finland, Paraguay, Denmark, Germany, Mexico, Spain,
    Sweden, Turkey, Colombia, Norway, France, Hungary, and Greece. With
    respect to treaties with a discretionary formulation, we note that
    Congress amended U.S. domestic extradition law in 1990 to provide
    that a U.S. national may be extradited even "\[i\]f the applicable
    treaty or convention does not obligate the United States to
    extradite its citizens to a foreign country," as long as the other
    obligations of the treaty are met. 18 U.S.C. § 3196.

[^15]: ^515^ These include treaties with Australia, Jamaica, Japan,
    Malaysia, New Zealand, South Korea, and Thailand.

[^16]: ^616^ These include treaties with Antigua and Barbuda, Bahamas,
    Barbados, Bolivia, Grenada, Hong Kong, India, Ireland, Israel,
    Italy, Jordan, the Netherlands, the Philippines, St. Kitts and
    Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and
    Tobago, and Uruguay. The new treaty with Argentina, signed in June
    1997 and pending an exchange of instruments of ratification before
    it enters into force, contains such a provision, as does the new
    treaty with Belize, which was signed on April 4, 2000, and will be
    transmitted to the Senate in the near future for advice and consent
    to ratification.

[^17]: ^717^ Because there would be no applicable treaty provisions, the
    statute would also set forth such fundamental requirements as the
    need for a finding by the U.S. judicial officer of probable cause to
    believe that the person is the person sought, that he or she
    committed the offense or was duly convicted in the requesting state;
    and that the conduct would be a serious offense (as defined in the
    statute) punishable by imprisonment for more than ten years under
    laws in the U.S.. It would also provide certain defenses to
    extradition. It would also ensure that the role of the Secretary of
    State in deciding whether or not a person should be extradited is
    preserved. The provision would further require that the Secretary
    demand in every case that the person not be tried or punished for an
    offense other than that for which extradited, and that the person
    not be subject to capital punishment unless the offense would be so
    punishable under the applicable laws in the U.S.

[^18]: ^18^ The Administration has also considered and may propose
    various amendments to Title 18 of the United States Code on relevant
    or related issues. These include authority, often found in
    individual modern extradition treaties, to (i) temporarily transfer
    persons in custody in the U.S. on U.S. charges, who had also been
    found extraditable to another country, to another country for
    prosecution (with return to the U.S. before serving any sentence in
    the other country), (ii) hold persons temporarily transferred here
    for such purposes and to return the transferred person following
    completion of judicial proceedings, and (iii) allow transit through
    the U.S. of fugitives wanted for prosecution in foreign countries
    and provide authority to hold them in custody during the transit
    period. Another related provision that may be proposed would
    authorize the Attorney General to help defray unusual expenses
    incurred by state and local jurisdictions in international
    extradition cases.