Order Code RL32096
CRS Report for Congress
Received through the CRS Web
Extradition Between the
United States and Great Britain:
The 2003 Treaty
Updated May 6, 2004
Charles Doyle
Senior Specialist
American Law Division
Congressional Research Service ˜ The Library of Congress

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Extradition Between the United States and Great
Britain: The 2003 Treaty
Summary
Federal court denial of British extradition requests in the cases of four fugitives
from Northern Ireland led to the Supplementary Extradition Treaty. The Treaty
proved controversial and before the Senate would give its consent it insisted upon
modifications, some quite unusual. Those modifications have been eliminated in a
newly negotiated treaty which awaits Senate action and which incorporates features
often more characteristic of contemporary extradition treaties with other countries.
There has been criticism of the new Treaty’s
-
exemptions to the political offense bar to extradition;
-
elimination of judicial inquiry into politically motivated extradition
request;
-
treatment of probable cause;
-
clause relating to extradition for crimes committed overseas;
-
dropping the statute of limitations defense;
-
discretionary authority for provisional arrest and detention;
-
language relating to the seizure of assets;
-
exceptions to the rule of speciality (permitting prosecution for crimes other
than those for which extradition was granted); and
- retroactive
application.
The Treaty also contains articles relating to capital punishment, waiver of
extradition, extradition involving third countries, double jeopardy, the elimination
of nationality as a bar to extradition, translations, and deferred prosecution.
This report is available in an abridged form as CRS Report RS21633,
Extradition Between the United States and Great Britain: A Sketch of the 2003
Treaty; also see CRS Report 98-958, Extradition To and From the United States:
Overview of the Law and Recent Treaties.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Supplementary Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Since the Supplementary Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Objections to 2003 Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Exemptions to the Political Offense Exception . . . . . . . . . . . . . . . . . . 10
The Courts, Improper Motives, and Probable Cause . . . . . . . . . . . . . . 12
Extraterritorial Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Provisional arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Evidence and Forfeitable Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Rule of Specialty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Other Treaty Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Extradition to Third Countries or Entities . . . . . . . . . . . . . . . . . . . . . . 21
Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Nationality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Translations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Deferred Prosecution or Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Transit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Capital Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Extradition Between the United States and
Great Britain: The 2003 Treaty
Introduction
“One of the most divisive and contentious issues the committee has faced. . . .”
So the Senate Foreign Relations Committee described its consideration and
subsequent approval of the 1985 Supplementary Treaty to the 1972 extradition treaty
between Great Britain and the United States, S.Ex.Rep.No. 99-17, at 6 (1986).1 The
Supplementary Treaty limits the political offense bar to extradition; it authorizes
judicial inquiry into the motives behind an extradition request; and it allows an
individual sought by the British to be heard by the court on the issues of probable
cause and dual criminality. On March 31, 2003, Attorney General John Ashcroft and
United Kingdom Home Secretary David Blunkett announced the signing of a new
extradition treaty that reopens the matter.2 The 2003 Treaty awaits the Senate’s
advice and consent, S. Treaty Doc. 108-23 (2004). The 2003 Treaty further narrows
the political exception bar and eliminates the Supplementary Treaty’s explicit
motivation, probable cause, and dual criminal inquiry features. It has already been
attacked by a group of Irish-Americans.3
Background
Extradition is the process by which one country formally surrenders a person to
another country for criminal prosecution or punishment.4 Ordinarily, extradition is
governed by a treaty which operates in the nature of a contract and by implementing
statutory provisions.5 The United States has extradition treaties in force with most
1 Supplementary Treaty Between the United States of America and the United Kingdom of
Great Britain and Northern Ireland, T.I.A.S. 12050, 1556 U.N.T.S. 369 (eff. Dec. 23, 1986)
(Supplementary Treaty).
2 Department of Justice Press Release dated Mar. 31, 2003, available on May 6, 2004 at
[http://www.usdoj.gov/opa/pr/2003/March/03_ag_196.htm].
3 Boyle, A Threat to Irish-Americans: The New U.S./U.K. Extradition Treaty, available at
[http://www.irishfreedomcommittee.net].
4 See generally, Extradition To and From the United States: Overview of the Law and
Recent Treaties, CRS Rep.No. 98-958 (2003); Abbell, EXTRADITION TO AND FROM THE
UNITED STATES (2002)(Abbell); Bassiouni, INTERNATIONAL EXTRADITION: UNITED STATES
LAW AND PRACTICE (4th ed. 2002)(Bassiouni); 1 RESTATEMENT (THIRD) OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES, Subch.7B (1986 & 2003 Supp.)(RESTATEMENT).
Interstate rendition, the surrender of a person by one of the states of the United States to
another and sometimes also referred to as extradition, is beyond the scope of this report.
5 In the case of the United States, 18 U.S.C. 3181-3196.

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of the countries of the world and under most circumstances will extradite an
individual to another country only pursuant to a treaty of extradition.6
Supplementary Treaty.
The 2003 Treaty is the latest in a long line of extradition pacts with Great
Britain.7 The difficulties that led to the Supplementary Treaty arose from judicial
application of the “political offense exception” found in the 1977 Treaty.8 The
federal courts in this country had held that the political offense exception found in
most of our extradition treaties precluded extradition on the basis of criminal charges
growing out of conduct “committed in the course of and incidental to a violent
political disturbance, such as a war, revolution or rebellion.”9 Shortly after the 1977
Treaty became effective, federal courts denied extradition requests on the basis of the
political offense exception in four instances growing out of the unrest in Northern
Ireland.10 The two countries responded by negotiating a Supplementary Treaty,
S.Treaty Doc. 99-8 (1985).11 As transmitted to the Senate, the Supplementary Treaty
6 18 U.S.C. 3181, 3184. A somewhat dated list appears following in 18 U.S.C. 3181; see
also, United States Department of State: Treaties in Force – January 1, 2003 (2003). In the
absence of a treaty, the United States may only honor extradition requests under two
circumstances: (1) when foreign nationals accused or convicted of committing crimes of
violence against Americans overseas are sought, 18 U.S.C. 3181(b), or (2) in response to
extradition requests from the international tribunals for Yugoslavia and Rwanda, P.L. 104-
132, §443, 110 Stat. 1280 (1996), 18 U.S.C. 3181 note.
7 In fact, the extradition provision of Jay’s Treaty with Great Britain was our first
extradition treaty, 8 Stat. 116, 129 (1794).
8 “Extradition shall not be granted if . . . (c)(i) the offense for which extradition is requested
is regarded by the requested Party as one of a political character; or (ii) the person sought
proves that the request for his extradition has in fact been made with a view to try or punish
him for an offense of a political character,” Extradition Treaty Between the Government of
the United States of America and the Government of the United Kingdom of Great Britain
and Norther Ireland, Art.V(1), 28 U.S.T. 227, 230 (1977) (1977 Treaty). The 1977 Treaty,
with the modifications found in the Supplementary Treaty, is still in effect.
9 Eain v. Wilkes, 641 F.2d 504, 518 (7th Cir. 1981); Escobedo v. United States, 623 F.2d
1098, 1104 (5th Cir.1980); Sindona v. Grant, 619 F.2d 167, 173 (2d Cir. 1980); cf., Ornelas
v. Ruiz, 161 U.S. 502, 511-12 (1896)(“Can it be said that the commissioner had no choice
on the evidence but to hold, in view of the character of the foray, the mode of attack, the
persons killed or captured, and the kind of property taken or destroyed, that this was a
movement in aid of a political revolt, an insurrection or a civil war, and that acts which
contained all the characteristics of crimes under the ordinary law were exempt from
extradition because of the political intentions of those who committed them? In our opinion
this inquiry must be answered in the negative”).
10 In re McMullen, Magistrate No. 3-78-1099 MG (N.D.Cal. May 11, 1979), printed in, 132
Cong.Rec. 16585 (1986); In re Mackin, 80 Cr.Misc. 1 (S.D.N.Y. Aug. 13, 1981), appeal
dism'd, pets. for mand. & hab.corp. den'd, 668 F.2d 122 (2d Cir. 1981); Quinn v. Robinson,
No. C-82-668 RDA (N.D.Cal. 1983), rev'd, 783 F.2d 776 (9th Cir. 1986); In re Doherty, 599
F.Supp. 270 (S.D.N.Y. 1984).
11 132 Cong.Rec. 16586 (1986)(remarks of Sen. Lugar)(“it was because of these cases that
on June 25, 1985, the United States and the United Kingdom signed the Supplementary
Extradition. Its purpose is to reverse the three cases where extradition was denied and put

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curtailed the political offense exception, and also eased the statute of limitations bar,
extended the permissible duration of provisional arrest pending the formal
submission of evidence sufficient to support an extradition request, and made its
changes retroactively applicable, S.Treaty Doc. 99-8 (1985).
Exemptions to the political offense exception were the most controversial
aspect of the treaty offered to the Senate. The Administration argued that the
political offense exception should not be available for crimes of violence committed
in a nation open to nonviolent resolution of political differences, and that contrary to
critics’ suggestions the treaty posed no threat to civil liberties.12 Critics, on the other
an end to this development in the law”); see generally, United States and United Kingdom
Supplementary Extradition Treaty: Hearings Before the Senate Comm. on Foreign
Relations, 99th Cong., 1st Sess. (1985)(Hearings); id. at 4 (testimony of Department of State
Legal Adviser Abraham D. Sofaer)(“. . .United States courts have refused to extradite to the
United Kingdom four members of the Provisional Irish Republican Army [PIRA] who are
accused, or convicted of violent terrorist crimes. In each case, extradition was denied
because the terrorist crimes were committed as part of a political struggle. These decisions
direct a blow to the rule of law. . .”); id. at 7-8 (testimony of Dep.Att'y Gen. D. Lowell
Jensen)(“In recent years, there have been four cases involving request by the United
Kingdom for the extradition of Irish Republican Army members charged or convicted of
terrorist crimes. . . . In each of the four cases described, the fugitive claimed that the
unsettled political situation in Northern Ireland constituted a war, revolution, or rebellion
and that his offenses qualified for treatment as political offenses. The U.S. courts have
accepted this argument in all but one case. . . . The British Government has concurred in our
view that it is unacceptable that a criminal may commit a heinous offense which shocks the
sensibilities of all decent people, flee the country which he has terrorized, and find safe
haven in another country by labeling his crime a political offense”).
12 E.g., Hearings at 3-5 (testimony of State Department Legal Adviser Abraham D. Sofaer)
(“The political offense doctrine is an exception to the general principle of extradition. This
exception arose in the 18th century, as revolutionaries struggled for freedom against
despotic regimes. When revolutionaries fled to the fledgling democracies of Western
Europe, those governments sheltered them from political persecution. They refused to
extradite fugitives whom requesting states sought to punish for engaging political activities.
. . . In recent years, the exception has resulted in refusals of U.S. courts to extradite persons
suspected or convicted of committing heinous crimes that are not, by their nature, political
acts . . . . This supplementary treaty . . . narrows the political offense exception as applied
to United Kingdom requests to pure political and nonviolent crimes. It reflects the basic
principle that terrorist violence should not be tolerated against stable democracies in which
the political process is available to redress legitimate grievances and in which the judicial
system provides fair treatment. Moreover, by using a bilateral treaty to implement this
principle, we would not alter our extradition laws across the board. Instead, we are abler
to decide whether to limit the exception on a nation-by-nation basis. . . .[T]he United
Kingdom is also an ideal nation with whom to begin this process from the moral and
political point of view. It is our longest and closest ally . . . [and] one of the most open
political systems in the world. . . .Some opponents have condemned this supplementary
treaty as an assault upon civil liberties. They claim it will destroy the political offense
exception, will facilitate repression of dissent, and will abolish judicial review of extradition
decisions. These criticisms are unfounded. The treaty does not eliminate the political
offense exception, but only removes from its scope certain specified violent crimes. . . .
Moreover, the exception will continue in full force with respect to all nations other than the
United Kingdom, and will never be revised with respect to repressive regimes”).

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hand, argued that the repudiated political offense exception reflected a long-held
reluctance to deny refuge to the opponents of repressive governments ,13 lest we be
forced to extradite the overseas equivalents of the farmers and other minutemen at
Lexington and Concord.14 In addition, some suggested that adjustments in the
political offense exception might best be addressed uniformly in statute rather than
on an ad hoc treaty by treaty basis;15 while others questioned the wisdom of
endorsing some aspects of criminal justice system in Northern Ireland.16
13 E.g., Hearings at 99 (statement of Professor Christopher H. Pyle) (“The political crimes
defense has been part of Anglo-American extradition practice since the American Civil War,
when Britain refused to surrender gunmen for the Southern cause who had sought refuge in
Canada. It is a standard provision of nearly 90 treaties of extradition that the United States
has concluded with other nations, and is common to the extradition treaties of most western
nations. The defense has survived for more than a century, despite periodic bouts with
political assassinations, kidnappings, and bombings, for two reasons. First, western nations
have found it prudent not to commit themselves, by treaty, to use their legal systems to help
other nations suppress any and all rebellions. Second, they have not wanted to be complicit
in victors’ justice, particularly where that complicity would outrage sympathetic nationality
groups within their own borders”); id. at 51 (statement of Rep. Biaggi).
14 E.g., S.Ex.Rep.No,. 99-17, at 12 (additional views of Sen. Helms)(“If this treaty had been
in effect in 1776 . . . this language would have labeled the boys who fought at Lexington and
Concord as terrorists. There is no question that the British authorities in 1776 would have
considered the guerilla operations of the Americans to be murder and assault. . . . there is
no doubt whatsoever that such a treaty would have required us to extradite the patriots who
fired the shot heard 'round the world to swing on a British gallows”); cf., id. at 491
(statement of Professor Keara M. O'Dempsey)(“In the first ten Congresses of the United
States, a total of 56 senators would probably have been extraditable under a treaty such as
this, for they ‘maliciously wounded and killed’ British soldiers and possessed firearms with
the intent ‘to endanger life’”).
15 E.g., Hearings at 71 (testimony of Rep. Hughes) (“The principal effect of the
supplementary treaty would be the derogation of over 100 years of American extradition
practice and case law by virtually destroying the so-called political offense exception to
extradition law. . . . Moreover, the legal adviser to the State Department admitted . . . that
the United Kingdom is ‘an ideal nation from a moral and political point of view' to begin a
process of exempting ‘stable democracies’ with fair legal systems from the restrictions of
the political crimes defense. I strongly oppose this treaty-by-treaty stratagem, which I
believe would effectively preempt the legislative process. As a result, our extradition laws
will not be consistently applied, but will depend upon the status of the requesting nation as
a friend or ally”); id. at 407-9 (statement of Rep. Rodino).
16 E.g., Hearings at 143 (testimony of Rep. Hamilton Fish, Jr.) (“I ask that you take a long
look at the presumption underlying this treaty; namely, that the judicial process in Northern
Ireland provides fair treatment. The Emergency Powers Act now in effect in Northern
Ireland was originally instituted by the British for the same reasons given for the institution
of the treaty: As a response to the terrorism and violence in Northern Ireland. But it has
become an instrument of oppression against fair and moral political opposition. The
heritage of law, a precious gift of England to so many English-speaking judicial systems
throughout the world, has apparently been set aside by Great Britain in Northern Ireland. .
. . I visited the north of Ireland. I was appalled. . . and offended at the abuses that I saw in
the legal system. In the Diplock courts, there were wide powers of arrest, detention, search
and seizure. The right to a trial by jury had been abolished as cases were heard by a single
judge; accused persons often faced physical and psychological coercion; and a person

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Apart from the political offense question, opponents also protested that the
Supplementary Treaty as transmitted eliminated the statute of limitations defense to
any British request and made its alternations retroactively applicable.17 The
Administration pointed out that the treatment of retroactivity and the lapse of time
issues were standard features of “our newer treaties.”18
After consulting with the Administration and the British Government, the
Senate produced a compromise. First, the Supplementary Treaty that entered into
force after Senate amendment limits the political offense exception to permit the
extradition of terrorists in most cases.19 Second, in such purported terrorist
charged with an offense had no right to bail and could be detained indefinitely. In the last
few years, there have been mass trials of up to 75 defendants at a time, in which one or more
supergrasses, or informants, figured prominently. In these cases, the work of one informant,
protected by Government immunity was enough to convict without further evidence. In the
United States, this would amount, Mr. Chairman, to a loss of constitutional rights under the
1st, 4th, 5th, 6th, 8th and 14th amendments. I ask, can we willingly be a party to the
enforcement of these laws under these conditions”); id. at 65-6 (statement of Sen.
DeConcini).
17 E.g., Hearings at 52 (statement of Rep. Biaggi) (“Sam O'Reilly lives in upstate New
York. He is 89 years old. In 1916 he fought against the British in the so-called Easter
Rebellion. If this treaty were passed Great Britain could extradite Sam O'Reilly to face
charges relating to his activities almost 70 years ago”). Other commentators asked whether
these features might raise ex post facto or bill of attainder issues, id. at 305 (statement of
Professor M. Cherif Bassiouni); id. at 528 (statement of Professor Francis A. Boyle).
18 Hearings at 8 (statement of Dep.Att’y Gen. D. Lowell Jensen).
19 “For the purposes of the Extradition Treaty, none of the following shall be regarded as
an offense of a political character: (a) an offense for which both Contracting Parties have
the obligation pursuant to a multilateral international agreement to extradite the person
sought or to submit his case to their competent authorities for decision as to prosecution; (b)
murder, voluntary manslaughter, and assault causing grievous bodily harm; (c) kidnaping,
abduction, or serious unlawful detention, including taking a hostage; (d) an offense
involving the use of a bomb, grenade, rocket, firearm, letter or parcel bomb, or any
incendiary device if this use endangers any person; and (e) an attempt to commit any of the
foregoing offenses or participation as an accomplice of a person who commits or attempts
to commit such an offense,” Supplementary Treaty, Art. 1.
The agreements mentioned in (a) above appear to include the: Hague Convention for
the Suppression of Unlawful Seizure of Aircraft, 22 U.S.T. 1641 (eff. Oct. 14, 1977);
Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation, 24 U.S.T. 564 (eff. Jan. 26, 1973); United Nations Convention Against Illicit
Traffick in Narcotic Drugs and Psychotropic Substances, S.Treaty Doc. 101-4 (eff. Nov. 11,
1990); Protocol Amending the Single Convention on Narcotic Drugs, 1961, 26 U.S.T. 1439
(eff. Aug. 8, 1975); Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, 28 U.S.T. 1975 (eff. Feb. 20, 1977); International
Convention Against the Taking of Hostages, T.I.A.S. 11081 (eff. Jan. 6, 1985); Convention
on the Physical Protection of Nuclear Material, T.I.A.S. 11080 (Feb. 8, 1987); Convention
Against Torture and Other Cruel, Inhuman,or Degrading Treatment or Punishment,
S.Treaty Doc. 100-20 (eff. Nov. 20, 1994); Protocol for the Suppression of Unlawful Acts
of Violence at Airports Serving International Civil Aviation, S.Treaty Doc. 100-19 (eff. Nov.
18, 1994); Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, S.Treaty Doc. 101-1 (eff. Mar. 6, 1995); Convention on Combating Bribery of

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extradition cases, it creates a defense to extradition where the fugitive can establish
that extradition has been sought or would result in his trial or punishment because of
his race, religion, nationality or political opinions. And it establishes a procedure for
appellate review in such cases.20 Third, it makes it clear that the federal courts may
deny extradition in the absence of probable cause and in response to evidence
presented by the individual sought.21 Finally, it drops the proposed revision of the
statute of limitations clause, so that extradition must be denied if prosecution would
be barred under the laws of either country.22
Foreign Public Officials in International Business Transactions, S.Treaty Doc. 105-43 (eff.
Feb. 15, 1997). Here and elsewhere treaties are referred to by their Senate Treaty Document
number if an official citation is unavailable. The text of Senate Treaty Documents
beginning with the 104th Congress are available at [http://www.gpoaccess.gov].
20 “(a) Notwithstanding any other provision of this Supplementary Treaty, extradition shall
not occur if the person sought establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request for extradition has in fact been
made with a view to try or punish him on account of his race, religion, nationality, or
political opinions, or that he would, if surrendered, be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race, religion, nationality or
political opinions.
“(b) In the United States, the competent judicial authority shall only consider the
defense to extradition set forth in paragraph (a) for offenses listed in Article 1 of this
Supplementary Treaty. A finding under paragraph (a) shall be immediately appealable by
either party to the United States district court, or court of appeals, as appropriate. The appeal
shall receive expedited consideration at every stage. The time for filing a notice of appeal
shall be 30 days from the date of the filing of the decision. In all other respects, the
applicable provisions of the Federal Rules of Appellate Procedure or Civil Procedure, as
appropriate, shall govern the appeals process,” Supplementary Treaty, Art.3.
21 “Nothing in this Supplementary Treaty shall be interpreted as imposing the obligation
to extradite if the judicial authority of the requested Party determines that the evidence of
criminality presented is not sufficient to sustain the charge under the provisions of the treaty.
The evidence of criminality must be such as, according to the law of the requested Party,
would justify committal for trial if the offense had been committed in the territory of the
requested Party.
“In determining whether an individual is extraditable from the United States, the
judicial authority of the United States shall permit the individual sought to present evidence
on the questions of whether: (1) there is probable cause; (2) a defense to extradition
specified in the Extradition Treaty or this Supplementary Treaty, and within the jurisdiction
of the courts, exists; and (3) the act upon which the request for extradition is based would
constitute an offense punishable under the laws of the United States.
“Probable cause means whether there is sufficient evidence to warrant a man of
reasonable caution in the belief that: (1) the person arrested or summoned to appear is the
person sought; (2) in the case of a person accused of having committed a crime, an offense
has been committed by the accused; and (3) in the case of a person alleged to have been
convicted of an offense, a certificate of conviction or other evidence of conviction or
criminality exists,” Supplementary Treaty, Art.2.
22 The treaty offered to the Senate would have permitted extradition as long as the laws of
the requesting nation did not bar prosecution because of the lapse of time (S.Treaty Doc. 99-
8, at 2) – a change thought disadvantageous to fugitives in this country, Hearings at 312-13
(statement of Professor Charles Rice).

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Since the Supplementary Treaty.
Of the four men whose extradition cases served as a catalyst for the
Supplementary Treaty, Desmond Mackin returned to Ireland;23 William Quinn was
extradited;24 and Peter McMullen was deported,25 as was Joseph Doherty.26 Others
appear to have found little refuge in the Supplementary Treaty.27 Commentary on the
Supplementary Treaty and on the cases that followed has been mixed, often
depending upon whether the author’s focus was terrorism,28 intervention in foreign
civil conflicts,29 or inquiry into foreign judicial systems.30 Finally, the conditions in
23 Marshall, Extradited American Gets Life Sentence in IRA Killing, LOS ANGELES TIMES
7 (Feb. 17, 1988).
24 Id.
25 Extradition and the Conflict in Norther Ireland: The Past, the Present and Future of an
Intractable Problem, 25 HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW 169,
182 n.104 (2002). McMullen’s initially successful contention, that the Supplementary
Treaty applied to him would constitute a bill of attainder, ultimately failed, In re Extradition
of McMullen, 769 F.Supp. 1278 (S.D.N.Y. 1991), aff'd, 953 F.2d 761 (2d Cir. 1992), aff'd
in part and rev'd in part en banc, 989 F.2d 603 (2d Cir. 1993).
26 138 Cong.Rec. 2639 (1992) (remarks of Rep.Gilman); see also, Kelly, The Empire
Strikes Back: The Taking of Joe Doherty, 61 FORDHAM LAW REVIEW 317 (1992); 138
Cong.Rec. 1421, 4027, 23160 (1992)(remarks of Sen. Specter, Rep. Neal, and Rep. Engel,
respectively); INS v. Doherty, 502 U.S. 314 (1992).
27 See e.g., In re Extradition of Howard, 791 F.Supp. 31 (D.Mass. 1992), aff'd, 996 F.2d
1320, 1332 (1st Cir. 1993) (magistrate did not err in concluding that a black murder suspect
had failure to show that he would be prejudiced on account of his race if extradited); In re
Extradition of Smyth, 61 F.3d 711, 713 (9th Cir. 1995)(escaped prisoner failed to establish
that he would be discriminatorily punished); In re Extradition of Artt, 972 F.Supp.1253
(N.D.Cal. 1997), rev'd, 158 F.3d 462 (9th Cir. 1998), op. withdrawn, 183 F.3d 944 (9th Cir.
1999)(requests for extradition were withdrawn following the Belfast/Good Friday
Agreement under which the contemporaries of those sought had been released), reinstated,
248 F.3d 1197 (9th Cir. 2001).
28 Hannay, An Analysis of the U.S.-U.K. Supplementary Extradition Treaty, 21
INTERNATIONAL LAWYER 925, 937 (1987)(“The Supplementary Treaty's restriction of the
political offense exception represents a substantial improvement in the ability of the United
States and the United Kingdom to fight the rising tide of international political violence and
is a good model for similar treaties with other democracies”); Sofaer, The Political Offense
Exception and Terrorism, 15 DENVER JOURNAL OF INTERNATIONAL LAW & POLICY 125
(1986); Lubet, Taking the Terror Out of Political Terrorism: The Supplementary Treaty of
Extradition Between the United States and the United Kingdom, 19 CONNECTICUT LAW
REVIEW 862, 892-93 (1987).
29 Bassiouni, The "Political Offense Exception" Revisited: Extradition Between the U.S.
and U.K. – A Choice Between Friendly Cooperation Among Allies and Sound Law and
Policy, 15 DENVER JOURNAL OF INTERNATIONAL LAW & POLICY 255 (1987)(“The
Supplementary Treaty reverses a historical trend in the U.S. . . . Such a reversal . . . means
only that the U.S. has taken sides in an internal political conflict, which it had carefully
avoided doing in the past. A policy of neutrality toward foreign internal civil strife is wisest
in light of the many ongoing civil conflicts occurring all over the world”); Extradition and
the Conflict in Northern Ireland: The Past, Present and Future of an Intractable Problem,
25 HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW 169, 197 (2002)(“The

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Northern Ireland that rested at the heart of the extradition controversy seem to have
improved somewhat. Under the Belfast/Good Friday Agreement violence has
subsided, although hardly disappeared; those held under the Diplock and similar
procedures have been released;31 yet the political solution apparently remains
volatile.32
While they lack the more individualist attributes of the Supplementary Treaty,
the extradition treaties with other nations transmitted to the Senate since then have
generally featured a more modest series of exemptions to the political offense bar.
Most would permit extradition for a political offense that involves a crime of
violence against a head of state or his family, or a crime covered by a treaty
obligation to extradite, or attempt or conspiracy to commit either of these types of
Northern Ireland peace process has created a landscape where the Supplementary Treaty is
no longer necessary or desirable as a means of effecting extradition. . . . Elimination of the
Supplementary Treaty . . . eliminate many of the problems identified above that can flow
from using a treaty-by-treaty approach to extradition, such as eliminating the appearance of
U.S. involvement in the U.K.'s policies in Northern Ireland”).
30 Foreign Courts on Trial: Why U.S. Courts Should Avoid Applying the Inquiry Provision
of the Supplementary U.S.-U.K. Extradition Treaty, 25 STANFORD JOURNAL OF
INTERNATIONAL LAW 257, 288 (1988)(“If application of the traditional political offense
exception strained relations between the United States and United Kingdom, the result of
a judicial determination that the United Kingdom's request was made in bad faith or that its
court system is unfair will have even more disastrous consequences on U.S. foreign
policy”); but see, Revolutionaries Beware: The Erosion of the Political Offense Exception
Under the 1986 United States-United Kingdom Supplementary Extradition Treaty, 136
UNIVERSITY OF PENNSYLVANIA LAW REVIEW 1515, 1545 (1988)(“The problem with this
new treaty is that, although it remedies certain problems that existed under the old regime,
it still does not resolve adequately the problem of how to deal fairly with alleged political
offenders. Article 1, for example, sweeps too broadly in its denial of the political offense
exception to those who commit acts of political violence. It ignores the possibility that there
may be some circumstances under which a person committing such act deserves
protection”).
31 Reconciliation of the Penitent: Sectarian Violence, Prisoner Release, and Justice Under
the Good Friday Peace Accord, 26 JOURNAL OF LEGISLATION 163, 175-75 (2002); The
Legality of the Pardoning of Paramilitaries Under the Early Release Provisions of Northern
Ireland's Good Friday Agreement, 34 CORNELL INTERNATIONAL LAW JOURNAL 227 (2001);
Bell, Dealing With the Past in Northern Ireland, 26 FORDHAM INTERNATIONAL LAW
JOURNAL 1095, 1111-115 (2003).
32 Archick, Northern Ireland: The Peace Process, CRS Rep. CRS Report RS21333 (Apr.
21, 2004); Symposium, Transnational Justice – Northern Ireland and Beyond, 26 FORDHAM
INTERNATIONAL LAW JOURNAL 871 (2003).

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crimes.33 A few, however, do contain exemptions to the political offense ban
reminiscent of the Supplementary Treaty.34
33 “1. Extradition shall not be granted if the offense for which extradition is requested is
a political offense.
“2. For the purposes of this Treaty, the following offenses shall not be considered to
be political offenses: (a) a murder or other willful crime against the person of a Head of
State of one of the Contracting States, or of a member of the Head of State’s family; (b) an
offense for which both Contracting States have the obligation pursuant to a multilateral
international agreement to extradite the person sought or to submit the case to their
competent authorities for decision as to prosecution; and (c) a conspiracy or attempt to
commit any of the foregoing offenses, or aiding or abetting a person who commits or
attempts to commit such offenses.
“3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be
granted if the executive authority of the Requested State determines that the request was
politically motivated,”Extradition Treaty with Belize, Art.4 (1)-(3) (S.Treaty Doc. 106-38);
see also, Extradition Treaty with the Bahamas, Art.3 (1)-(3) (S.Treaty Doc. 102-17);
Extradition Treaty with Jordan, Art.4 (1)-(3) (S.Treaty Doc. 104-3); Extradition Treaty with
the Philippines, Art.3 (1)-(3) (S.Treaty Doc. 104-16); Extradition Treaty with Bolivia, Art.5
(1) (S.Treaty Doc. 104-22); Extradition Treaty with Malaysia, Art.4 (1)-(3) (S.Treaty Doc.
104-26); Extradition Treaty with Cyprus, Art.4 (1)-(3) (S.Treaty Doc. 105-16); Extradition
Treaty with Argentina, Art.4 (1)-(3) (S.Treaty Doc. 105-18); Extradition Treaty with
Antigua and Barbuda, Art.4 (1)-(3) (S.Treaty Doc. 105-19); Extradition Treaty with
Dominica, Art.4 (1)-(3) (S.Treaty Doc. 105-19); Extradition Treaty with Grenada, Art.4 (1)-
(3) (S.Treaty Doc. 105-19); Extradition Treaty with St. Lucia, Art.4 (1)-(3) (S.Treaty Doc.
105-19); Extradition Treaty with St. Kitts and Nevis, Art.4 (1)-(3) (S.Treaty Doc. 105-19);
Extradition Treaty with St. Vincent and the Grenadines, Art.4 (1)-(3) (S.Treaty Doc. 105-
19); Extradition Treaty with Barbados, Art.4 (1)-(3) (S.Treaty Doc. 105-20); Extradition
Treaty with Trinidad and Tobago, Art.4 (1)-(3) (S.Treaty Doc. 105-21); Extradition Treaty
with Korea, Art.4 (1)-(3) (S.Treaty Doc. 106-2); Extradition Treaty with Austria, Art.4 (1)-
(3) (and murder)(S.Treaty Doc. 105-50); Extradition Treaty with Paraguay, Art.4 (1)-(3)
(S.Treaty Doc. 106-4). Four others list treaty obligations under specific treaties rather than
providing a general provision as in Art.4, subpara.2(b) of the Treaty with Belize: Extradition
Treaty with France, Art.4 (1)-(4) (S.Treaty Doc. 105-13); Extradition Treaty with India,
Art.4 (1)-(3) (S.Treaty Doc. 105-30); Extradition Treaty with Sri Lanka, Art.4 (1)-(3)
(S.Treaty Doc. 106-34); Extradition Treaty with Peru, Art.4 (1)-(3) (S.Treaty Doc. 107-6).
The Extradition Treaty with Switzerland, Art.3 (S.Treaty Doc. 104-9) has no exceptions to
the political offense bar.
34 “1. Extradition shall not be granted if the offense for which extradition is requested is
a political offense.
“2. for the purposes of this Treaty, the following offenses shall not be considered to
be political offenses: (a) a murder or other willful crime against the person of a Head of
State of one of the Contracting States, or of a member of the Head of State’s family; (b) an
offense for which both Contracting States have the obligation pursuant to a multilateral
international agreement to extradite the person sought or to submit the case to their
competent authorities for decision as to prosecution; (c) murder, manslaughter, malicious
wounding or inflicting grievous bodily harm; (d) an offense involving kidnaping, abduction,
or any form of unlawful detention, including the taking of a hostage; (e) placing or using an
explosive, incendiary or destructive device or substance capable of endangering life or
causing grievous bodily harm; (f) an attempt to commit, or participation or complicity in the
commission of, any of the foregoing offenses; and (g) an “association of wrongdoers” as
provided by the laws of Luxembourg, or a “conspiracy” as provided by the laws of the
United States, to commit any of the foregoing offenses.

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Objections to 2003 Treaty
At least one early critic of the 2003 Treaty contends that it:
1. Eliminates the political offense for any offense allegedly involving violence
or weapons, including any solicitation, conspiracy or attempt to commit such crimes;
2. Transfers responsibility for determining whether the extradition request is
politically-motivated from the courts to the executive;
3. Allows for extradition even if no U.S. federal law is violated;
4. Eliminates any statute of limitations;
5. Eliminates the need for any showing by the United Kingdom of facts sufficient
to show the person requested is guilty of the crime charged – mere unsupported
allegations are sufficient;
6. Allows for “provisional arrest” and detention for 60 days upon request by the
United Kingdom;
7. Allows for seizure of assets by the United Kingdom;
8. Allows for extradition for one offense, and then subsequent prosecution in the
UK for an unrelated offense (thus eliminating the time-honored “rule of speciality”);
and
9. Applies retroactively, for offenses allegedly committed even before the
ratification of the treaty. Boyle, supra n.3.
Exemptions to the Political Offense Exception.
Eliminates the political offense for any offense allegedly involving violence or
weapons, including any solicitation, conspiracy or attempt to commit such
crimes
It does and more. There is likely to be little consensus over whether this is
objectionable. It is the issue that dominated debate over the Supplementary Treaty.
There is little disagreement over the origins or original rationale of the exception.
As one court has explained:
The political offense exception is premised on a number of justifications.
First, its historical development suggests that it is grounded on the belief that
individuals have a “right to resort to political activism to foster political
change.” This justification is consistent with the modern consensus that
political crimes have greater legitimacy than common crimes. Second, the
exception reflects a concern that individuals – particularly unsuccessful rebels
– should not be returned to countries where they may be subjected to unfair trial
and punishments because of their political opinions. Third, the exception
“3. Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be
granted if the executive authority of the Requested State determines that the request was
politically motivated,” Extradition Treaty with Luxembourg, Art.4(1)-(3) (S.Treaty Doc.
105-10); see also, Supplementary Extradition Treaty with Germany, Art.4 (1)-(3) (S.Treaty
Doc. 100-6); Second Supplementary Extradition Treaty with Spain, Art.4, (1)-(3) (S.Treaty
Doc. 102-24); Extradition Treaty with Hungary, Art.4, (1)-(3) (S.Treaty Doc. 104-5);
Supplementary Extradition Treaty with Belgium, Art.2, (S.Treaty Doc. 104-8); Extradition
Treaty with Poland, Art.4, (1)-(3) (S.Treaty Doc. 105-14); Extradition Treaty with South
Africa, Art.4, (1)-(3) (S.Treaty Doc. 106-24); Extradition Treaty with Lithuania, Art.4, (1)-
(3) (S.Treaty Doc. 107-4).

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comports with the notion that governments – and certainly their non-political
branches – should not intervene in the internal political struggles of other
nations. Quinn v. Robinson, 783 F.2d 776, 792-93 (9th Cir. 1986).
The difficulty comes in defining the exception’s proper scope. Should it protect
fleeing insurgents from prosecution and punishment for acts of violence they
committed against the military forces of the government they sought to overthrow?
Absent a treaty bar, United States courts have held that it should apply to crimes
committed incidental to and in furtherance of rebellion or similar political
disturbance, Id. at 797-78. Reliance upon the exception led to the exemptions to the
exception found in the proposed Supplementary Treaty. The Senate accepted a
somewhat reduced list of exemptions to the political offense exception in exchange
for expanded judicial authority to verify probable cause and the bona fides of a
request.
The 2003 Treaty undoes the Senate changes in the Supplementary Treaty and
enlarges its list of exemptions from the political offense exception (noted in the
italics below):
1. Extradition shall not be granted if the offense for which extradition is
requested is a political offense.
2. For the purposes of this Treaty, the following offenses shall not be
considered political offenses:
(a) an offense for which both Parties have the obligation pursuant to a
multilateral international agreement to extradite the person sought or to submit
the case to their competent authorities for decision as to prosecution;
(b) a murder or other violent crime against the person of a Head of State
or one of the Parties, or of a member of the Head of State's family;
(c) murder, manslaughter, malicious wounding, or inflicting grievous
bodily harm;
(d) an offense involving kidnaping, abduction, or any form of unlawful
detention, including the taking of a hostage;
(e) placing or using, or threatening the placement or use of, an explosive,
incendiary, or destructive device or firearm capable of endangering life, of
causing grievous bodily harm, or of causing substantial property damage;
(f) possession of an explosive, incendiary, or destructive device capable
of endangering life, or causing grievous bodily harm, or of causing substantial
property damage;
(g) an attempt or a conspiracy to commit, participation in the commission
of, aiding or abetting, counseling or procuring the commission of, or being an
accessory before or after the fact to any of the foregoing offenses. 2003 Treaty,
Art.4(1),(2)(emphasis added).
The new head of state exemption is a standard feature of our recent treaties,
even those with comparatively modest exemptions. At first blush, it seems unlikely
to arise with any great frequency. Its actual reach, nevertheless, may increase slightly
depending upon the Parties’ understandings of the meaning of “family” and the new
breadth of subparagraph 4(2)(g) relating to accessories. It might, for example,
embrace anyone who harbored or otherwise afterwards assisted those who

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assassinated Lord Mountbatten, assuming the underlying offense were found to be
a political offense.35
Several of the enlargements – those dealing with possession, conspiracy,
property damage, expanding voluntary manslaughter to include involuntary, and
reaching unlawful detention (serious or otherwise) – repeal specific Senate
amendments to the Supplementary Treaty as originally transmitted to the Senate.36
The inclusion of threats, firearms, possession of explosives, property damage
(independent of bodily injury), and accessories after the fact appears to carry the
provision well beyond the coverage of even the more ambitious of such provisions
in our other recent extradition treaties. Its sweep is made all the more dramatic by
removal of the judicial safety valve found in the Supplementary Treaty’s “improper
motives” Article.
After the text of the 2003 Treaty is official released in this country, the questions
of whether 2003 Treaty represents the latest evolution of political offense bar
exemptions and why they are appropriate in this context but perhaps not others may
be answered.
The Courts, Improper Motives, and Probable Cause.
Transfers responsibility for determining whether the extradition request is
politically-motivated from the courts to the executive
It does. Again whether this is objectionable may depend upon perspective.
Born of a concern for fairness, the features of the Supplementary Treaty are
nonetheless unique. Of course, the question – of whether the crime upon which an
extradition request rests is political crime – is closely related to the question of
whether an extradition request is grounded in improper political motives. The 2003
Treaty strikes or at least extensively prunes perhaps the most individualistic features
of the existing treaty – the treatment of improperly motivated requests and the
specifics concerning the existence of probable cause. Article 3 of the Supplementary
Treaty establishes a judicial procedure replete with appellate rights to bar extradition
based on trumped-up charges or improperly motivated requests.37
35 Lord Mountbatten, the Queen’s cousin, was killed in a bomb blast aboard his yacht
while sailing off the coast of Ireland. The man convicted of his murder was released
pursuant to the Good Friday Agreement, On This Day: August 27, BBC NEWS, available at
http:\news.bbc.co.uk.
36 S.Ex.Rep.No.99-17 (1986)(“The essence of the committee’s compromise is found in
what are now Articles 1 and 3 of the Supplementary Treaty. Article 1 narrows the list of
offenses which a court may treat as political offenses. However, references in the original
Supplementary Treaty to property damage, possession, intent, and conspiracy were deleted;
manslaughter was qualified by ‘voluntary’, and unlawful detention was qualified by
‘serious’”).
37 “(a) Notwithstanding any other provision of this Supplementary Treaty, extradition shall
not occur if the person sought establishes to the satisfaction of the competent judicial
authority by a preponderance of the evidence that the request for extradition has in fact been
made with a view to try or punish him on account of his race, religion, nationality, or

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The Senate Foreign Relations Committee which added Article 3 to the
Supplementary Treaty explained its extraordinary dimensions:
Article 3, part (a) contains two distinct concepts, First, it authorizes a court to
deny extradition based upon a persuasive factual showing that the requesting party has
trumped-up charges against a dissident in order to obtain his extradition for trial or
punishment. Second, it authorizes a court to deny extradition if the person sought for
extradition can establish by a preponderance of the evidence that he would be
prejudiced at this trial, or punished, detained or restricted in his personal liberty
because of his race, religion, nationality or political opinions.
Article 3(a) adapts language found in Article 5 of the European Convention on
the Suppression of terrorism to which the United Kingdom is a party. . . .
During the June 12 business meeting the following colloquy with respect to
article 3(a) took place:
Senator Kerry. Mr. Chairman, as part of that report language I would ask you if
it is your understanding and intention . . . that an individual, as part of showing that
he would . . . if surrendered be prejudiced at his trial or punished, detained or restricted
in his personal liberty by reason of his race, religion, nationality or political opinion,
would that individual be able to challenge the fairness of the judicial system to which
he would be returned and thereby raise a right of inquiry into the fairness of that
system?
The Chairman. Yes.
* * *
Article 3(b) applies only to the United States. It does two things. First, it limits
the scope of article 3(a) in U.S. extradition proceedings to offenses listed in Article 1
of the Supplementary Treaty, In other words, if an individual is wanted for extradition
to the United Kingdom for fraud, drug smuggling or some other offense not listed in
article 1, that individual may not involve article 3(a) before a Federal magistrate or
judge. Article 3(b) also gives either party to the extradition proceeding the right to
appeal a finding under article 3(a). S.Ex.Rep.No. 99-17, at 4-5 (1986).
The 2003 Treaty’s pruning of the improper motivation clause leaves only
political motives suspect and expressly removes the issue from the courts.38 More
political opinions, or that he would, if surrendered, be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race, religion, nationality or
political opinions.
“(b) In the United States, the competent judicial authority shall only consider the
defense to extradition set forth in paragraph (a) for offenses listed in Article 1 of this
Supplementary Treaty. A finding under paragraph (a) shall be immediately appealable by
either party to the United States district court, or court of appeals, as appropriate. The appeal
shall receive expedited consideration at every stage. The time for filing a notice of appeal
shall be 30 days from the date of the filing of the decision. In all other respects, the
applicable provisions of the Federal Rules of Appellate Procedure or Civil Procedure, as
appropriate, shall govern the appeals process,” Supplementary Treaty, Art.3.
38 “Notwithstanding the terms of paragraph 2 of this Article, extradition shall not be
granted if the competent authority of the Requested State determines that the request was
politically motivated. In the United States, the executive branch is the competent authority
for the purpose of this Article,” Art.4(3).
It likewise withdraws authority to pass on the military offense defense from the courts,
“The competent authority of the Requested State may refuse extradition for offenses under
military law that are not offenses under ordinary criminal law. In the United States, the
executive branch is the competent authority for the purpose of this Article,” Art.4(4).

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broadly drafted clauses – proscribing racial, religious or other improperly motivated
extradition requests – are not uncommon elsewhere.39 The 2003 Treaty’s repeal of
the judicial authority to inquiry into extradition motivation, however, comports with
treatment of the issue diplomatically40 and judicially.41
Eliminates the need for any showing by the United Kingdom of facts sufficient
to show the person requested is guilty of the crime charged – mere unsupported
allegations are sufficient
The Supplementary Treaty’s probable cause article reenforces the benefits of
article 3.42 Again the Senate Executive Report is instructive:
39 See e.g., Jamaican Extradition Treaty, Art.3(2), S.Treaty Doc. 98-18 (eff. July 7, 1991);
French Extradition Treaty, Art.4(4), S.Treaty Doc. 105-13 (eff. Feb.1, 2002).
40 Abbell, at 4-60 to 4-61 (“[W]ere it not for the substantial role played by the Senate
Foreign Relations Committee in revising the supplementary extradition treaty between the
United States and the United Kingdom, in the course of which it delegated responsibility to
the courts to decide matters of this nature that would otherwise fall within the Rule of Non-
Inquiry, there would be no question that the determination of a requesting country's motives
in requesting extradition from the United States would continue to be a matter within the
exclusive purview of the Executive. . . . Nevertheless, except with respect to the application
of the supplementary extradition treaty with the United Kingdom itself, the federal courts
have continued to apply, if not strengthen, the Rule of Non-Inquiry in this and other areas.
Moreover, most United States extradition treaties negotiated subsequent to 1986 expressly
leave the determination of the requesting country's motive for requesting extradition to the
executive authority of the requested country, or do not specify the manner in which the
requested country is to make this determination”).
41 Hannay, Analysis of the U.S.-U.K. Supplementary Treaty, 21 INTERNATIONAL LAWYER
925, 926 (1987)(“Under present case law in the United States, it is within the jurisdiction
of the courts to decide whether the crime for which extradition has been requested is a
political offense. By contrast, the Secretary of State has sole discretion to determine
whether an extradition request should be denied because it is a subterfuge, and accordingly,
courts traditionally have declined to consider whether the requesting country's motives in
seeking extradition are political”).
42 “Nothing in this Supplementary Treaty shall be interpreted as imposing the obligation to
extradite if the judicial authority of the requested Party determines that the evidence of
criminality presented is not sufficient to sustain the charge under the provisions of the treaty.
The evidence of criminality must be such as, according to the law of the requested Party,
would justify committal for trial if the offense had been committed in the territory of the
requested Party.
“In determining whether an individual is extraditable from the United States, the
judicial authority of the United States shall permit the individual sought to present evidence
on the questions of whether: (1) there is probable cause; (2) a defense to extradition
specified in the Extradition Treaty or this Supplementary Treaty, and within the jurisdiction
of the courts, exists; and (3) the act upon which the request for extradition is based would
constitute an offense punishable under the laws of the United States.
“Probable cause means whether there is sufficient evidence to warrant a man of
reasonable caution in the belief that: (1) the person arrested or summoned to appear is the
person sought; (2) in the case of a person accused of having committed a crime, an offense
has been committed by the accused; and (3) in the case of a person alleged to have been
convicted of an offense, a certificate of conviction or other evidence of conviction or

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The committee has made a second major change in the Supplementary Treaty as
submitted. It has included, as article 2 of the amended treaty, a restatement of the
procedures that have traditionally governed the consideration of an extradition request
in U.S. courts. This article reaffirms that the magistrate or Federal judge is to permit
the individual to present evidence in connection with the request. It insures that no
individual is to be extradited without a fair hearing. It is designed to lay to rest any
assumption that extradition under this Supplementary Treaty will be automatic or that
Federal magistrates and judges will not carefully evaluate the evidence presented in
support of extradition. Id. at 5-6.
While the 2003 Treaty strikes (1) the Supplementary Treaty language insuring
an individual the right to contest the existence of probable cause to justify
extradition, and (2) the original treaty language on the weight of evidence required
for extradition,43 it does insist that the documentation accompanying a request
include “such information as would provide a reasonable basis to believe that the
person sought committed the offense for which extradition is requested,” 2003
Treaty, Art.8(3)(c).
Extraterritorial Crimes.
Allows for extradition even if no U.S. federal law is violated
It does, but in a less dramatic manner than the objection might imply. As a
general rule, the 2003 Treaty, like its predecessor, limits extradition to misconduct
outlawed in both countries. The exception is found in cases of extraterritoriality.
The existing treaty obligates the Parties to extradite with respect to crimes committed
within the jurisdiction of the requesting country, 1977 Treaty, Art.I. Historically, the
United States has construed this language to mean offenses committed within the
territory of the requesting country.44 As the United States began to assert its criminal
extraterritorial jurisdiction more regularly, it began to negotiate extradition treaties
that either permitted or required extradition to the United States with respect to
crimes committed outside this country.
Our present treaty favors the historical model (“Each Contracting Party
undertakes to extradite to the other . . . any person found in its territory who has been
accused or convicted of any offense . . . committed within the jurisdiction of the other
Party,” 1977 Treaty, Art.I). The 2003 Treaty requires extradition in extraterritorial
cases where the law of the two countries would apply comparably; but permits
extradition in other cases:
If the offense has been committed outside the territory of the Requesting
State, extradition shall be granted in accordance with the provisions of the
criminality exists,” Supplementary Treaty, Art.2.
43 “Extradition shall be granted only if the evidence be found sufficient according to the law
of the requested Party either to justify the committal for trial of the person sought if the
offense of which he is accused had been committed in the territory of the requested Party
or to prove that he is the identical person convicted by the courts of the requesting Party,”
19777 Treaty, Art. IX(1).
44 Abbell, at §3-2(5), citing inter alia, 14 Op.Att’y Gen. 281 (1873).

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Treaty if the laws in the Requested State provide for the punishment of such
conduct committed outside the territory in similar circumstances. If the laws of
the Requested State do not provide for the punishment of such conduct
committed outside of its territory in similar circumstances, the executive
authority of the Requested State, in its discretion, may grant extradition
provided that all other requirements of this Treaty are met. 2003 Treaty, Art.
2(4).
Thus, the United States would be permitted to honor a British extradition
request for an individual charged with a violation of British law on the basis of
conduct committed entirely within this country (even if the conduct were completely
lawful under our laws). And it would be required to honor a request based upon
conduct here but in violation of a British version of a statute like 18 U.S.C. 2339B
(providing material support to terrorist organizations) or 18 U.S.C. 956 (conspiracy
to commit various acts of violence or property damage overseas).
Statute of Limitations.
Eliminates any statute of limitations
It does, as do several of our more recent extradition treaties. The vast majority
of the extradition treaties to which the United States is a party contain a statute of
limitations bar of some kind. In some instances the bar is triggered by the law of the
requesting country; in some by the law of the requested country; and in others by the
law in either country.45 The rationale is presumably the same as in other contexts:
that at least in some instances it is unfair to require individuals to defend themselves
against stale charges after memories have faded, evidence has disappeared, and
witnesses have died.46
Our existing treaty with the United Kingdom bars extradition if trial would be
barred by the lapse of time under the laws of either country.47 The Supplementary
Treaty submitted to the Senate contained an amendment which would have limited
this clause to instances barred by the laws of the requesting country. The change was
thought to benefit the United Kingdom in terrorism cases which were not subject to
a statute of limitations.48 The Senate dropped the amendment from the
Supplementary Treaty, S.Ex.Rep.No. 99-17, at 6 (1986).
45 Abbell, at §3-2(18).
46 See, Stogner v. California, 123 S.Ct. 2446, 2452 (2003).
47 “Extradition shall not be granted if . . . (b) the prosecution for the offense for which
extradition is requested has become barred by lapse of time according to the law of the
requesting or requested Party,” 1977 Treaty, Art. 5(1)(b).
48 Hearings, at 312-13 (statement of Professor Charles Rice). Under American law, there
is generally no statute of limitations for murder, e.g., 18 U.S.C. 3281, or for certain federal
terrorist crimes, 18 U.S.C. 3286(b). The general period of limitation for other federal crimes
is 5 years, 18 U.S.C. 3282.

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Since then, a number of the treaties submitted to the Senate continue to contain
a statute of limitations clause,49 but perhaps an equal number of others either silently
omit the clause50 or include a clause specifically declaring that the expiration of a
period of limitation is no bar to extradition.51 The 2003 Treaty eliminates the passage
of time as a defense altogether regardless of the nature of the crime, “The decision
by the Requested State whether to grant the request for extradition shall be made
without regard to any statute of limitations in either State,” 2003 Treaty, Art.6.
Provisional arrest.
Allows for “provisional arrest” and detention for 60 days upon request by the
United Kingdom
It does, but so does the existing treaty.52 Provisional arrest refers to the authority
to arrest the individual sought for extradition before receiving the full documentation
required to initiate extradition proceedings. The 2003 Treaty is more precise than the
existing treaty in its description of the information that must accompany a request for
provisional arrest. The 2003 Treaty also affords the Parties great flexibility as to the
permissible recipients of requests and documentation, but the most substantial change
seems to be that under the existing treaty the individual must be released after 60
days if the necessary documentation has not arrived while under the 2003 Treaty
release is discretionary.53
49 E.g., Extradition Treaty with Peru, Art.IV(1)(b), S.Treaty Doc.107-6 (2002); Extradition
Treaty with South Africa, Art. 8, S.Treaty Doc. 106-24 (2000); Extradition Treaty with
Luxembourg, Art.2(6), S.Treaty Doc. 105-10 (1997).
50 E.g., Extradition Treaty with Paraguay, S.Treaty Doc. 106-4 (1999); Extradition Treaty
with Zimbabwe, S.Treaty Doc. 105-33 (1998); Extradition Treaty with the Philippines,
S.Treaty Doc. 104-16 (1995).
51 E.g., Extradition Treaty with Lithuania, Art.6, S.Treaty Doc. 107-4 (2002); Extradition
Treaty with Belize, Art.8, S.Treaty Doc. 106-38 (2000); Extradition Treaty with Argentina,
Art. 7, S.Treaty Doc. 105-18 (1997).
52 “(1) In urgent cases the person sought may, in accordance with the law of the requested
Party, be provisionally arrested on application through the diplomatic channel by the
competent authorities of the requesting Party. The application shall contain an indication of
intention to request the extradition of the person sought and a statement of the existence of
a warrant of arrest or a conviction against that person, and, if available, a description of the
person sought, and such further information, if any, as would be necessary to justify the
issue of a warrant of arrest had the offense been committed, or the person sought been
convicted, in the territory of the requested Party.
“(2) A person arrested upon such an application shall be set at liberty upon the
expiration of sixty days from the date of his arrest if a request for his extradition shall not
have been received. This provision shall not prevent the institution of further proceedings
for the extradition of the person sought if a request is subsequently received,” 1977 Treaty,
Art. VIII (emphasis added). The Supplementary Treaty extended the permissible period of
detention from 45 to 60 days.
53 “1. In an urgent situation, the Requesting Sate may request the provisional arrested of
the person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly between
the United States Department of Justice and such competent authority as the United

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Evidence and Forfeitable Property.
Allows for seizure of assets by the United Kingdom
Crime-related assets are subject to seizure under the laws of the United
Kingdom and of the United States under various circumstances, some of which
implement or supplement our treaty obligations. The existing treaty permits the
transfer of evidence and assets from one country to the another.54 Facially, the 2003
Treaty’s treatment of forfeitable property differs from its predecessor in two respects.
It describes the property subject to confiscation more broadly and it omits any
reference to the rights of claimants:
To the extent permitted under its law, the Requested State may seize and
surrender to the Requesting State all items in whatever form, and assets,
including proceeds, that are connected with the offense in respect of which
extradition is granted. The items and assets mentioned in this Article may be
surrendered even when the extradition cannot be effected due to the death,
disappearance, or escape of the person sought. 2003 Treaty, Art. 16(1).
The existing treaty provision is limited to proceeds rather than items “connected
with the offense,” and only extends to items in the actual possession of the individual
to be extradited. The changes reflect a greater federal emphasis on forfeiture as a law
enforcement tool than was the case when the existing treaty was negotiated. Federal
law now authorizes confiscation of property derived from, or in some instances used
Kingdom may designate for the purpose of this Article.
“2. The application for provisional arrest shall contain: a description of the person
sought; (b) the location of the person sought; (c)a brief statement of the facts including, if
possible, the date and location of the offense; (d) a description of the law(s) violated; (e) a
statement of the existence of a warrant or order of arrest or a finding of guilt or judgment
of conviction against the person sought; and (f) a statement that the supporting documents
for the person sought will follow within the time specified in this Treaty.
“3. The Requesting State shall be notified without delay of the disposition of its
request for provisional arrest and the reasons for any inability to proceed with the request.
“4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of provisional arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the documents supporting the extradition request as required in Article 8.
For this purpose, receipt of the formal request for extradition and supporting documents by
the Embassy of the Requested State in the Requesting State shall constitute receipt by the
executive authority of the Requested State.
“5. The fact that the person has been discharged from custody pursuant to paragraph
4 of this article shall not prejudice the subsequent re-arrest and extradition of that person if
the extradition request and supporting documents are delivered at a later date, 2003 Treaty,
Art. 12 (emphasis added).
54 “When a request for extradition is granted, the requested Party shall, so far as its laws
allows and subject to such conditions as it may impose having regard to the rights of other
claimants, furnish the requesting Party with all sums of money and other articles . . .(b)
which may have been acquired by the person sought as a result of the offense and are in his
possession,” Art. XIII.

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to facilitate, any number of federal crimes including terrorism,55 organized crime,56
drug trafficking,57 and other profit generating crimes.58 When they are involved in
financial transactions in this country, it permits the confiscation of the proceeds from
drug trafficking, crimes of violence, fraud, public corruption or smuggling in
violation of the laws of other countries.59
Federal law also provides for federal court orders freezing property located in
this country but subject to confiscation under foreign forfeiture laws comparable to
our own,60 and for enforcement of foreign forfeiture orders by federal courts under
some circumstances.61 Moreover, it vests the Attorney General with the power to
share the proceedings from federal confiscations with foreign countries pursuant to
an international agreement to do so.62 The innocent claimant protections of these
statutes63 would seem to mitigate any adverse consequences attributable to the
omission of any reference to the rights of claimants in the 2003 Treaty.
Rule of Specialty.
Allows for extradition for one offense, and then subsequent prosecution in the
UK for an unrelated offense (thus eliminating the time-honored “rule of
speciality”)
The 2003 Treaty continues the rule in effect, but allows the United States to
consent to deviation by the Great Britain and vice versa. The rule of specialty
permits individuals to be tried and/or punished only for the crimes for which they are
extradited.64 The rule is designed to ensure that an individual is not tried or punished
for a crime for which he would not have been extradited.65 And the elimination of
the rule might be particularly unfair where the individual sought has waived
extradition.
55 18 U.S.C. 981(a)(1)(G).
56 18 U.S.C. 1963.
57 21 U.S.C. 881, 853.
58 18 U.S.C. 981, 982.
59 18 U.S.C. 1956(a),(c)(7)(B); 1957(a),(f)(3); 981(a)(1); 982(a)(1).
60 18 U.S.C. 981(b)(4).
61 28 U.S.C. 2467.
62 18 U.S.C. 981(i)(1).
63 18 U.S.C. 983(d), 1963(l); 21 U.S.C. 853(n); 28 U.S.C. 2467(b)(1)(C).
64 United States v. Antonakeas, 255 F.3d 714, (9th Cir. 2001), citing, United States v.
Rauscher, 119 U.S. 407, 409-10 (1886) and United States v. Alvarez-Machain, 504 U.S.
655, 659-60 (1992); Gallo-Chamorro v. United States, 233 F.3d 1298, 1305 (11th Cir.
2000).
65 RESTATEMENT, §477, Comment b.

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For purposes of American law, the rule is a matter of statutory construction,66
and consequently can be overcome by a provision in a later treaty.67 Most recent
treaties permit the requested country to consent to trial or punishment for offenses
other than those for which the individual was extradited.68 Even without a specific
treaty clause, federal courts have held that the requested country may consent to trial
or punishment for offenses other than those for which extradition was granted.69
Federal courts are divided, however, over the question of whether an individual may
successfully raise the rule on behalf of the country of refuge.70
Our existing treaty with Great Britain codifies the rule and has no consent
exception.71 The 2003 Treaty preserves the rule but contains an explicit consent
exception: “A person extradited under this Treaty may not be detained, tried, or
punished in the Requesting State except for . . . (c) any offense for which the
executive authority of the Requested State waives the rule of specialty and thereby
consents to the person’s detention, trial, or prosecution. . . .” 2003 Treaty, Art.18(1).
Retroactivity.
Applies retroactively, for offenses allegedly committed even before the
ratification of the treaty
66 United States v. Rauscher, 119 U.S. at 423, 433; cf., United States v. Alvarez-Machain,
504 U.S. at 659-60. Abbell, at §3-2(11).
67 Abbell, at 3-3, citing, Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936)
and Charlton v. Kelly, 229 U.S. 447, 463 (1913), respectively (“In analyzing any possible
inconsistencies between the federal extradition statutes and United States extradition
treaties, it should be borne in mind that: (1) to the extent that provisions of extradition
treaties are self-executing, they have the equivalent status of legislation; [and] (2) a later
treaty supersedes an earlier statute to the extent they are inconsistent. . .”).
68 Abbell, at 3-33.
69 United States v. Tse, 135 F.3d 200, 206 (1st Cir. 1998); United States v. Andonian, 29
F.3d 1432, 1435 (9th Cir. 1994); United States v. Diwan, 864 F.2d 715, 721 (11th Cir.
1989).
70 Compare, United States v. Puentes, 50 F.3d 1567, 1572 (11th Cir. 1995); United States
v. Levy, 905 F.2d 326, 328 (10th Cir. 1990); United States v. Thirion, 813 F.2d 146, 151
(8th Cir. 1987); United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986); with, United
States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989); Demjanjuk v. Petrovsky, 776 F.2d
571, 583-84 (6th Cir. 1985).
71 “A person extradited shall not be detained or proceeded against in the territory of the
requesting Party for any offense other than an extraditable offense established by the facts
in respect to which his extradition has been granted, or on account of any other matters, nor
be extradited by that Party to a third State. . . .” 1977 Treaty, Art. XII.

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It does;72 most extradition treaties do.73 The significance of the clause in the
2003 Treaty may be what it does not do. The Supplementary Treaty endorses the
general rule but makes it applicable to earlier offenses only if the offense was
proscribed by the laws of both countries at the time of its commission.74 The 2003
Treaty clause has no such reservation. The omission may be significant when read
in conjunction with the extraterritorial clause to permit extradition for earlier
misconduct committed outside the territory of the requesting country under
circumstances where the misconduct is not proscribed by the laws of the country of
refuge.
Other Treaty Clauses
The 2003 Treaty has other clauses, some of them a departure from our earlier
benefits and obligations, that may evoke comment during the debate over the
Senate’s advice and consent.
Extradition to Third Countries or Entities.
As in the case with our existing treaty with Great Britain, the specialty ban on
prosecution of additional crimes often includes a ban on re-extradition to a third
country, 1977 Treaty, Art.XII. Beginning in the 106th Congress, several extradition
treaties submitted to the Senate bar re-extradition to international tribunals without
consent.75 This may have been done at our behest with an eye to the International
Criminal Court; or at the behest of our treaty partners with an eye to our statutory
provisions relating to the Yugoslav and Rwandan tribunals, 18 U.S.C. 3181 note; or
both; or for some other reason.
In any event, the 2003 Treaty may yield the same result through its more cryptic
reference to “onward extradition” – “A person extradited under this Treaty may not
be the subject of onward extradition or surrender for any offense committed prior to
extradition to the Requesting State unless the Requested State consents,” 2003
72 “This Treaty shall apply to offenses committed before as well as after the date it enters
into force,” 2003 Treaty, Art.22(1).
73 E.g., Extradition Treaty with Lithuania, Art. 21, S.Treaty Doc. 107-4 (2002); Extradition
Treaty with Sri Lanka, Art.21, S.Treaty Doc. 106-34 (2000); Extradition Treaty with Korea,
Art.20, S.Treaty Doc. 106-2 (1999).
74 “This Supplementary Treaty shall apply to any offense committed before or after this
Supplementary Treaty enters into force, provided that this Supplementary Treaty shall not
apply to an offense committed before this Supplementary Treaty enters into force which was
not an offense under the laws of both Contracting Parties at the time of its commission,”
Supplementary Treaty, Art.5.
75 E.g., Extradition Treaty with Lithuania, Art.16(2), S.Treaty Doc.107-4 (2002)(“A person
extradited under this Treaty may not be extradited to a third State or extradited or
surrendered to an international tribunal for an offense committed prior to extradition unless
the Requested State consents”); see also, Extradition Treaty with Sri Lanka, Art.16(2),
S.Treaty Doc. 106-34 (2000); Extradition Treaty with South Africa, Art.18, S.Treaty Doc.
106-24 (2000).

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Treaty, Art. 18(2). At this juncture it is not completely clear what the Parties
understand “onward extradition” to mean.76
In the case of multiple extradition requests, the 2003 Treaty maintains
essentially the same standards for dealing with requests from a third country that
elects to submit a contemporaneous request to the country of refuge rather than
submitting a subsequent request to the country to whom extradition has been granted:
If the Requested State receives requests form two or more States for the
extradition of the same person, either for the same offense or for different
offenses, the executive authority of the Requested State shall consider all
relevant factors, including but not limited to: (a) whether the requests were
made pursuant to a treaty; (b) the place where each offense was committed; (c)
the gravity of the offenses; (d) the possibility of any subsequent extradition
between the respective Requesting States; and (e) the chronological order in
which the requests were received from the respective Requesting States. 2003
Treaty, Art. 15.
The only real difference is that the existing treaty specifically mentions the
nationality of the individual sought as a factor to be considered, 1977 Treaty, Art.X,
while the Parties may count nationality among the unmentioned “relevant factors”
that the 2003 Treaty considers in play. It may be, however, that the Parties have
rejected nationality as a relevant extradition factor under any circumstances. After
all, elsewhere in the 2003 Treaty they have denied themselves the right to refuse to
extradite on the basis of nationality, Art. 3, and have removed the identification of
the nationality of the person sought from the information that must be provided with
an extradition request, Art.8(2).
Double Jeopardy.
Ordinarily, an individual cannot be extradited on the basis of conduct for which
he has already been tried.77 Implementation of this principle takes several forms in
our various extradition treaties. Our existing treaty with Great Britain bars
extradition if prosecution would be precluded in the country of refuge by virtue of
any earlier trial there, or in the requesting country, or in a third country.78 Thus, the
United States may not extradite an individual tried here for the same misconduct.
The United States may, however, honor requests where the individual has previously
been tried in Great Britain or in a third country, because double jeopardy in the
76 An exchange of notes has made it clear, however, that the ban on onward extradition at
least “applies to preclude in accordance with that provision the onward surrender to the
International Criminal Court (ICC) of a person extradited from the United States,” S. Treaty
Doc. at 17, 19.
77 RESTATEMENT §476, Comment c.
78 “Extradition shall not be granted if: (a) the person sought would, if proceeded against in
the territory of the requested Party for the offense for which his extradition is requested, be
entitled to be discharged on the grounds of a previous acquittal or conviction in the territory
of the requesting or requested Party or of a third State,” 1977 Treaty, Art.V(1)(a).

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United States only proscribes trial by the same sovereign.79 The 2003 Treaty
prohibits extradition where the individual has been tried in the country of refuge, and
allows a country of refuge to deny request for an individual tried in a third country,
2003 Treaty, Art.5.
Nationality.
Some nations prefer not to extradite their own citizens and have insisted that
their extradition treaties preserve their right to decline requests to extradite their own
nationals.80 The United States opposes his view.81 Our existing treaty with Great
Britain does not address the issue directly, 1977 Treaty, and as a consequence the
United States may not decline to extradite an American to Great Britain solely on the
grounds of citizenship.82 Like several of our more recent extradition agreements with
common law countries,83 the 2003 Treaty makes this result explicit, “Extradition
shall not be refused based on the nationality of the person sought,” 2003 Treaty,
Art.3.
Waiver.
Neither federal law nor most early treaties provide any obvious mechanism
under which an individual might waive extradition proceedings in this country.84
This can work to the inconvenience of both countries involved in cases where the
delay is of no real benefit to the individual sought. The present treaty does not
address the issue, but like most modern treaties,85 the 2003 Treaty has a waiver
clause: “If the person sought waives extradition and agrees to be surrendered to the
Requesting State, the requested State may surrender the person as expeditiously as
possible without further proceedings,” 2003 Treaty, Art.17.
79 Abbell at §3-2(22), citing, Abbate v. United States, 359 U.S. 187 (1959).
80 Bassiouni, 682-84; RESTATEMENT §475, Comment f.
81 There may be some dispute as to the vintage of our policy, compare, Abbell §2-2(18)(“it
has consistently been the policy of the United States that all nations should extradite their
own nationals”); with, Bassiouni at 684 (“The official policy of the United States in treaty
negotiations has been, until lately, to prevent when possible the surrender of nationals, but
this is no longer the case”).
82 Charlton v. Kelly, 229 U.S. 447, 466-76 (1913); Abbell, 3-23 to 3-24.
83 E.g., Extradition Treaty with Belize, Art.3, S.Treaty Doc.106-38 (2000); Extradition
Treaty with South Africa, Art. 3, S.Treaty Doc. 106-24 (2000); Extradition Treaty with
Grenada, Art.3, S.Treaty Doc. 105-19(1997).
84 Abbell, at §3-3(8).
85 E.g., Extradition Treaty with Korea, Art. 16, S.Treaty Doc. 106-2 (1999); Extradition
Treaty with Luxembourg, Art. 18, S.Treaty Doc.105-10 (1997); Extradition Treaty with
Jamaica, Art. XV, S.Treaty Doc. 98-18 (1984).

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CRS-24
Translations.
Our extradition agreements with English-speaking countries do not ordinarily
include a translation clause. The 2003 Treaty requires documentation in English,
2003 Treaty, Art.11, with the cost of any translation to be borne by the requesting
country as is ordinarily the case in our extradition relations with non-English-
speaking countries.86
Deferred Prosecution or Punishment.
Our existing treaty with Great Britain requires deferral of an extradition request
for an individual being tried or serving a sentence in the requested country for
another offense, 1977 Treaty, Art. VI. The 2003 Treaty affords the requested country
greater flexibility; it may defer the extradition request, the trial, or service of the
sentence.87 In the case of the United States, one commentator has suggested that
because of constraints on stale prosecutions, the United States may be willing to
postpone service of sentence but is not likely to surrender an individual pending trial
unless it is willing to abandon the prospect of future prosecution.88
Transit.
Although the present treaty is silent on the matter, most modern extradition
treaties to which the United States is a party contain a transit clause that allows each
country to effectuate its extradition relations with third nations by transporting
86 2003 Treaty, Art. 20(2); see e.g., Extradition Treaty with Argentina, Arts.9, 19(2),
S.Treaty Doc. 105-18 (1997) (“All documents submitted by the Requesting State pursuant
to this Treaty shall be accompanied by a translation into the language of the Requested
State. . . . The Requesting State shall bear the expenses relating to the translation of
documents. . .”); Extradition Treaty with Korea, Arts. 8(6), 18(2), S.Treaty Doc.106-2
(1999); Extradition Treaty with Austria, Arts. 12, 22(2), S.Treaty Doc. 105-50 (1998).
87 “1. If the extradition request is granted for a person who is being proceeded against or is
serving a sentence in the Requested State, the Requested State may temporarily surrender
the person sought to the Requesting State for the purpose of prosecution. If the Requested
States requests, the Requesting State shall keep the person so surrendered in custody and
shall return that person to the Requested State after the conclusion of the proceedings
against that person, in accordance with conditions to be determined by mutual agreement
of the States.
“2. The Requested State may postpone the extradition proceedings against a person
who is being prosecuted or who is serving a sentence in that State. The postponement may
continue until the prosecution of the person sought has been concluded or until such person
has served any sentence imposed,” 2003 Treaty, Art.14.
88 “In view of the United States confrontation and speedy trial requirements in criminal
cases, it is unlikely that the United States would, except in exceptional circumstances,
temporarily surrender a requested person whom it wished to prosecute for an offense other
than that for which his extradition has been requested because temporary surrender might
preclude subsequent prosecution in the United States. . . . [T]he United States can be
expected frequently to exercise its prerogative to temporarily surrender persons serving
sentences for different offenses in the United States,” Abbell at 3-30 to 3-31.

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individuals across each other’s territory.89 The 2003 Treaty clause grants federal and
British authorities discretionary authority to approve transfers through their
respective countries,90 with exceptions for transportation through a Party’s air space
and procedures in the case of unscheduled aircraft landings.91
Capital Crimes.
The existing extradition treaty makes special provision for capital cases, Art.IV.
The 2003 Treaty makes essentially the same accommodation: “When the offense for
which extradition is sought is punishable by death under the laws in the Requesting
State and is not punishable by death under the laws in the Requested State, the
executive authority in the Requested State may refuse extradition unless the
Requesting State provides an assurance that the death penalty will not be imposed or,
if imposed, will not be carried out,” 2003 Treaty, Art.7.
89 E.g., Extradition Treaty with France, Art. 21, S.Treaty Doc. 105-13 (1997); Extradition
Treaty with Bolivia, Art. XV, S.Treaty Doc. 104-22 (1995); Extradition Treaty with Costa
Rica, Art. 19, S.Treaty Doc. 98-17 (1984).
90 “Either State may authorize transportation through its territory of a person surrendered
to the other State by a third State or from the other State to a third State. A request for
transit shall contain a description of the person being transported and brief statement of the
facts of the case. A person in transit shall be detained in custody during the period of
transit,” 2003 Treaty, Art. 19(1).
91 “Authorization is not required when air transportation is used by one State and no
landing is scheduled on the territory of the other State. If an unscheduled landing does
occur, the state in which the unscheduled landing occurs may require a request for transit
pursuant to paragraph 1 of this Article, and it may detain the person until the request for
transit is received and the transit is effected, as long as the request is received within 96
hours of the unscheduled landing,” 2003 Treaty, Art. 19(2)

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