Extradition To and From the United States: Overview of the Law and Recent Treaties

Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. Int'l L. 21 (Supp. 1935). See also 1 Restatement (Third) of the Foreign Relations Law of the United States § 475 (1987)(Restatement). In the parlance of international law nations are identified as "states." In order to avoid confusion, the several states of the United States will be referred to as "the states of the United States." Interstate rendition, the formal surrender of a person by one of the states of the United States to another, is also sometimes referred to as extradition, but is beyond the scope of this report.

A current list of countries with which the United States has an extradition treaty is found at Appendix A. A slightly less up-to-date listing is found at 18 U.S.C. § 3181 note. A list of countries with which the United States has no extradition treaty in force is found at Appendix B.

Until the early 1970s, the United States received and submitted fewer than 50 extradition requests a year; by the mid 1980's the number had grown to over 500 requests a year, IV Michael Abbell & Bruno A. Ristau, International Judicial Assistance: Criminal (Abbell & Ristau) 11-18 (1990).

Even the term "extradition" did not appear until the late 18^th century. Christopher L. Blakesly, Terrorism, Drugs, International Law, and the Protection of Human Liberty: A Comparative Study of International Law, Its Nature, Role, and Impact in Matters of Terrorism, Drug Trafficking, War, and Extradition 171 (1992). For a more extensive examination of the history of extradition, see Christopher L. Blakesly, The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History, 4 B.C. Int'l & Comp. L. Rev. 39 (1981); Harvard Research in International Law, Draft Convention on Extradition, 29 Am. J. Int'l L. 41-6 (Supp. 1935); M. Cherif Bassiouni, International Extradition: United States Law and Practice (Bassiouni) 1-7 (5^th ed. 2007); Abbell & Ristau, supra footnote 3, at 3-11.

Ramses II of Egypt and the Hittite king, Hattusili III, entered into a pact under which they promised to extradite fugitives of both noble and humble birth, Treaty Between Hattusili and Ramesses II, §§11-14, transliteration and translation in, S. Langdon & Alan H. Gardiner, The Treaty of Alliance Between Hattusili, King of the Hittites, and the Pharaoh Ramesses II of Egypt, 6 Journal of Egyptian Archaeology 179, 192-94 (1920). Until fairly recently, nations seem have been happily rid of those who fled rather than face punishment. The Egyptian-Hittite treaty reflects the fact that extradition existed primarily as an exception to the more favored doctrines of asylum and banishment. Fugitives returned pursuant to the treaty received the benefits of asylum in the form of amnesty, "If one man flee from the land of Egypt, or two, or three, and they come to the great chief of Hatti, the great chief of Hatti shall seize them and shall cause them to be brought to Ramesse-mi-Amun, the great ruler of Egypt. But as for the man who shall be brought to Ramesse-mi-Amun, the great ruler of Egypt, let not his crime be charged against him, let not his house, his wives or his children be destroyed, let him not be killed, let no injury be done to his eyes, to his ears, to his mouth or to his legs ..." § 17, id. at 197.

Restatement, supra footnote 1, Introductory Note to Subchapter 7B (citing Grotius, De Jure Belli ac Pacis, Vol.II, ch.21, §§ 3-4 (Scott ed. 1925)).

"By the latter part of the nineteenth century that [principle] had yielded to the view that delivery of persons charged with, or convicted of, crimes in another state was at most a moral duty, not required by customary international law, but generally governed by treaty and subject to various limitations. A network of bilateral treaties, differing in detail but having considerable similarity in principle and scope, has spelled out these limitations, and in conjunction with state legislation, practice, and judicial decisions has created a body of law with substantial uniformity in major respects. But the network of treaties has not created a principle of customary law requiring extradition, and it is accepted that states are not required to extradite except as obligated to do so by treaty." Id.

From the perspective of one commentator, "The history of extradition can be divided into four periods: (1) ancient times to the seventeenth century—a period revealing an almost exclusive concern for political and religious offenders; (2) the eighteenth century and half of the nineteenth century—a period of treaty-making chiefly concerning military offenders characterizing the condition of Europe during that period; (3) 1833 to 1948—a period of collective concern for suppressing common criminality; and (4) post 1948 developments which ushered in a greater concern for protecting human rights of persons and revealed an awareness of the need to have international due process of law regulate international relations," Bassiouni, supra footnote 4, at 5.

8 Stat. 116, 129 (1794).

A list of countries with which the United States has bilateral extradition treaties is found at Appendix A.

Inter-American Convention on Extradition, entered into force Jan. 25, 1935, 49 Stat. 3111. The Convention provides that it "does not abrogate or modify the bilateral or collective treaties, which at the present date are in force between the signatory States. Nevertheless, if any of said treaties lapse, the present Convention will take effect and become applicable immediately among the respective States…." Id., art. 21. The United States has bilateral extradition treaties with each of the 11 other parties to the Convention, all but three of which were in effect prior to the Convention's entry into force.

Extradition Agreement with the European Union, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14.

Extradition Agreement with the European Union, art. 3, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14.

See, e.g., Bassiouni, supra footnote 4, at Appendix I (listing multilateral conventions containing provisions on extradition).

Restatement, supra footnote 1, §475.

18 U.S.C. §§ 3181-3196.

18 U.S.C. § 3181 (1994) ("The provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government"); 18 U.S.C. § 3184 ("Whenever there is a treaty or convention for extradition between the United States and any foreign government ...") (1994).

E.g., United States v. Alvarez-Machain, 504 U.S. 655, 664 (1992) (citing Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8-9 (1935), as standing for the proposition that the "United States may not extradite a citizen in the absence of a statute or treaty obligation"). Moreover, if the United States has seized a person in foreign territory, it appears that it may surrender the person to the territory's sovereign for criminal prosecution, even in the absence of an extradition treaty or authorizing statute. See Munaf v. Geren, 553 U.S. __, 128 S.Ct. 2207, 2227 (2008) (surrender by U.S. military authorities of two U.S. citizens captured in Iraq to the Iraqi government "was not an extradition" requiring authorizing treaty or statute to occur).

18 U.S.C. § 3181(b) ("The provisions of this chapter shall be construed to permit, in the exercise of comity, the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government if the Attorney General certifies, in writing, that—(1) evidence has been presented by the foreign government that indicates that had the offenses been committed in the United States, they would constitute crimes of violence as defined under section 16 of this title; and (2) the offenses charged are not of a political nature.").

Under U.S. law, legally binding international agreements may take the form of treaties or executive agreements. In order for a treaty (but not an executive agreement) to become the "Law of the Land," the Senate must provide its advice and consent to treaty ratification by a two-thirds majority. U.S. Const., art. VI, § 2. Executive agreements are legally binding agreements entered by the executive branch that are not submitted to the Senate for its advice and consent. For further discussion, see CRS Report RL32528, International Law and Agreements: Their Effect Upon U.S. Law, by [author name scrubbed].

18 U.S.C. § 3181 note, P.L. 104-132, §443, 110 Stat. 1280 (1996). See also Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Law in the Territory of the Former Yugoslavia, entered into force Feb. 14, 1996, TIAS 12570; Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, entered into force Feb. 14, 1996, TIAS 12601.

The magistrate judge wrote that:

The Constitution calls for the Executive to make treaties with the advice and consent of the Senate. Throughout the history of this Republic, every extradition from the United States has been accomplished under the terms of a valid treaty of extradition. In the instant case, it is undisputed that no treaty exists between the United States and the Tribunal. This is so even when, the Government insists, and the Court agrees, the Executive has the full ability and right to negotiate such at a treaty. The absence of a treaty is a fatal defect in the Government's request that the Extraditee be surrendered. Without a treaty, this Court has no jurisdiction to act, and Congress' attempt to effectuate the Agreement in the absence of a treaty is an unconstitutional exercise of power.

Surrender of Ntakirutimana, 988 F.Supp. 1038, 1042 (S.D. Tex. 1997).

In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708 (S.D.Tex. Aug. 6, 1998).

Ntakirutimana v. Reno, 184 F.3d 419, 426 (5^th Cir. 1999) The circuit court described the Supreme Court as having "repeatedly stated that a treaty or statute may confer the power to extradite,…." Id. (citing Valentine v. United States ex rel. Neidecker], 299 U.S. 5, 18 (1935); and quoting Grin v. Shine, 187 U.S. 181, 191 (1902) ("Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient.") (internal citation omitted); and Terlinden v. Ames, 184 U.S. 270, 289 (1902) ("In the United States, the general opinion and practice have been that extradition should be declined in the absence of a conventional or legislative provision.")(internal citation omitted)).

528 U.S. 1135 (2000).

For example, extraditions between the United States and Pakistan continue to be governed by the terms of the 1931 U.S.-U.K. Extradition Treaty, entered into force Jun. 24, 1935, 47 Stat. 2122.

Hoxha v. Levi, 465 F.3d 554, 562-63 (3d Cir. 2006); Kastnerova v. United States, 365 F.3d 980, 986-87 (11^th Cir. 2004); Then v. Melendez, 92 F.3d 851, 853-55 (9^th Cir. 1996). See generally Abbell & Ristau, supra footnote 3, at 52-3, 180-81.

10 Stat. 964, 966 (1852) ("murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or circulation of counterfeit money, whether coin or paper money, or the embezzlement of public moneys").

Section 203 of P.L. 105-323 purports to require construction of an extradition treaty that permits extradition for kidnaping to also be interpreted to authorize extradition for parental kidnaping. The impact of § 203 remains to be seen.

E.g., Extradition Agreement with the European Union, art. 4(1), entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (applying in place of any provision in an earlier extradition agreement between the United States and an EU Member State which only authorized extradition only an exclusive list of offenses, and instead providing that "An offense shall be an extraditable offense if it is punishable under the laws of the requesting and requested States by deprivation of liberty for a maximum period of more than one year or by a more severe penalty"); Argentine Extradition Treaty, art.2(1), entered into force Jun. 15, 2000, S. Treaty Doc. 105-18, TIAS 12866;Paraguyan Extradition Treaty, art. II(1), entered into force Mar. 9, 2001, S. Treaty Doc. 106-4, TIAS 12995; Bolivian Extradition Treaty, art. II(1), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; French Extradition Treaty, art.2(1), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13; Hungarian Extradition Treaty, art.2(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Jordanian Extradition Treaty, art.2(1), entered into force July 29, 1995, S. Treaty Doc. 104-3; Italian Extradition Treaty, art. II(1), entered into force Sept. 24, 1984, 35 U.S.T. 3023. Where an official citation is unavailable for particular treaty, we have used the Senate Treaty Document citation along with the date upon which the treaty entered into force according the State Department. The most recent publicly available compendium of U.S. agreements is Treaties In Force 2009, available on Mar. 17, 2010, at http://www.state.gov/documents/organization/123746.pdf. Beginning with the 104^th Congress, Senate Treaty Documents are available on the Government Printing Office's website, http://www.gpoaccess.gov/.

E.g., Extradition Treaty with Latvia, art. 4(4), entered into force Apr. 15, 2009, S. Treaty Doc. 109-15, art. 4(4) ("The executive authority of the Requested State may refuse extradition for offenses under military law that are not offenses under ordinary criminal law."); Italian Extradition Treaty, art. V(3), entered into force Sept. 24, 1984, 35 U.S.T. 3023 ("Extradition shall not be granted for offenses under military law which are not offenses under ordinary criminal law"). See generally In re Extradition of Suarez-Mason, 694 F.Supp. 676, 702-3 (N.D.Cal. 1988)(the military offense exception covers crimes like "mutiny and desertion which are outside the realm of ordinary criminal law"); Bassiouni, supra footnote 4, at 732-34; Abbell & Ristau, supra footnote 3, at 116-17, 212-13.

Michael Abbell, Extradition to and From the United States (Abbell) §3-2(25) (No United States extradition treaty negotiated prior to 1960 contains an express military offense exception).

Even there the political offense exception was thought more hospitable, except in the case of desertion. See generally David A. Tate, Draft Evasion and the Problem of Extradition, 32 Alb. L. Rev. 337 (1968).

See generally Bassiouni, supra footnote 4, at 650-732; Restatement, supra footnote 1, §476, Comment g. & Reporters' Notes 4-8; Abbell & Ristau, supra footnote 3, at 199-212; R. Stuart Phillips, The Political Offense Exception and Terrorism: Its Place in the Current Extradition Scheme and Proposals for its Future, 15 Dick. J. Int'l L. 337 (1997); Michelle N. Lewis, Note, The Political Offense Exception: Reconciling the Tension Between Human Rights and International Public Order, 63 Geo. Wash. L. Rev. 585 (1995).

Egyptian Extradition Treaty, art. III, entered into force Apr. 22, 1875, 19 Stat. 574 ("The provisions of this treaty shall not apply to any crime or offence of a political character").

Kostotas v. Roche, 931 F.2d 169, 171 (1^st Cir. 1991) (citing Eain v. Wilkes, 641 F.2d 504, 512 (7^th Cir. 1981)). Ordinola v. Hackman, 478 F.3d 588, 596-97 (4^th Cir. 2007); Vo v. Benov, 447 F.3d 1235, 1241 (9^th Cir. 2006); Barapind v. Enomoto, 400 F.3d 744, 750 (9^th Cir. 2005); Escobedo v. United States, 623 F.2d 1098, 1104 (5^th Cir. 1980); Sindona v. Grant, 619 F.2d 167, 173 (2d Cir. 1980); Quinn v. Robinson, 783 F.2d 776, 807-9 (9^th Cir. 1986); Ornelas v. Ruiz, 161 U.S. 689, 692 (1896).

E.g., Hungarian Extradition Treaty, art. 4(2), entered into force Mar. 18,1997, S. Treaty Doc. 104-5 ("For 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 Parties, or a member of the Head of State's family; ... c. murder, manslaughter, or other offense involving substantial bodily harm; d. an offense involving kidnaping or any form of unlawful detention, including the taking of a hostage; e. placing or using an explosive, incendiary or destructive device capable of endangering life, of causing substantial bodily harm, or of causing substantial property damage; and f. a conspiracy or any type of association to commit offenses as specified in Article 2, paragraph 2, or attempt to commit, or participation in the commission of, any of the foregoing offenses"); Polish Extradition Treaty, art.5(2), entered into force Sept. 17, 1999, S. Treaty Doc. 105-14 (murder or other offense against heads of state or their families; murder, manslaughter, assault; kidnaping, abduction, hostage taking; bombing; or attempt or conspiracy to commit any of those offenses); Extradition Treaty with Luxembourg, art. 4(2), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804 (virtually the same); Costa Rican Extradition Treaty, art. 4(2)(a), entered into force Oct. 11, 1991, S. Treaty Doc. 98-17 (violent crimes against a Head of State or a member of his or her family).

Jamaican Extradition Treaty, art. III(2), entered into force July 7, 1991, S. Treaty Doc. 98-18 ("Extradition shall also not be granted if ... (b) it is established that the request for extradition, though purporting to be on account of the extraditable offence, is in fact made for the purpose of prosecuting or punishing the person sought on account of his race, religion, nationality, or political opinions; or (c) the person sought is by reason of his race, religion, nationality, or political opinions, likely to be denied a fair trial or punished, detained or restricted in his personal liberty for such reasons" ); Extradition Treaty with the Bahamas, art. 3(1)(c), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 ("Extradition shall not be granted when: ... the executive authority of the Requested State determines that the request was politically or racially motivated"); Extradition Treaty with Cyprus, art.4(3), entered into force Sept. 14, 1999, S. Treaty Doc. 105-16 (politically motivated); French Extradition Treaty, art.4(4), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13 (prosecution or punishment on account of the fugitive's "race, religion, nationality or political opinions").

Costa Rican Extradition Treaty, art.4(2)(b), entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Peruvian Extradition Treaty, art. IV(1)-(3), entered into force Aug. 25, 2003, S. Treaty Doc. 107-6; Korean Extradition Treaty, art. 4(2)(b), entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962; Indian Extradition Treaty, art.4(2), entered into force July 21, 1999, S. Treaty Doc. 105-30, TIAS 12873; Hungarian Extradition Treaty, art. 4(2), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5 ("For purposes of this Treaty, the following offenses shall not be considered to be political offenses ... an offense for which both Contracting 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"). The State Department has noted that the list of crimes subject to such international agreements includes air piracy, aircraft sabotage, crimes of violence committed against foreign dignitaries, hostage taking and narcotics trafficking. See State Dept., Letter of Submittal for Hungarian Extradition Treaty, S. Treaty Doc. 104-5, at VI. Unless restricted in the Treaty, the list apparently also includes, inter alia, genocide, war crimes, theft of nuclear materials, slavery, torture, violence committed against the safety of maritime navigation or maritime platforms, theft or destruction of national treasures, counterfeiting currency and bribery of foreign officials. Bassiouni, supra footnote 4, at 714-28.

See Bassiouni, supra footnote 4, at Appendix I (listing multilateral conventions containing provisions on extradition).

See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, art. VII, entered into force for the United States on Feb. 23, 1989, 78 U.N.T.S. 277, 28 I.L.M. 763 ("Genocide and the other acts enumerated…shall not be considered as political crimes for the purpose of extradition." ); International Convention for the Suppression of Terrorist Bombings, art. 11, entered into force for the United States on July 26, 2002, S. Treaty Doc. 106-6 ("None of the offences set forth…shall be regarded for the purposes of extradition or mutual legal assistance as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives."); International Convention for the Suppression of the Financing of Terrorism, art. 14, entered into force for the United States on July 26, 2002, S. Treaty Doc. 106-49 (same).

William A. Schabas, The International Sourcebook on Capital Punishment, 239-45 (1997); Roger Hood, The Death Penalty: A World-Wide Perspective, 240-47 (2d ed. 1996).

E.g., Extradition Agreement with the European Union, art. 13, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (provision that may be applied in place or in absence of comparable requirement in existing extradition agreement between the United States and an EU Member State, stating that 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 requested State may grant extradition on the condition that the death penalty shall not be imposed on the person sought, or if for prosecural reasons such condition cannot be complied with …, on the condition that the death penalty if imposed shall not be carried out.");Jordanian Extradition Treaty, art. 7, entered into force July 29, 1995, S. Treaty Doc. 104-3 ("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 Requested State may refuse extradition unless the Requesting State provides such assurances as the Requested State considers sufficient that the death penalty, if imposed, shall not be carried out"). See also Argentine Extradition Treaty, art. 6, entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866; Bolivian Extradition Treaty, art. IV(1), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Hungarian Extradition Treaty, art. 7(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; South African Extradition Treaty, art. 5, entered into force June 25, 2001, S. Treaty Doc. 106-24; Costa Rican Extradition Treaty, art. 5, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17. On the other hand, the capital punishment mutuality provision can redound to U.S. interests when another nation has a wider range of capital offenses than does the United States. See, e.g., S. Comm. on For. Relat., Report on Extradition Treaty with Jordan, S. Exec. Rep. 104-2, at 9 (1995)("The United States delegation sought this provision because Jordan imposes the death penalty for some crimes that are not punishable by death in the United States"). Some capital punishment clauses do not apply in murder cases. See, e.g., Extradition Treaty with the Bahamas, art. 7, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 ("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 competent authority of the Requested State may refuse extradition unless: (a) the offense constitutes murder under the laws in the Requested State; or (b) the competent authority of the Requesting State provides such assurances as the competent authority of the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out"); Extradition Treaty with Thailand, art. 6, entered into force May 17, 1991, S. Treaty Doc. 98-16; Extradition Treaty with Sri Lanka, art. 7, entered into force Jan. 12, 2001, S. Treaty Doc. 106-34.

Bassiouni, supra footnote 4, at 621-38; Abbell & Ristau, supra footnote 3, at 117-19, 295-6; Anne Mori Kobayashi, Note, International and Domestic Approaches to Constitutional Protections of Individual Rights: Reconciling the Soering and Kindler Decisions, 34 Am. Crim. L. Rev. 225 (1996); Craig R. Roecks, Comment, Extradition, Human Rights, and the Death Penalty: When Nations Must Refuse to Extradite a Person Charged with a Capital Crime, 25 Cal. W. Int'l L. J. 189 (1994).

7 Foreign Affairs Manual § 1613.4.

Restatement, supra footnote 1, §476. See also United States v. Saccoccia, 58 F.3d 754, 766 (1^st Cir. 1995). Examples include the Italian Extradition Treaty, art. II(1), entered into force Sept. 24, 1984, 35 U.S.T. 3023 ("An offense, however denominated, shall be an extraditable offense only if it is punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty ..."); Extradition Treaty with Belize, art. 2(1), entered into force Mar. 27, 2001, S. Treaty Doc. 106-38; Argentine Extradition Treaty, art. 2(1), entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866; Extradition Treaty with Uruguay, art. 2, entered into force Apr. 11, 1984, 35 U.S.T. 3197 (with respect to enumerated offenses); Hungarian Extradition Treaty, art. 2(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Jordanian Extradition Treaty, art. 2(1), entered into force Jul. 29, 1995; S. Treaty Doc. 104-3; Bolivian Extradition Treaty, art. II(1), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with the Bahamas, art. 2(1), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Extradition Treaty with Thailand, art. 2(1), entered into force May 17, 1991, S. Treaty Doc. 98-16; Costa Rican Extradition Treaty, art. 2(1), entered into force Oct. 11, 1991, S. Treaty Doc. 98-17.

In re Extradition of Loharoia, 932 F.Supp. 802, 810 (N.D.Tex. 1996) ("The principle is a general policy of extradition, and arguably applies even absent explicit inclusion in the treaty in question. See Wright v. Henkel, 190 U.S. 40, 58 (1903); Bauch v. Raiche, 618 F.2d 843, 847 (1^st Cir. 1980). On the other hand, there is authority suggesting that the principle does not apply unless it is expressly stated in the treaty. See Factor [v. Laubenheimer], 290 U.S. [276], at 287-90 [(1933)]").

John T. Soma, Thomas F. Muther, Jr., & Heidi M.L. Brissette, Transnational Extradition for Computer Crimes; Are New Treaties and Laws Needed? 34 Harv. J. on Legis. 317, 324 (1997).

Collins v. Loisel, 259 U.S. 309, 312 (1922). See also United States v. Anderson, 472 F.3d 662, 664-65 (9^th Cir. 2006); Gallo-Chamorro v. United States, 233 F.3d 1298, 1307 (11^th Cir. 2000); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7^th Cir. 1997); LoDuca v. United States, 93 F.3d 1100, 1112 (2d Cir. 1996); United States v. Saccoccia, 58 F.3d 754, 766 (1^st Cir. 1995); In re Extradition of Platko, 213 F.Supp.2d 1229, 1236 (S.D.Cal. 2002). See generally Test of "Dual Criminality" Where Extradition to or From Foreign Nation Is Sought, 132 ALR Fed 525 (1996 & Sept. 2009 Supp.) [hereinafter ALR].

Jonathan O. Hafen, Comment, International Extradition: Issues Arising Under the Dual Criminality Requirement, 1992 BYU L. Rev. 191, 207 ("The current state of the law appears to be that if the offense is considered criminal under federal law, the law of the asylum State, or under the law of the preponderance of States, the dual criminal requirement is satisfied"); ALR, supra footnote 48, at 539-40.

The Racketeer Influenced and Corrupt Organization (RICO) provisions prohibit acquisition or operation of an interstate commercial enterprise through the patterned commission of various other "predicate" offenses, 18 U.S.C. §§ 1961-1966. The Continuing Criminal Enterprise (CCE) or drug kingpin provisions, 21 U.S.C. § 848, outlaw management of a large drug trafficking operation. Along with attempt, conspiracy and federal crimes with distinctive jurisdictional elements, they pose difficulties when they approximate but do not exactly matching the elements for extraditable offenses. They present a distinct problem, however, when they are based entirely on predicate offenses that are not themselves extraditable offenses. Bassiouni, supra footnote 4, at 531-537; Barbara Sicalides, Comment, RICO, CCE, and International Extradition, 62 Temp.L. Rev. 1281 (1989).

E.g., Extradition Agreement with the European Union, art. 4(2), entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (superceding certain types of extradition agreements between the United States and EU Member States so that, in extradition requests made between those countries, an offense shall be considered extraditable "regardless of whether the offence is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court"); Protocol Amending U.S.-Israel Extradition Treaty, art. 1, entered into force Jan. 10, 2007, S. Treaty Doc.109-3 (replacing art. II of earlier treaty); Lithuanian Extradition Treaty, art. 2(3), entered into force Mar. 31, 2003, S. Treaty Doc. 107-4; Austrian Extradition Treaty, art. 2(4)(c), entered into force Jan. 1, 2000, S. Treaty Doc. 105-50, TIAS 12916; Extradition Treaty with Belize, art. 2(3)(b), entered into force Mar. 27, 2001, S. Treaty Doc. 106-38; Korean Extradition Treaty, art. 2(3)(c), entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962.

E.g., Extradition Agreement with the European Union, art. 4(1), entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (superceding certain types of extradition agreements between the United States and EU Member States so that, in extradition requests made between those countries, extraditable offenses shall be understood to include "an attempt or conspiracy to commit, or participation in the commission of, an extraditable offense"); Extradition Treaty with the Bahamas, art. 2(2), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 ("An offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, aiding or abetting, counselling, causing or procuring the commission of, or being an accessory before or after the fact to, an [extraditable] offense ..."); Extradition Treaty with Trinidad and Tobago, art. 2(2), entered into force Nov. 29, 1999, S. Treaty Doc. 105-21; Jordanian Extradition Treaty, art. 2(2), entered into force July 29, 1995, S. Treaty Doc. 104-3 ("An offense shall also be an extraditable offense if it consists of an attempt or a conspiracy to commit, or participation in the commission of, an [extraditable] offense ..."); Extradition Treaty with Luxembourg, art. 2(1), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804; Extradition Treaty with the United Kingdom, art. 2(2), entered into force April 26, 2007, S. Treaty Doc. 108-23 ("An offense shall also be an extraditable offense if it consists of 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.").

E.g., South African Extradition Treaty, art. 2(6), entered into force June 25, 2001, S. Treaty Doc. 106-24 ("Where extradition of a person is sought for an offense against a law relating to taxation, customs duties, exchange control, or other revenue matters, extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, customs duty, or exchange regulation of the same kinds as the law of the Requesting State"); Extradition Agreement with the European Union, art. 4(3)(c), entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (applying in place of provisions contained in any earlier extradition treaty between the United States and an EU Member State that allowed for extradition only for a specified list of offenses); Austrian Extradition Treaty, art. 2(4)(B), entered into force Jan. 1, 2002, S. Treaty Doc. 105-50, TIAS 12916; Korean Extradition Treaty, art. 2(6), entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962; Polish Extradition Treaty, art. 3, entered into force Sept. 17, 1999, S. Treaty Doc. 105-14. But see Extradition Treaty with Luxembourg, art. 5(1), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804 ("The executive authority of the Requested State shall have discretion to deny extradition when the offense for which extradition is requested is a fiscal offense [i.e., purely a tax, customs, or currency offense]."). Historically, offenses of a fiscal character were not extraditable. Such offenses are "gradually appearing in extradition treaties, but difficulty remains in satisfying the requirement of due criminality because of the problem of defining such offenses and determining their significance in the economic system of each particular country." Bassiouni, supra footnote 4, at 735-736.

Abbell & Ristau, supra footnote 3, at 64-7, 278-80.

Even among countries with a fairly expansive view of the extraterritorial jurisdiction, there may be substantial differences between the perceptions of common law countries and those of civil law countries, Charles L. Blakesley, A Conceptual Framework for Extradition and Jurisdiction Over Extraterritorial Crimes, 1984 Utah L. Rev. 685 (1984).

E.g., Peruvian Extradition Treaty, art. II(3)(c), entered into force Mar. 25, 2003, S. Treaty Doc. 107-6 ("For the purposes of this Article, an offense shall be an extraditable offense, regardless of ... (c) where the offense was committed"); Bolivian Extradition Treaty, art. II(3)(b), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 ("To determine ... whether an offense is punishable under the laws in the Requested State, it shall be irrelevant ... where the act or acts constituting the offense were committed"); Jordanian Extradition Treaty, art. 2(4), entered into force July 29, 1995, S. Treaty Doc. 104-3 ("An offense described in this Article shall be an extraditable offense regardless of where the act or acts constituting the offense were committed"); Austrian Extradition Treaty, art. 2(6), entered into force Jan. 1, 2002, S. Treaty Doc. 105-50, TIAS 12916; Indian Extradition Treaty, art. 2(4), entered into force July 21, 1999, S. Treaty Doc. 105-30, TIAS 12873; Extradition Treaty with Luxembourg, art. 2(4), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804.

E.g., Extradition Agreement with Malta, art. 2(4), entered into force Feb. 1, 2010, S. Treaty Doc. 109-17 ("If the offense has been committed outside the territory of the Requesting State, extradition shall be granted…if the laws of the Requested State provide for the punishment of an offense committed outside of its territory in similar circumstances. If the laws of the Requested State do not [so] provide…, the executive authority of the Requested State, at its discretion, may grant extradition…."); Hungarian Extradition Treaty, art. 2(4), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with the Bahamas, art. 2(4), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 ("An offense described in this Article shall be an extraditable offense whether or not the offense was committed within the territory of the Requesting State. However, if the offense was committed outside the territory of the Requesting State, extradition shall be granted if the law of the Requested State provides for punishment of an offense committed outside of its territory in similar circumstances"); Italian Extradition Treaty, art. III, entered into force Sept. 24, 1984, 35 U.S.T. 3023 ("When an offense has been committed outside the territory of the Requesting Party, the Requested Party shall have the power to grant extradition if its laws provide for the punishment of such an offense or if the person sought is a national of the Requesting Party"); Extradition Treaty with Uruguay, art. 3, ¶2, entered into force Apr. 11, 1984, 35 U.S.T. 3197 ("... When the offense for which extradition has been requested has been committed outside the territory of the requesting Party, extradition may be granted if the laws of the requested Party provide for the punishment of such an offense committed in similar circumstances"); French Extradition Treaty, art. 2(4), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13 ("Extradition shall be granted for an extraditable offense committed outside the territory of the Requesting State, when the laws of the requested Party authorize the prosecution or provide the punishment of that offense in similar circumstances").

Restatement, supra footnote 1, §475, Reporters' Note 4.

The Supreme Court in Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936), held that a national exemption clause, which denied that the United States had any obligation to extradite American citizens, could not be construed to provide the Executive with authority to extradite such persons as a matter of discretion. Some 50 years later, Congress sought to reverse the result of this ruling with the enactment of 18 U.S.C. § 3196 ("If the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country, the Secretary of State may, nevertheless, order the surrender to that country of a United States citizen whose extradition has been requested by that country if the other requirements of that treaty or convention are met"). There have been differing court rulings as to the interplay between 18 U.S.C. § 3196 and extradition treaties that contain national exemption clauses but lack provisions affirmatively granting parties' the discretionary authority to extradite their nationals. In Gouveia v. Vokes, 800 F.Supp. 241 (E.D.Pa. 1992), the district court interpreted § 3196 as amending the national exemption clause contained in the 1908 U.S.-Portugal extradition treaty, which provided that neither party was "bound to deliver up its own citizens or subjects" to the other. The Gouveia court interpreted § 3196 as a statutory amendment to the U.S.-Portugal treaty and other extradition agreements which contained national exemption clauses, and suggested that a statutory amendment to an extradition treaty would unconstitutionally infringe upon the President's treaty-making power. Id. at 258-259. However, the court avoided striking down § 3196 on constitutional grounds by construing the statute as non-retroactive in effect, thereby precluding its application to the case before it, which concerned a U.S. national whose extradition to Portugal had already been denied prior to the statute's enactment. On the other hand, in Hilario v. United States, 854 F.Supp.165 (E.D.N.Y. 1994), a federal district court expressly rejected the reasoning of Gouveia, and found § 3196 to be constitutionally valid. Here again, the case centered on the relationship between § 3196 and the U.S.-Portugal treaty. The Hilario court held that § 3196 did not "override, alter, or amend any provision" of the treaty, because although the agreement did not require a party to surrender its nationals to the requesting State, "each signatory retains full sovereign discretion [to extradite its nationals] without any risk of breach." Id. at 169. The court also ruled that "the power to extradite can be conferred either by legislation or by treaty amendment," and interpreted § 3196 as permitting the extradition of U.S. nationals whose alleged criminal conduct and conviction predated the statute's enactment. Id. at 175-176. Subsequent rulings by other courts have also found § 3196 to be constitutionally valid. See In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708, at *15-16 (S.D.Tex. Aug.6, 1998) (favorably discussing Hilario); Ravelo Monegro v. Rosa, No. C98-1414, 1999 WL 38906, at *2 (N.D.Cal.,Jan. 28, 1999) ("the Court agrees with the Hilario court's determination that Congress' decision to use a statute to empower the Secretary of State to extradite U.S. citizens is consistent with the Treaty"). See also Sacirbey v. Guccione, 589 F.3d 52 (2d Cir. 2009)(recognizing § 3196 as authorizing Secretary of State to extradite U.S. citizen when underlying treaty gave Secretary discretion to refuse extradition of U.S. nationals); Lopez-Smith v. Hood, 121 F.3d 1322, 1325-326 (9^th Cir. 1997)(section 3196 and a treaty provision stating that the parties "may" extradite their own nationals affords discretion to the Secretary of State).

Bassiouni, supra footnote 4, at 739; Abbell & Ristau, supra footnote 3, at 67-71, 186-87, 280-81.

Extradition Treaty with the United Kingdom, art. 3, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("Extradition shall not be refused based on the nationality of the person sought."); South African Extradition Treaty, art. 3, entered into force June 25, 2001, S. Treaty Doc. 106-24 (same). See also Argentine Extradition Treaty, art. 3, entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866; Extradition Treaty with the Bahamas, art. 4, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Extradition Treaty with Belize, art. 3, entered into force Mar. 27, 2001, S. Treaty Doc. 106-38 ("Extradition shall not be refused on the ground that the person sought is a national of the Requested State."); Jordanian Extradition Treaty, art. 3, entered into force July 29, 1995, S. Treaty Doc. 104-3 ("If all conditions in this Treaty relating to extradition are met, extradition shall not be refused based on the nationality of the person sought."); Italian Extradition Treaty, art. IV, entered into force Sept. 24, 1984, 35 U.S.T. 3023 ( "A Requested Party shall not decline to extradite a person because such a person is a national of the Requested Party."); Extradition Treaty with Uruguay, art. 4, entered into force Apr. 11, 1984, 35 U.S.T. 3197 (similar).

See Bolivian Extradition Treaty, art. III(1), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 ("Neither Party shall be obligated to extradite its own nationals, except when the extradition request refers to ... (b) murder; voluntary manslaughter; kidnaping; aggravated assault; rape; sexual offenses involving children; armed robbery; offenses related to the illicit traffic in controlled substances; serious offenses related to terrorism; serious offenses related to organized criminal activity; fraud against the government or involving multiple victims; counterfeiting of currency; offenses related to the traffic in historical or archeological items; offenses punishable in both States by deprivation of liberty for a maximum period of at least ten years; or (c) an attempt or conspiracy, participation in, or association regarding the commission of any of the offenses described in subparagraphs (a) and (b)").

Extradition Treaty with Malta, art. 3(1), entered into force Feb. 1, 2010, S. Treaty Doc. 109-17 (precluding fugitive's nationality from serving as the sole basis to refuse extradition in relation to 30 listed offenses); Bulgarian Extradition Treaty, art. 3(1), entered into force May 21, 2009, S. Treaty Doc. 110-12 (same).

Bolivian Extradition Treaty, art. III(1)(a), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 ("Neither Party shall be obligated to extradite its own nationals, except when the extradition request refers to: (a) offenses as to which there is an obligation to establish criminal jurisdiction pursuant to multilateral international treaties in force with respect to the Parties").

E.g., Hungarian Extradition Treaty, art. 3(2), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5 ("If extradition is refused solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit the case to its authorities for prosecution"); Austrian Extradition Treaty, art. 3(2), entered into force Jan. 1, 2000, S. Treaty Doc. 105-50, TIAS 12916; Extradition Treaty with Cyprus, art. 3, entered into force Sept. 14, 1999, S. Treaty Doc. 105-16; Bolivian Extradition Treaty, art. III(3), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with Thailand, art. 8(2), entered into force May 17, 1991, S. Treaty Doc. 98-16; Costa Rican Extradition Treaty, art. 8(3), entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jamaican Extradition Treaty, art. VII, entered into force July 7, 1991,S. Treaty Doc. 98-18 (similar, but also requiring extradition if a fugitive is a national of both the Requesting and Requested State).

Heath v. Alabama, 474 U.S. 82, 88 (1985) ("The dual sovereignty doctrine, as originally articulated and consistently applied by this Court, compels the conclusion that successive prosecutions by two States for the same conduct are not barred by the Double Jeopardy Clause."). See also Bassiouni, supra footnote 4, at 759 ("As the jurisprudence of the United States presently stands, the double jeopardy clause of the Fifth Amendment of the Constitution…does not prevent extradition to another state unless the relevant treaty provides that double jeopardy shall apply.").

Bassiouni, supra footnote 4, at 749-63; Abbell & Ristau, supra footnote 3, at 96-100, 192-98, 290-93.

Italian Extradition Treaty, art. VI, entered into force Sept. 24, 1984, 35 U.S.T. 3023 ("Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same act for which extradition is requested").

E.g., Extradition Treaty with the United Kingdom, art. 5, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("1. Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested. 2. The Requested State may refuse extradition when the person sought has been convicted or acquitted in a third state in respect of the conduct for which extradition is requested. 3. Extradition shall not be precluded by the fact that the competent authorities of the Requested State: (a) have decided not to prosecute the person sought for the acts for which extradition is requested; (b) have decided to discontinue any criminal proceedings which have been instituted against the person sought for those acts; or (c) are still investigating the person sought for the same acts for which extradition is sought."); Bolivian Extradition Treaty, art. V(2), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 ("Extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested. Extradition shall not be precluded by the fact that the authorities of the Requested State have decided to refrain from prosecuting the person sought for the acts for which extradition is requested or to discontinue any criminal proceedings which have been initiated against the person sought for those acts."). See also Extradition Treaty with Sri Lanka, art. 5, entered into force Jan. 12, 2001, S. Treaty Doc. 106-34; Extradition Treaty with Trinidad and Tobago, art. 5, entered into force Nov. 29, 1999, S. Treaty Doc. 105-21; Extradition Treaty with the Bahamas, art. 5, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Jordanian Extradition Treaty, art. 5, entered into force July 29, 1995, S. Treaty Doc. 104-3. Some include language to avoid confusion over whether an American dismissal with prejudice is the same as an acquittal, Hungarian Extradition Treaty, art. 5(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5 ("Extradition shall not be granted when the person sought has been convicted or acquitted or the case dismissed by court order with finding and final effect in the Requested State for the offense for which extradition is requested").

E.g., Argentine Extradition Treaty, art. 7, entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866 ; French Extradition Treaty, art. 9(1), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13.

E.g., Austrian Extradition Treaty, art. 7, entered into force Jan. 1, 2000, S. Treaty Doc. 105-50, TIAS 12916; Indian Extradition Treaty, art. 7, entered into force July 21, 1999, S. Treaty Doc. 105-30, TIAS 12873; Extradition Treaty with the Bahamas, art. 6, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Hungarian Extradition Treaty, art. 6, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Italian Extradition Treaty, art. VII, entered into force Sept. 24, 1984, 35 U.S.T. 3023.

E.g., Extradition Treaty with Uruguay, art. 5, ¶ 2, entered into force April 11, 1984, 35 U.S.T. 3197.

Restatement, supra footnote 1 §476, Comment e. See also Bassiouni, supra footnote 4, at 769-73; Abbell & Ristau, supra footnote 3, at 94-6, 187-90, 289-90.

E.g., Extradition Treaty with the United Kingdom, art. 6, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("The decision by the Requested State whether to grant the request for extradition shall be made without regard to any state of limitations in either State."); Jordanian Extradition Treaty, art. 6, entered into force July 29, 1995, S. Treaty Doc. 104-3 ("The decision whether to grant the request for extradition shall be made without regard to provisions of the law of either Contracting State concerning lapse of time"); Extradition Treaty with Belize, art. 8, entered into force Mar. 27, 2001, S. Treaty Doc. 106-38; Extradition Treaty with Cyprus, art. 7, entered into force Sept. 14, 1999, S. Treaty Doc.105-16.

U.S.Const. Amends. V, XIV; United States v. Lovasco, 431 U.S. 783, 789-90 (1977); United States v. MacDonald, 456 U.S. 1, 8 (1982); United States v. Gregory, 322 F.3d 1157, 1165 (9^th Cir. 2002); United States v. Farmer, 312 F.3d 933, 936 (8^th Cir. 2003).

U.S.Const. Amends. VI, XIV; Doggett v. United States, 505 U.S. 647, 651 (1992); Barker v. Wingo, 407 U.S. 514, 530 (1972); United States v. White Horse, 316 F.3d 769, 774 (8^th Cir. 2003); United States v. Cope, 312 F.3d 757, 777-78 (6^th Cir. 2003).

18 U.S.C. § 3195 ("All costs or expenses incurred in any extradition proceeding in apprehending, securing, and transmitting a fugitive shall be paid by the demanding authority. All witness fees and costs of every nature in cases of international extradition, including the fees of the magistrate, shall be certified by the judge or magistrate before whom the hearing shall take place to the Secretary of State of the United States, and the same shall be paid out of appropriations to defray the expenses of the judiciary or the Department of Justice as the case may be. The Attorney General shall certify to the Secretary of State the amounts to be paid to the United States on account of said fees and costs in extradition cases by the foreign government requesting the extradition, and the Secretary of State shall cause said amounts to be collected and transmitted to the Attorney General for deposit in the Treasury of the United States").

Extradition Treaty with the United Kingdom, art. 20(2)-(3), entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("2. The Requesting State shall bear the expenses related to the translation of documents and transportation of the person surrendered. The Requested State shall pay all other expenses incurred in that State by reason of the extradition proceedings. 3. Neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons sought under this Treaty"); Hungarian Extradition Treaty, art. 20(2)-(3), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Indian Extradition Treaty, art. 20(2)-(3), entered into force July 21, 1999, S. Treaty Doc. 105-30, TIAS 12873; French Extradition Treaty, art. 22(2), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13; Jordanian Extradition Treaty, art. 19(2)-(3), entered into force July 29, 1995, S. Treaty Doc. 104-3; Costa Rican Extradition Treaty, arts. 20-21, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Extradition Treaty with Thailand, art. 18, entered into force May 17, 1991, S. Treaty Doc. 98-16; Jamaican Extradition Treaty, art. XVII, entered into force July 7, 1991, S. Treaty Doc. 98-18 (also providing that requesting State may be subject to a claim due to special expenses or concerning third party interests in transferred property); Extradition Treaty with the Bahamas, art. 18(2)-(3), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Italian Extradition Treaty, art. XXI, entered into force Sept. 24, 1984, 35 U.S.T. 3023. But see Bolivian Extradition Treaty, art. XVI(3)-(4), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 ("The Requesting State shall bear expenses related to the translation of documents and the transportation of the person sought….Neither Party shall make any pecuniary claim against the other arising from the arrest, detention, custody, examination, or surrender of a person sought under this Treaty")(note absence of language as to the responsibility for cost other than transportation or translation); Extradition Treaty with Uruguay, art. 18, entered into force Apr. 11, 1984, 35 U.S.T. 3197.

Extradition Treaty with the United Kingdom, art. 20(1), entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("The Requested State shall advise, assist, and appear on behalf of, the Requesting State in any proceedings in the courts of the Requested State arising out of a request for extradition or make all necessary arrangements for the same."); Jordanian Extradition Treaty, art. 19(1), entered into force July 29, 1995, S. Treaty Doc. 104-3 ("The Requested State shall advise, assist, appear in court on behalf of the Requesting State, and represent the interests of the Requesting State, in any proceedings arising out of a request for extradition"); Extradition Treaty with Luxembourg, art. 20(1), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804; Extradition Treaty with Sri Lanka, art. 19(1), entered into force Jan. 12, 2001, S. Treaty Doc.106-34; Hungarian Extradition Treaty, art. 20(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with the Bahamas, art. 18(1), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Costa Rican Extradition Treaty, art. 20, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Bolivian Extradition Treaty, art. XVI(1)-(2), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with Uruguay, art. 18, entered into force Apr. 11, 1984, 35 U.S.T. 3197; Italian Extradition Treaty, art. XX, entered into force Sept. 24, 1984, 35 U.S.T. 3023; Jamaican Extradition Treaty, art. XVII(2), entered into force July 7, 1991, S. Treaty Doc. 98-18 ("The Requested State shall also provide for the representation of the Requesting State in any proceedings arising in the Requested State out of a request for extradition"); Extradition Treaty with Thailand, art. 18(2), entered into force May 17, 1991, S. Treaty Doc. 98-16.

The typical clause provides that:

All articles, instruments, objects of value, documents, and other evidence relating to the offense may be seized and, upon granting of extradition, surrendered to the requesting State. The property mentioned in this Article may be surrendered even when extradition cannot be granted or effected due to the death, disappearance, or escape of the person sought. The rights of third parties in such property shall be duly respected.

Costa Rican Extradition Treaty, art. 18, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17. See also Bulgarian Extradition Treaty, art. 15, entered into force May 21, 2009, S. Treaty Doc. 110-12; South African Extradition Treaty, art.16, entered into force June 25, 2001, S. Treaty Doc. 106-24; Extradition Treaty with Trinidad and Tobago, art. 13, entered into force Nov. 29, 1999, S. Treaty Doc. 105-21; Jordanian Extradition Treaty, art. 15, entered into force July 29, 1995, S. Treaty Doc. 104-3; Hungarian Extradition Treaty, art. 16(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with the Bahamas, art. 16, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Bolivian Extradition Treaty, art. XIV, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with Uruguay, art. 16, entered into force April 11, 1984, 35 U.S.T. 3197; Italian Extradition Treaty, art. XVIII, entered into force Sept. 24, 1984, 35 U.S.T. 3023; Jamaican Extradition Treaty, art. XVI, entered into force July 7, 1991, S. Treaty Doc. 98-18; Extradition Treaty with Thailand, art. 16, entered into force May 17, 1991, S. Treaty Doc. 98-16.

E.g., Extradition Treaty with the Bahamas, art. 17, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 ("(1) Either Contracting State may authorize transportation through its territory of a person surrendered to the other State by a third State. A request for transit shall be made through the diplomatic channel and shall contain a description of the person being transported and a brief statement of the facts of the case. (2) No authorization is required where air transportation is used and no landing is scheduled on the territory of the Contracting State. If an unscheduled landing occurs on the territory of the other Contracting State, transit shall be subject to paragraph (1) of this Article. That Contracting State shall detain the person to be transported until the request for transit is received and the transit is effected, so long as the request is received within 96 hours of the unscheduled landing"). See also Extradition Agreement with the European Union, art. 12(1)-(2), entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (authorizing transit of fugitive through territory of EU Member State or U.S. in the absence of governing provision in an existing bilateral agreement between an EU Member State and the United States); Extradition Treaty with the United Kingdom, art. 19, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23; Argentine Extradition Treaty, art. 18, entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866; Korean Extradition Treaty, art. 17, entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962; Costa Rican Extradition Treaty, art. 19, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jordanian Extradition Treaty, art. 18, entered into force July 29, 1995, S. Treaty Doc. 104-3; Hungarian Extradition Treaty, art. 19, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Bolivian Extradition Treaty, art. XV, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with Thailand, art. 17, entered into force May 17, 1991, S. Treaty Doc. 98-16; Extradition Treaty with Uruguay, art. 17,, entered into force Apr. 11, 1984, 35 U.S.T. 3197; Italian Extradition Treaty, art. XIX, entered into force Sept. 24, 1984, 35 U.S.T. 3023.

U.S. Const. art. III, §2.

Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792); Muskrat v. United States, 219 U.S. 346 (1911); Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002 (1924).

Lobue v. Christopher, 893 F.Supp. 65 (D.D.C. 1995), vac'd on juris. grounds, 82 F.3d 1081 (D.C.Cir. 1996).

In re Requested Extradition of Artt, 158 F.3d 462, 469-70 (9^th Cir. 1998), opinion withdrawn after grant of rehearing, In re Artt, 248 F.3d 1197 (9^th Cir. 2001); LoDuca v. United States, 93 F.3d 1100, 1105-10 (2d Cir. 1996); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7^th Cir. 1997). See also In re Extradition of Seong-I, 346 F.Supp.2d 1149, 1154-156 (D.N.M. 2004); Noel v. United States, 12 F.Supp.2d 1300, 1304-305 (M.D.Fla. 1998); In re Extradition of Lehming, 951 F.Supp. 505, 508-9 (D.Del. 1996); Sandhu v. Bransom, 932 F.Supp. 822, 826 (N.D.Tex. 1996); Werner v. Hickey, 920 F.Supp. 1257, 1259 (M.D.Cal. 1996); Allison Marston, Comment, Innocence Abroad: An Analysis of the Constitutionality of International Extradition, 33 Stan. J. Int'l L. 343 (1997).

Vo v. Benov, 447 F.3d 1235, 1237 (9^th Cir. 2006). "[T]hrough the diplomatic channel" seems to be the phrase favored most recently. See, e.g., Bulgarian Extradition Treaty, art. 10, entered into force May 21, 2009, S. Treaty Doc. 110-12 ("Requests for extradition and supporting documents shall be transmitted through the diplomatic channel…."); Extradition Treaty with the United Kingdom, art. 8(1), entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 ("All requests for extradition shall be made through the diplomatic channel"); Hungarian Extradition Treaty, art. 8(1), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Polish Extradition Treaty, art. 9(1), entered into force Sept. 17, 1999, S. Treaty Doc. 105-14; Korean Extradition Treaty, art. 8(1), entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962; Extradition Treaty with the Bahamas, art. 8(1), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Jordanian Extradition Treaty, art. 8(1), entered into force July 29, 1995, S. Treaty Doc. 104-3; Bolivian Extradition Treaty, art. VI(1), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Italian Extradition Treaty, art. X(1), entered into force Sept. 24, 1984, 35 U.S.T. 3023; Extradition Treaty with Uruguay, art. 10, ¶1, entered into force April 11, 1984, 35 U.S.T. 3197.

Jordanian Extradition Treaty, art. 8(2)-(4), entered into force July 29, 1995, S. Treaty Doc. 104-3 ("2. All requests shall contain: (a) documents, statements, photographs (if possible), or other types of information which describe the identity, nationality, and probable location of the person sought; (b) information describing the facts of the offense and the procedural history of the case; (c) the text of the law describing the essential elements of the offense for which extradition is requested; (d) the text of the law prescribing the punishment for the offense; and (e) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable.; 3. A request for extradition of a person who is sought for prosecution shall also contain: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging documents; and (c) such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested. 4. A request for extradition relating to a person who has been found guilty of the offense for which extradition is sought shall also contain: (a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been found guilty; (b) information establishing that the person sought is the person to whom the finding of guilt refers; (c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out; and (d) in the case of a person who has been found guilty in absentia, the documents required in paragraph 3"). See also South African Extradition Treaty, art. 9(2)-(4), entered into force June 25, 2001; S. Treaty Doc. 106-24; Extradition Treaty with Luxembourg, art. 8(2)-(4), entered into force Feb. 1, 2002, S. Treaty Doc. 105-10, TIAS 12804; Hungarian Extradition Treaty, art. 8(2)-(4), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with the Bahamas, art. 8(2)-(4), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Bolivian Extradition Treaty, art. VI(2)-(6), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22.

Abbell, supra footnote 21, at §3-3(7).

18 U.S.C. § 3184 provides in part that:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b)[relating to the extradition from the United States of foreign nationals charged with, or convicted of, crimes of violence committed against Americans overseas, without reference to an extradition treaty], any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention ... issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered.

See also Prasoprat v. Benov, 421 F.3d 1009, 1012 (9^th Cir. 2005). See generally Abbell & Ristau, supra footnote 3, at 159-71. The requesting nation is usually represented in federal court by an Assistant United States Attorney or other Justice Department attorney. Abbell, supra footnote 21, at §3-3(9); Jacques Semmelman & Karen Snell, Defending the International Extradition Case, The Champion 20, 21 (June, 2006).

United States Attorneys Manual (USAM) § 9-15.700, available on Mar. 17, 2010, at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm.

Abbell, supra footnote 21, at §3-3(7).

E.g., Extradition Treaty with Thailand, art. 10(1)-(2), entered into force May 17, 1991, S. Treaty Doc. 98-16 ("In case of urgency, either Contracting Party may request the provisional arrest of any accused or convicted person. Application for provisional arrest shall be made through the diplomatic channel or directly between the Department of Justice ... and the Ministry of Interior in Thailand.... (2) The application shall contain: a description of the person sought; the location of that person, if known; a brief statement of the facts of the case including, if possible, the time and location of the offense; a statement of the existence of a warrant of arrest or a judgment of conviction against that person ... and a statement that a request for extradition of the person will follow"); Extradition Treaty with Estonia, art. 12, entered into force Feb. 1, 2010, S. Treaty Doc. 109-16;Protocol Amending U.S.-Israel Extradition Treaty, art. 7, entered into force Jan. 10, 2007, S. Treaty Doc.109-3 (replacing art. 11 of earlier treaty). Such provisions usually also call for the release of the fugitive upon the failure to submit a formal request within a designated period of time. E.g., Extradition Treaty with Thailand, supra, art. 10(4) (60 days); Extradition Treaty with the United Kingdom, art. 12(4), entered into force Apr. 26, 2007, S. Treaty Doc. 108-23 (discretionary release after 60 days); Argentine Extradition Treaty, art. 11(4), entered into force June 15, 2000, S. Treaty Doc. 105-18, TIAS 12866 (60 days); Korean Extradition Treaty, art. 10(4), entered into force Dec. 20, 1999, S. Treaty Doc. 106-2, TIAS 12962 (two months); Hungarian Extradition Treaty, art. 11, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5 (60 days); Extradition Treaty with the Bahamas, art. 10(4), entered into force Sept. 22, 1994, S. Treaty Doc. 102-17 (60 days) ; Jordanian Extradition Treaty, art. 11(4), entered into force July 29, 1995, S. Treaty Doc. 104-3 (60 days with a possible 30-day extension); Bolivian Extradition Treaty, art. VIII(4), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22 (60 days); Italian Extradition Treaty, art. XII(4), entered into force Sept. 24, 1984, 35 U.S.T. 3023 (45 days); Extradition Treaty with Uruguay, art. 11, ¶1,entered into force Apr. 11, 1984, 35 U.S.T. 3197 (45 days).

Wright v. Henkel, 190 U.S. 40, 61-3 (1903)(no bail following certification absent special circumstances); United States v. Kin-Hong, 83 F.3d 523, 524-25 (1^st Cir. 1996) (no bail during pendency of extradition proceedings absent special circumstances); In re Requested Extradition of Kirby, 106 F.3d 855, 863 (9^th Cir. 1996) (release on bail pending the completion of extradition hearings requires special circumstances); Borodin v. Ashcroft, 136 F.Supp.2d 125, 128-33 (E.D.N.Y. 2001); Hababou v. Albright, 82 F.Supp.2d 347, 349-52 (D.N.J. 2000). See also In re Extradition of Sacirbegovic, 280 F.Supp.2d 81, 83 (S.D.N.Y. 2003); In re Extradition of Molnar, 182 F.Supp.2d 684, 686-89 (N.D.Ill. 2002)(suggesting it may be easier to demonstrate special circumstances following provisional arrest than after a formal request has been presented); Parretti v. United States, 122 F.3d 758, 786 (9^th Cir. 1997) (suggesting that the strong presumption against bail be abandoned), opinion withdrawn upon the flight of the respondent, 143 F.3d 508 (9^th Cir. 1998); Nathaniel A. Persily, Note, International Extradition and the Right to Bail, 34 Stan. J. Int'l L. 407 (1998).

See, e.g., Costa Rican Extradition Treaty, art. 12, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17 ("A person detained pursuant to the Treaty shall not be released until the extradition request has been finally decided, unless such release is required under the extradition law of the Requested State or unless this Treaty provides for such release").

In re Extradition of Valdez-Mainero, 3 F.Supp.2d 1112, 1114-115 (S.D.Cal. 1998). See also Abbell & Ristau, supra footnote 3, at 172-241. Shorthand versions appear in Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000)("The judicial officer's inquiry is confined to the following: whether a valid treaty exists, whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof"); and Vo v. Benov, 447 F.3d 1235, 1237 (9^th Cir. 2006)("The authority of a magistrate judge serving as an extradition judicial officer is thus limited to determining an individual's eligibility to be extradited, which he does by ascertaining whether a crime is an extraditable offense under the relevant treaty and whether probable cause exists to sustain the charge"). See also United States v. Lin Kin-Hong, 110 F.3d 103, 110 (1^st Cir. 1997).

LoDuca v. United States, 93 F.3d 1100, 1104 (2d Cir. 1996)(internal quotation marks omitted)(quoting Benson v. McMahon, 127 U.S. 457, 463 (1888)); Collins v. Loisel, 259 U.S. 309, 316 (1922); and Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990). See also Ordinola v. Hackman, 478 F.3d 588, 606 (4^th Cir. 2007); Kastnerova v. United States, 365 F.3d 980, 987 (11^th Cir. 2004); DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7^th Cir. 1997); In re Extradition of Molnar, 202 F.Supp.2d 782, 786 (N.D.Ill. 2002).

Barapind v. Enomoto, 400 F.3d 744, 749 (9^th Cir. 2005); Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006). Additionally, a few courts have ruled that the United States is obligated to turn over any exculpatory evidence in its possession that would undercut a probable cause finding that the accused committed the offense for which he was charged in the requesting State. See Demjanjuk v. Petrovksy, 10 F.3d 338, 353 (6^th Cir.1993), cert. denied, 513 U.S. 914 (1994); In re Extradition of Drayer, 190 F.3d 410, 415 (6^th Cir.1999); In re Zhenly Ye Gon, Misc. No. 08-596(JMF), 2010 WL 169468 (D.D.C., Jan. 8, 2010).

DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7^th Cir. 1997)(legal custodian defense to kidnaping charge)(citing Charlton v. Kelly, 229 U.S. 447 (1913), and Collins v. Loisel, 259 U.S. 309 (1922)); Lopez-Smith v. Hood, 121 F.3d 1322, 1324 (9^th Cir. 1997)(due process bar to criminal trial of incompetent defendant); In re Extradition of Schweidenback, 3 F.Supp.2d 113, 117 (D.Mass. 1998)(evidence related to a defense is excludable); In re Extradition of Diaz Medina, 210 F.Supp.2d 813, 819 (N.D.Tex. 2002).

Haxhiaj v. Hackman, 528 F.3d 282, 292 (4^th Cir. 2008); Afanasjev v. Hurlburt, 418 F.3d 1159, 1164-165 (11^th Cir. 2005); United States v. Kin-Hong, 110 F.3d 103, 120 (1^st Cir. 1997); Then v. Melendez, 92 F.3d 851, 855 (9^th Cir. 1996); In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 932 (N.D.Ill. 2002); F.R.Crim.P. 54(b)(5), F.R.Evid. 1101(d)(3). Evidence offered to support an extradition request need only be authenticated. Barapind v. Enomoto, 400 F.3d 744, 748 (9^th Cir. 2005); 18 U.S.C. § 3190 ("Depositions, warrants, or other papers or copies thereof offered in evidence upon the hearing of any extradition case shall be received and admitted as evidence on such hearing for all the purposes of such hearing if they shall be properly and legally authenticated so as to entitle them to be received for similar purposes by the tribunals of the foreign country from which the accused party shall have escaped, and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the same, so offered, are authenticated in the manner required."); 22 C.F.R. § 92.40 (foreign extradition requests are authenticated by the U.S. chiefs of mission).

Hoxha v. Levi, 465 F.3d 554, (3d Cir. 2006); Afanasjev v. Hurlburt, 418 F.3d 1159, 1165 (11^th Cir. 2005); United States v. Kin-Hong, 110 F.3d 103, 120 (1^st Cir. 1997)(citing Collins v. Loisel, 259 U.S. 309, 317 (1922)); In re Extradition of Platko, 213 F.Supp.2d 1229, 1237 (S.D.Cal. 2002).

In re Extradition of Powell, 4 F.Supp.2d 945, 951-52 (S.D.Cal. 1998); Valenzuela v. United States, 286 F.3d 1223, 1229 (11^th Cir. 2002)(noting that even compelled statements that incriminate the fugitive under the laws of the requesting country would be admissible in an extradition hearing). Cf. United States v. Balsys, 524 U.S. 666 (1998)(the Fifth Amendment does not prohibit compelled statements simply because they are incriminating under the laws of a foreign nation).

Yapp v. Reno, 26 F.3d 1562, 1565 (11^th Cir. 1994); McMaster v. United States, 9 F.3d 47, 49 (8^th Cir. 1993); Martin v. Warden, 993 F.2d 824, 829 (11^th Cir. 1993); Bovio v. United States, 989 F.2d 255, 260 (7^th Cir. 1993); Sabatier v. Daborwski, 586 F.2d 866, 869 (1^st Cir. 1978); Jhirad v. Ferrandina, 536 F.2d 478, 485 n.9 (2d Cir. 1976); In re Extradition of Fulgencio Garcia, 188 F.Supp.2d 921, 932 (N.D.Ill. 2002)(internal citations omitted)("the Sixth Amendment right to a speedy trial and the Fifth Amendment right against undue delay are inapplicable to an extradition. Likewise, the Sixth Amendment right to effective counsel does not apply to extradition proceedings. The Supreme Court has found no constitutional infirmity where those subject to extradition proceedings have been denied an opportunity to confront their accusers. Finally, the Fifth Amendment guarantee against double jeopardy and the right to a Miranda warning are inapplicable to an extradition proceeding").

DeSilva v. DiLeonardi, 181 F.3d 865, 868-69 (7^th Cir. 1999).

Valenzuela v. United States, 286 F.3d 1223, 1229-230 (11^th Cir. 2002).

In re Extradition of Cheung, 968 F.Supp. 791, 798-99 (D.Conn, 1997)("The rule of non-inquiry is well-established in the circuits and has been applied in extraditions to a panoply of nations. Martin v. Warden, 993 F.2d 824 (11^th Cir. 1993)(Canada); Koskotas v. Rocke, 931 F.2d 169 (1stCir. 1991)(Greece); Quinn v. Robinson, 783 F.2d 776 (9^th Cir. 1986 (U.K.); Eain v. Wilkes, 641 F.2d 504 (7^th Cir. 1981)(Israel); Escobedo v. United States, 623 F.2d 1098 (5^th Cir. 1980)(Mexico) ..."). See also Hoxha v. Levi, 465 F.3d 554, (3d Cir. 2006); Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9^th Cir. 1997); United States v. Kin-Hong, 110 F.3d 103, 110 (1^st Cir. 1997); United States v. Smyth, 61 F.3d 711, 714 (9^th Cir. 1995)(explaining the exception in the U.K. Supplementary Treaty); Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L. Rev. 1198 (1991). Gallina v. Fraser, 278 F.3d 77 (2d Cir. 1960), declined to depart from the rule but observed that under some circumstance an extraditee might face "procedures or punishments so antipathetic to a federal court's sense of decency as to require re-examination" of the question. The courts appear to have rarely if ever encountered such procedures or punishments. In re Extradition of Marinero, 990 F.Supp. 1208, 1230 (S.D.Cal. 1997)("There is no legal support for a judicially created 'humanitarian exception' [of the type foreseen in Gallina] in an extradition proceeding"); In re Extradition of Sandhu, 886 F.Supp. 318, 322 (S.D.N.Y. 1993)("The 'Gallina exception' to the rule of non-inquiry has yet to be applied"); Corneljo-Barreto v. Seifert, 218 F.3d 1004, 1010 (9^th Cir. 2000)("Our research failed to identify any case in which this [humanitarian exception] has been applied...."). In the 2008 case of Munaf v. Geren, 128 S. Ct. 2207, the Supreme Court declined to grant habeas relief to two U.S. citizens challenging their proposed surrender to the Iraqi government by U.S. military authorities in Iraq, despite arguments that they would likely face torture. Citing several prior cases involving the rule of non-inquiry, the Court stated that "the present context that concern is to be addressed by the political branches, not the judiciary." Id. at 2225. The Court noted the stated U.S. policy not to transfer persons to countries where torture was likely to result, and distinguished the case before it from "a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway." Id. at 2226.

Martin v. Warden, 993 F.2d 824, 829-30 (11^th Cir. 1993) (quoting Neely v. Henkel, 180 U.S. 109, 123 (1901)). See generally Mironescu v. Costner, 480 F.3d 664, 668-73 (4^th Cir. 2007) (discussing origins and development of rule of non-inquiry).

For example, unique irritants in the diplomatic relations between the United States and Great Britain stimulated the 1985 signing of a supplementary extradition treaty with singular characteristics. British Supplementary Extradition Treaty, entered into force Dec. 23, 1986, TIAS 12050. The Ninth Circuit described this supplementary treaty as "alter[ing] the extradition procedures in force under the 1977 [U.S.-U.K.] Treaty in three significant ways: (1) it limits the scope of the political offense exception; (2) it authorizes a degree of judicial inquiry into the factors motivating a request for extradition; and (3) it creates a limited right to appeal an extradition decision." In re Extradition of Artt, 158 F.3d at 465 (9^th Cir. 1998), redesignated In re Artt, 248 F.3d 1197 (9^th Cir. 2001)). See also British Supplementary Extradition Treaty, supra, at arts. 1, 3. The United States and the United Kingdom subsequently negotiated a more contemporary replacement, which entered into force in 2007, that transfers responsibility for determining whether an extradition request is politically motivated from the courts to the Executive. Extradition Treaty with the United Kingdom, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23. For a more extensive discussion, see CRS Report RL32096, Extradition Between the United States and Great Britain: The 2003 Treaty, by [author name scrubbed], available in abbreviated form as CRS Report RS21633, Extradition Between the United States and Great Britain: A Sketch of the 2003 Treaty, by [author name scrubbed] (pdf).

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 3, entered into force for U.S. on Oct. 21, 1994, S. Treaty Doc. 100-20.

P.L. 105-277, § 2242; 112 Stat. 2681-822 (1998)

See, e.g., Mironescu v. Costner, 480 F.3d 664, 673 (4^th Cir. 2007) (holding that common law rule of non-inquiry did not bar consideration of CAT-based claims in habeas proceedings, but still finding that consideration of such claims had nonetheless been barred by statute); Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9^th Cir. 2000) (CAT-implementing legislation superceded common law rule of non-inquiry, permitting habeas review of petitioner's claim that he would face torture if extradited). But see Sandhu v. Burke, 2000 WL 191707 (S.D.N.Y. Feb. 10, 2000) (unpublished) (finding that rule of non-inquiry precluded consideration of petitioner's CAT-based claims, as CAT was ratified under the understanding that it was non-self executing and FARRA did not authorize judicial enforcement of CAT's provisions).

FARRA asserts that its declaration of policy and the accompanying enforcement responsibilities of federal agencies are not intended to create a basis for judicial review for CAT-based claims, except as part of the review of a final order of removal under the Immigration and Nationality Act. P.L. 105-277, § 2242(d). Whether or not this provision is intended to preclude judicial review of CAT-based claims in non-immigration proceedings is the subject of conflicting judicial opinion. Compare Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (wartime detainees held at Guantanamo could not bring CAT- or FARRA-based challenges to their proposed military transfer to a foreign country, as Congress had precluded judicial review of such claims except as part of a final order of immigration removal); Mironescu v. Costner, 480 F.3d 664, 673 (4^th Cir. 2007) (court could not review petitioner's CAT-based challenged to his extradition, as the language of FARRA "plainly conveys that although courts may consider or review CAT or FARR[A]…claims as part of their review of a final removal order, they are otherwise precluded from considering or reviewing such claims"); with Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9^th Cir.2000), rejected by 379 F.3d 1075 (9^th Cir. 2004), latter opinion vacated by 389 F.3d 1307 (9^th Cir. 2004) (en banc) (although FARRA precludes a facial challenge of CAT-implementing regulations promulgated by State Department, individual subject to an extradition order may seek judicial review based on the Administrative Procedure Act (APA), when his surrender would be contrary to U.S. laws and regulations implementing CAT). In 2008, the Supreme Court appeared to invoke the rule on non-inquiry in consideration of a habeas petition by two U.S. citizens held by U.S. military authorities in Iraq who claimed that their surrender to the Iraqi government would likely result in their torture. Munaf v. Geren, 128 S. Ct. 2207, 2225-2226 (2008). The Court noted that the habeas petitions did not assert claims under FARRA, but suggested in dicta that several issues would have to be addressed in the event that a FARRA claim was raised on remand, including the possibility that FARRA-based claims "may be limited to certain immigration proceedings." Id. at 2226, n. 6 (2008). On remand, the district court considered an amended habeas challenge by one of the petitioners that invoked FARRA as barring his surrender. The court held that FARRA limited "judicial review to claims challenging a final order of removal by immigration authorities-which is not the case here-…[and therefore] does not provide the petitioner a grounds for habeas relief." Omar v. Geren, 2009 WL 3069716, at *1 (D.D.C., Sept. 28, 2009).

Gill v. Imundi, 747 F.Supp. 1028, 1039 (S.D.N.Y. 1990) (citing In re Doherty, 786 F.2d 491, 503 (2d Cir. 1986)). See also In re Extradition of Massieu, 897 F.Supp. 176, 179 (D.N.J. 1995); Hooker v. Klein, 573 F.2d 1360, 1365 (9^th Cir. 1978) (citing, inter alia, Collins v. Loisel, 262 U.S. 426 (1923)); Abbell & Ristau, supra footnote 3, at 252-54.

Ordinola v. Hackman, 478 F.3d 588, 598 (4^th Cir. 2007); Vo v. Benov, 447 F.3d 1235, 1240 (9^th Cir. 2006); Afanasjev v. Hurlburt, 418 F.3d 1159, 1163 (11^th Cir. 2005); Sidali v. I.N.S., 107 F.3d 191, 195 (3d Cir. 1997) (citing Collins v. Miller, 252 U.S. 364, 369 (1920)); Abbell & Ristau, supra footnote 3, at 243-52.

Ordinola v. Hackman, 478 F.3d 588, 598 (4^th Cir. 2007)(quoting Fernandez v. Phillips, 268 U.S. 311, 312 (1925)). See also Valenzuela v. United States, 286 F.3d 1223, 1229 (11^th Cir. 2002); Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009-10 (9^th Cir. 2000); DeSilva v. DiLeonardi, 125 F.3d 1110, 1112 (7^th Cir. 1997); Sidali v. I.N.S., 107 F.3d 191, 195 (3d Cir. 1997); Smith v. United States, 82 F.3d 964, 965 (10^th Cir. 1996).

United States v. Kin-Hong, 110 F.3d 103, 116-17 (1^st Cir. 1997) (citing Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Sidali v. I.N.S., 107 F.3d 191, 199-200 (3d Cir. 1997); Then v. Melendez, 92 F.3d 851, 854 (9^th Cir. 1996); Valenzuela v. United States, 286 F.3d 1223, 1229 (11^th Cir. 2002)). See also Noriega v. Pastrana, 564 F.3d 1290, 1295 (11^th Cir. 2009), cert. denied, 130 S.Ct. 1002 (2010).

United States v. Kin-Hong, 110 F.3d 103, 109 (1^st Cir. 1997)("It is then within the Secretary of State's sole discretion to determine whether or not the relator should actually be extradited. See 18 U.S.C. § 3186 ('The Secretary of State may order the person committed under section 3184 ... of this title to be delivered to any authorized agent of such foreign government ... '"); Note, Executive Discretion in Extradition, 62 Columbia Law Review 1313 (1962).

E.g., Extradition Treaty with Thailand, art. 11(3), entered into force May 17, 1991, S. Treaty Doc. 98-16 ("If the extradition has been granted, surrender of the person sought shall take place within such time as may be prescribed by the laws of the Requested State. The competent authorities of the Contracting Parties shall agree on the time and place of the surrender of the person sought. If, however, that person is not removed from the territory of the Requested State within the prescribed time, that person may be set at liberty and the Requested State may subsequently refuse extradition for the same offense"); Bulgarian Extradition Treaty, art. 12, entered into force May 21, 2009, S. Treaty Doc. 110-12; Argentine Extradition Treaty, art. 12, entered into force Jun. 15, 2000, S. Treaty Doc. 105-18, TIAS 12866; Austrian Extradition Treaty, art. 14(2)-(4), entered into force Jan.1 , 2000, S. Treaty Doc. 105-50, TIAS 12916; Hungarian Extradition Treaty, art. 13, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Costa Rican Extradition Treaty, art. 13, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jamaican Extradition Treaty, art. XI, entered into force July 7, 1991, S. Treaty Doc. 98-18; Extradition Treaty with the Bahamas, art. 11, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Bolivian Extradition Treaty, art. IX, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Jordanian Extradition Treaty, art. 12, entered into force July 29, 1995, S. Treaty Doc. 104-3; Italian Extradition Treaty, art. XIII, entered into force Sept. 24, 1984, 35 U.S.T. 3023.

18 U.S.C. § 3186 ("The Secretary of State may order the person committed under sections 3184 or 3185 of this title to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged. Such agent may hold such person in custody, and take him to the territory of such foreign government, pursuant to such treaty. A person so accused who escapes may be retaken in the same manner as any person accused of any offense").

18 U.S.C. § 3188 ("Whenever any person who is committed for rendition to a foreign government to remain until delivered up in pursuance of a requisition, is not so delivered up and conveyed out of the United States within two calendar months after such commitment, over and above the time actually required to convey the prisoner from the jail to which he was committed, by the readiest way, out of the United States, any judge of the United States, or of any State, upon application made to him by or on behalf of the person so committed, and upon proof made to him that reasonable notice of the intention to make such application has been given to the Secretary of State, may order the person so committed to be discharged out of custody, unless sufficient cause is shown to such judge why such discharge ought not to be ordered").

E.g., Extradition Agreement with the European Union, art. 10, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (when the United States or an EU Member State receives competing extradition request from the other State and a third country, the requested State shall consider "all relevant factors" when determining which request to honor, including but not limited to "(a) whether the requests were made pursuant to treaty; (b) the places where each of the offenses were committed; (c) the respective interests of the requesting States; (d) the seriousness of the offenses; (e) the nationality of the victim; (f) the possibility of any subsequent extradition between the requesting States; and (g) the chronological order in which the requests were received from the requesting States" ); Extradition Treaty with Trinidad and Tobago, art. 12, entered into force Nov. 29, 1999, S. Treaty Doc. 105-21; Extradition Treaty with Thailand, art. 13, entered into force May 17, 1991, S. Treaty Doc. 98-16; Costa Rican Extradition Treaty, art. 15, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jamaican Extradition Treaty, art. XIII, entered into force July 7, 1991, S. Treaty Doc. 98-18; Extradition Treaty with the Uruguay, art. 14, entered into force Apr. 11, 1984, 35 U.S.T. 3197; Bolivian Extradition Treaty, art. X, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Jordanian Extradition Treaty, art. 14, entered into force July 29, 1995, S. Treaty Doc. 104-3.

E.g., Jamaican Extradition Treaty, art. XII, entered into force July 7, 1991, S. Treaty Doc. 98-18 ("If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the Requested State for a different offence, the Requesting State shall, unless its laws otherwise provide, defer the surrender of the person sought until the conclusion of the proceedings against that person or the full execution of any punishment that may be or may have been imposed"); Extradition Treaty with Sri Lanka, art. 13(2), entered into force Jan. 12, 2001, S. Treaty Doc. 106-34; French Extradition Treaty, art. 16(2), entered into force Feb. 1, 2002, S. Treaty Doc. 105-13; Hungarian Extradition Treaty, art. 14, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with Thailand, art. 12, entered into force May 17, 1991, S. Treaty Doc. 98-16; Costa Rican Extradition Treaty, art. 14, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Bolivian Extradition Treaty, art. XI, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Jordanian Extradition Treaty, art. 13, entered into force July 29, 1995, S. Treaty Doc. 104-3; Italian Extradition Treaty, art. XIV, entered into force Sept. 24, 1984, 35 U.S.T. 3023.

E.g., Extradition Agreement with the European Union, art. 9, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (when preexisting agreement between EU Member State and United States lacks similar provision, allowing requested State to surrender the relator with the understanding that he will be kept in custody and returned under circumstances and conditions agreed upon by the two States); Peruvian Extradition Treaty, art. X(2), entered into force Aug. 25, 2003, S. Treaty Doc. 107-6; Second Protocol Amending Extradition Treaty with Canada, art. 1, entered into force Apr. 30, 2003, S. Treaty Doc. 107-11 (adding art. 7 bis to earlier treaty; Protocol Amending Extradition Treaty with Mexico, art. 1, entered into force May 25, 2001, S. Treaty Doc. 105-46, TIAS 12897 (adding art. 15(2)-(3) to earlier treaty).

Restatement, supra footnote 1, § 478, Comment e ("Requests for extradition of persons from foreign states may be made only by the Department of State. If the offense with which the person is charged or of which he has been convicted is one under federal law, the application for extradition must be submitted by the prosecutor to the Department of Justice, which will review the documents and, if satisfied of their sufficiency, transmit them to the Department of State for forwarding to the requested state. If the offense is one under [the law of any of the states of the United States], the application must be submitted by or with the endorsement of the Governor of the State, and must be reviewed by the Department of Justice before transmission to the Department of State. If the State Department is satisfied that the conditions for extradition under the applicable treaty have been met, it will request extradition in the name of the United States, and, where appropriate, will arrange for representation of the United States at the proceedings in the requested state. When extradition proceedings in the foreign state have been completed and the person sought has been certified to be extraditable, the Secretary or [her] authorized deputy may issue a warrant to federal or State officials to act as agents of the United States for the purpose of taking custody of the person in the requested state for return to the United States.").

"The Office of International Affairs (OIA) provides information and advice to Federal and State prosecutors about the procedure for requesting extradition from abroad. OIA also advises and provides support to Federal prosecutors handling foreign extradition requests for fugitives found in the United States. Every formal extradition request for international extradition based on Federal criminal charges must be reviewed and approved by OIA. At the request of the Department of State, formal requests based on State charges are also reviewed by OIA before submission to the Department of State." USAM § 9-15.210.

Criminal Resource Manual (CRM) §§601-610, available on Mar. 17, 2010, at http://www.usdoj.gov/usao/eousa/foi_reading_room/usam/title9/crm00601.htm; USAM §§ 9-15.100 to 9-15.800.

CRM § 603[A].

Id.

CRM § 603[B].

CRM § 603[C].

Id.

CRM § 603[F].

United States v. Corona-Verbera, 509 F.3d 1105, 1114-1116 (9^th Cir. 2007);United States v. Blanco, 861 F.2d 773, 778 (2d Cir. 1988); United States v. Leaver, 358 F.Spp.2d 255, 265 (S.D.N.Y. 2004). Cf., Doggett v. United States, 505 U.S. 647, 656-58 (1992).

CRM § 603[F].

Abbell, supra footnote 21, at § 6-2(25).

USAM § 9-15.230 ("... Once the United States requests provisional arrest ... [it] must submit as formal request for extradition, supported by all necessary documents, duly certified, authenticated and translated into the language of the country where the fugitive was arrested, within a specified time (from 30 days to three months, pending on the treaty).... Failure to follow through on an extradition request by submitting the requested documents after a provisional arrest has been made will result in release of the fugitive, strains on diplomatic relations, and possible liability for the prosecutor. The Office of International Affairs (OIA) determines whether the facts meet the requirement of urgency under the terms of the applicable treaty. If they do, OIA requests provisional arrest; if not, the prosecutor assembles the documents for a formal request. The latter method is favored when the defendant is unlikely to flee because the time pressures generated by a request for provisional arrest often result in errors that can damage the case ...").

CRM § 604; USAM § 9-15.230.

CRM § 605; USAM § 9-15.240.

CRM § 607; USAM § 9-15.240.

CRM § 609; USAM § 9-15.240..

CRM § 606; USAM § 9-15.240.

CRM § 608; USAM § 9-15.240.

Abbell, supra footnote 21, at §7-1(8); USAM § 9-15.250.

United States v. Alvarez-Machain, 504 U.S. 655, 661 (1992) (quoting United States v. Rauscher, 119 U.S. 407, 430 (1886)). See also United States v. Valencia-Trujillo, 573 F.3d 1171, 1173-1174 (11^th Cir. 2009);United States v. Anderson, 472 F.3d 662, 671 (9^th Cir. 2006); United States v. Garrido-Santana, 360 F.3d 565, 577 (6^th Cir. 2004); United States v. Campbell, 300 F.3d 202, 209 (2d Cir. 2002); United States v. LeBaron, 156 F.3d 621, 626 (5^th Cir. 1998); United States v. Tse, 135 F.3d 200, 204 (1^st Cir. 1998); Jacques Semmelman, The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher, 34 Va. J. Int'l L. 71 (1993); Application of Doctrine of Specialty to Federal Criminal Prosecution of Accused Extradited from Foreign Country, 112 ALR Fed. 473 (1993 & Oct. 2006 Supp.); Bassiouni, supra footnote 4, at 537-603; Abbell & Ristau, supra footnote 3, at 331-35.

Although the wording varies, the content of these provisions roughly corresponds to those in the Jamaican Extradition Treaty, art. XIV, entered into force July 7, 1991, S. Treaty Doc. 98-18:

(1) A person extradited under this Treaty may only be detained, tried or punished in the Requesting State for the offence for which extradition is granted, or (a) for a lesser offence proved by the facts before the court of committal ... (b) for an offence committed after the extradition; or (c) for an offence in respect to which the executive authority of the Requested State ... consents to the person's detention, trial or punishment ... or (d) if the person (i) having left the territory of the Requesting State after his extradition, voluntarily returns to it; or (ii) being free to leave the territory of the Requesting State after his extradition, does not so leave within forty-five (45) days.... (2) A person extradited under this Treaty may not be extradited to a third State unless (a) the Requested State consents; or (b) the circumstances are such that he could have been dealt with in the Requesting State pursuant to sub-paragraph (d) of paragraph (1).

See also Extradition Treaty with Belize, art. 14, entered into force Mar. 27, 2001, S. Treaty Doc. 106-38; Polish Extradition Treaty, art. 19, entered into force Sept. 17, 1999, S. Treaty Doc. 105-14; Extradition Treaty with Uruguay, art. 13, entered into force Apr. 11, 1984, 35 U.S.T. 3197; Hungarian Extradition Treaty, art. 17, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with Thailand, art. 14, entered into force May 17, 1991, S. Treaty Doc. 98-16; Bolivian Extradition Treaty, art. XII, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with the Bahamas, art. 14, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Jordanian Extradition Treaty, art. 16, entered into force Jul. 29, 1995, S. Treaty Doc. 104-3; Costa Rican Extradition Treaty, art. 16, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Italian Extradition Treaty, art. XVI, entered into force Sept. 24, 1984, 35 U.S.T. 3023.

Gallo-Chamorro v. United States, 233 F.3d 1298, 1305 (11^th Cir. 2000)("Rather than mandating exact uniformity between the charges set forth in the extradition request and the actual indictment, what the doctrine of speciality requires is that the prosecution be based on the same facts as those set forth in the request for extradition"); United States v. Sensi, 879 F.2d 888, 895-96 (D.C.Cir. 1989); United States v. LeBaron, 156 F.3d 621, 627 (5^th Cir. 1998)("the appropriate test for a violation of specialty is whether the extraditing country would consider the acts for which the defendant was prosecuted as independent form those for which he was extradited"); United States v. Andonian, 29 F.3d 1432, 1435 (9^th Cir. 1994); United States v. Levy, 25 F.3d 146, 159 (2d Cir. 1994).

United States v. Garrido-Santana, 360 F.3d 565, 577-78 (6^th Cir. 2004); United States v. Lazsarevich, 147 F.3d 1061, 1064-65 (9^th Cir. 1998)(also noting that the doctrine of specialty "exists only to the extent that the surrendering country wishes" and there was no evidence of a demand that the doctrine be applied).

United States v. Saccoccia, 58 F.3d 754, 784 (1^st Cir. 1995).

United States v. Burke, 425 F.3d 400, 408 (7^th Cir. 2005).

United States v. Puentes, 50 F.3d 1567, 1572 (11^th Cir. 1995)(stating that "The question of whether a criminal defendant has standing to assert a violation of the doctrine of specialty has split the federal circuit courts of appeals", and noting decisions in favor of defendant standing, including United States v. Levy, 905 F.2d 326, 328 n.1 (10^th Cir. 1990); United States v. Thirion, 813 F.2d 146, 151 n.5 (8^th Cir. 1987); United States v. Najohn, 785 F.2d 1420, 1422 (9^th Cir. 1986); and those holding to the contrary, United States v. Burke, 425 F.3d 400, 408 (7^th Cir. 2005); United States v. Kaufman, 874 F.2d 242, 243 (5^th Cir. 1989)). See also United States v. Antonakeas, 255 F.3d 714, 719-20 (9^th Cir. 2001)(defendant has standing to object to substantive but not procedural noncompliance with applicable treaty requirements); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 167-68 (3d Cir. 1997); Abbas v. Department of Homeland Sec., Civil Action No. 09-0169, 2009 WL 2512844, at *3-4 (U.S.W.D.La.,2009) (discussing conflicting jurisprudence and academic views regarding criminal defendant's standing to assert violation of specialty doctrine); Ha Kung Wong, Note, The Extra in Extradition: The Impact of State v. Pang on Extraditee Standing and Implicit Waiver, 24 J. Legis. 111 (1998); Mary-Rose Papandrea, Comment, Standing to Allege Violations of the Doctrine of Specialty: An Examination of the Relationship Between the Individual and the Sovereign, 62 University of Chicago Law Review 1187 (1995); Bassiouni, supra footnote 4, at 587-98.The Ninth Circuit has held that convictions for an offense in violation of the principles of dual criminality and/or specialty must be reversed. United States v. Anderson, 472 F.3d 662, 671 (9^th Cir. 2006).

United States v. Valencia-Trujillo, 573 F.3d 1171, 1179-1181 (11^th Cir. 2009) (recognizing that "[t]he rule of specialty applies only to extraditions pursuant to treaty," and finding that defendant lacked standing to claim a rule of specialty violation when his extradition from Colombia was not pursuant to the U.S.-Colombian extradition treaty, but was instead effectuated by way of an informal agreement between the countries).

United States v. Tse, 135 F.3d 200, 205 (1^st Cir. 1998); United States v. Puentes, 50 F.3d 1567, 1575 (11^th Cir. 1995); United States v. Riviere, 924 F.2d 1289, 1300-1301 (3d Cir. 1991); United States v. Najohn, 785 F.2d 1420, 1422 (9^th Cir. 1986).

United States v. Alvarez-Machain, 504 U.S. 655 (1992); United States v. Anderson, 472 F.3d 662, 666 (9^th Cir. 2006); United States v. Mejia, 448 F.3d 436, 442-43 (D.C. Cir. 2006); United States v. Arbane, 446 F.3d 1223, 1225 (11^th Cir. 2006); Kasi v. Angelone, 300 F.3d 487, 493-95 (4^th Cir. 2002); United States v. Noriega, 117 F.3d 1206, 1212-213 (11^th Cir. 1997); United States v. Matt-Ballesteros, 71 F.3d 754, 762-63 (9^th Cir. 1995).

E.g., Extradition Treaty with Thailand, art. 15, entered into force May 17, 1991, S. Treaty Doc. 98-16 ("If the person sought irrevocably agrees in writing to extradition after personally being advised by the competent authority of his right to formal extradition proceedings and the protection afforded by them, the Requested State may grant extradition without formal extradition proceedings"). See also Extradition Agreement with the European Union, art. 11, entered into force Feb. 1, 2010, S. Treaty Doc. 109-14 (applying in absence of a germane provision in an applicable bilateral treaty between the United States and an EU Member State); Extradition Treaty with the United Kingdom, art. 17, entered into force Apr. 26, 2007, S. Treaty Doc. 108-23; Extradition Treaty with Cyprus, art. 17, entered into force Sept. 14, 1999, S. Treaty Doc. 105-16; Austrian Extradition Treaty, art. 20, entered into force Jan. 1, 2000, S. Treaty Doc. 105-50, TIAS 12916; Costa Rican Extradition Treaty, art. 17, entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jordanian Extradition Treaty, art. 17, entered into force July 29, 1995, S. Treaty Doc. 104-3 ; Hungarian Extradition Treaty, art. 18, entered into force Mar. 18, 1997, S. Treaty Doc. 104-5; Extradition Treaty with the Bahamas, art. 15, entered into force Sept. 22, 1994, S. Treaty Doc. 102-17; Bolivian Extradition Treaty, art. XIII, entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Italian Extradition Treaty, art. XVII, entered into force Sept. 24, 1984, 35 U.S.T. 3023; Jamaican Extradition Treaty, art. XV, entered into force July 7, 1991, S. Treaty Doc. 98-18. See generally Abbell & Ristau, supra footnote 3, at 143-46, 306-7.

See generally Bassiouni, supra footnote 4, at 203-05. See also McMullen v. I.N.S., 788 F.2d 591, 596, overruled on other grounds (9^th Cir. 1986) ("When extradition is the issue, the attempt to remove an individual from the requested country is initiated at the specific request of another sovereign, whom the individual contends is seeking to extradite him solely in order to prosecute him for his political beliefs. Thus, the analysis in an extradition case turns on the language of the particular treaty….[I]n contrast to extradition, deportation is a matter solely between the United States government and the individual seeking withholding of deportation. No other sovereign is involved….Moreover, the individual need not be deported to any country specifically seeking to extradite him; all the United States seeks is to expel him from its own borders.").

United States v. Porter, 909 F.2d 789, 790 (4^th Cir. 1990); United States v. Rezaq, 134 F.3d 1121, 1126 (D.C.Cir. 1998); Abbell & Ristau, supra footnote 3, §13-5-2(2) ("In recent years, it has not been uncommon for foreign officials, particularly in lesser developed countries, to put a person sought by the United States on an airplane bound for this country in the custody of either United States law enforcement agents or their own law enforcement agents. Such deportation takes place without the requested country resorting to its formal administrative or judicial deportation procedures. It occurs most frequently in narcotics cases, and generally takes place where there is a close working relationship between United States law enforcement officers posted in that country and the police authorities of that country.... In addition to informal deportation by airplane, there is a large volume of informal deportations from Mexico to the United States. Most of these informal deportations are based on informal arrangements among local United States and Mexican law enforcement officials along the United States-Mexico border ..."). See also USAM §§ 9-15.610, 9-15.640 (noting the possibility of immigration exclusion and deportation as an alternative to extradition and in the case of American fugitives the prospect of revoking a fugitive's U.S. passport in aid of such an alternative).

E.g., I.N.S. v. Doherty, 502 U.S. 314 (1992); James T. Kelly, The Empire Strikes Back: The Taking of Joe Doherty, 61 Fordham Law Review 317 (1992).

E.g., Kalejs v. I.N.S., 10 F.3d 441 (7^th Cir. 1993)(deportation to Australia of a member of a German mobile killing unit in World War II who falsified immigration forms but who came to this country by way of Australia).

The United States has denaturalized and deported former Nazi death camp guards who gained entry into the United States and/or American citizenship by concealing their pasts. E.g., United States v. Balsys, 524 U.S. 666 (1998); United States v. Stelmokas, 110 F.3d 302 (3d Cir. 1997). See also John Francis Stephens, Note, The Denaturalization and Extradition of Ivan the Terrible, 26 Rutgers L. J. 821 (1995); Bassiouni, supra footnote 4, at 203-71 (summarizing alternatives and criticizing their use in some instances).

See generally CRS Report RL32890, Renditions: Constraints Imposed by Laws on Torture, by [author name scrubbed].

United States v. Mejia, 448 F.3d 436 (D.C. Cir. 2006); United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. 1998); United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991); United States v. Noriega, 117 F.3d 1206 (11^th Cir. 1997).

United States v. Alvarez-Machain, 504 U.S. 655 (1992); United States v. Torres Gonzalez, 240 F.3d 14, 16 (1^st Cir. 2001); United States v. Mejia, 448 F.3d 436, 442-43 (D.C. Cir. 2006); United States v. Arbane, 446 F.3d 1223, 1225 (11^th Cir. 2006); Kasi v. Angelone, 300 F.3d 487, 493-500 (4^th Cir. 2002). See also United States v. Anderson, 472 F.3d 662, 666 (9^th Cir. 2006)("a court is deprived of jurisdiction over an extradited defendant, if either (1) the transfer of the defendant violated the applicable extradition treaty, or (2) the United States government engaged in 'misconduct of the most shocking and outrageous kind,' to obtain his presence").

Sosa v. Alvarez-Machain, 542 U.S. 692, 699-738 (2004). Yet if the abducted defendant is entitled to protections under the Constitution, the U.S. officials involved may face civil liability. Id. at 736-37.

Kear v. Hilton, 699 F.2d 181 (4^th Cir. 1983); Jeffrey J. Carlisle, Comment, Extradition of Government Agents as a Municipal Law Remedy for State-Sponsored Kidnaping, 81 Cal. L. Rev. 1541 (1993); Kristofer R. Schleicher, Note Update, Transborder Abductions by American Bounty Hunters—The Jaffe Case and a New Understanding Between the United States and Canada, 20 Ga. J. Int'l & Comp. L. 489 (1990). In 2009, an Italian court convicted 22 CIA operatives and a U.S. military colonel in absentia for their purported role in the irregular rendition of an Egyptian cleric from Italy to Egypt. The Italian Ministry of Justice apparently has yet to request the United States to extradite these persons so that they may serve their criminal sentences. See Craig Whitlock, Italian Court Convicts 23 Americans in CIA Rendition Case; Extradition Undecided, Wash. Post, November 4, 2009.

USAM § 9-15.620 (If the fugitive travels outside the country from which he or she is not extraditable, it may be possible to request his or her extradition form another country. This method is often used for fugitives who are citizens in their country of refuge. Some countries, however, will not permit extradition if the defendant has been lured into their territory. Such ruses may also cause foreign relations problems with both the countries from which and to which the lure takes place"); USAM §9-15.630 ("A lure involves using a subterfuge to entice a criminal defendant to leave a foreign country so that he or she can be arrested in the United States, in international waters or airspace, or in a third country for subsequent extradition, expulsion, or deportation to the United States.... As noted above, some countries will not extradite a person to the United Stats if the person's presence in that country was obtained through the use of a lure or other ruse. In addition, some countries may view a lure of a person form its territory as an infringement on its sovereignty ...").

Although the deportation or exclusion of an alien under immigration laws may have the same practical effect as an irregular rendition (especially if the alien is subject to "expedited removal"), this practice is arguably distinct from the historical understanding of what constitutes a rendition, as alien removal is governed by statute and regulation. Nonetheless, certain alien removals have been popularly characterized as "renditions." Perhaps the most notable case of alleged rendition involved Maher Arar, a dual citizen of Canada and Syria. Mr. Arar filed suit in January 2004 against certain U.S. officials that he claims were responsible for rendering him to Syria, where he was allegedly tortured and interrogated for suspected terrorist activities. Arar was allegedly first detained by U.S. officials while waiting in New York's John F. Kennedy International Airport for a connecting flight to Canada after previously flying from Tunisia. According to U.S. officials, Mr. Arar's removal to Syria was done pursuant to § 235(c) of the Immigration and Nationality Act, which authorizes the "expedited removal" of arriving aliens suspected of terrorist activity. U.S. Department of State, U.S. Views Concerning Syrian Release of Mr. Maher Arar, October 6, 2003, available at http://2001-2009.state.gov/r/pa/prs/ps/2003/24965.htm; see also 8 U.S.C. § 1225(c). The U.S. District Court for the Eastern District of New York dismissed Arar's civil case on a number of grounds, including that certain claims raised against U.S. officials implicated national security and foreign policy considerations, and assessing the propriety of those considerations was most appropriately reserved to Congress and the executive branch. Arar v. Ashcroft, 414 F.Supp.2d 250 (E.D.N.Y. 2006). The district court's dismissal was upheld by a three-judge panel of the Court of Appeals for the Second Circuit, and upon rehearing, the appellate court sitting en banc. Ashcroft, 532 F.3d 157 (2d Cir. 2008), rehearing en banc, 585 F.3d 559 (2d Cir. 2009).

See, e.g., Reid v. Covert, 354 U.S. 1, 6 (1957) ("When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land.").

See 18 U.S.C. §§ 3181-3196; In re Kaine, 55 U.S. 103, 113 (1852) ("an extradition without an unbiased hearing before an independent judiciary [is] highly dangerous to liberty, and ought never to be allowed in this country").

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), art. 4, entered into force for U.S. on Oct. 21, 1994, S. Treaty Doc. 100-20 (requiring parties to criminalize all acts of torture, as well as attempts to commit and complicity or participation in torture); 18 U.S.C. § 2340A(a) (making it a criminal offense to conspire to commit torture outside the United States).

See, e.g., Hungarian Extradition Treaty, art. 3(2), entered into force Mar. 18, 1997, S. Treaty Doc. 104-5 ("If extradition is refused solely on the basis of the nationality of the person sought, the Requested State shall, at the request of the Requesting State, submit the case to its authorities for prosecution"); Austrian Extradition Treaty, art. 3(2), entered into force Jan. 1, 2000, S. Treaty Doc. 105-50, TIAS 12916; Extradition Treaty with Cyprus, art. 3(2), entered into force Sept. 14, 1999, S. Treaty Doc. 105-16; Bolivian Extradition Treaty, art. III(3), entered into force Nov. 21, 1996, S. Treaty Doc. 104-22; Extradition Treaty with Thailand, art. 8(2), entered into force May 17, 1991, S. Treaty Doc. 98-16; Costa Rican Extradition Treaty, art. 8(3), entered into force Oct. 11, 1991, S. Treaty Doc. 98-17; Jamaican Extradition Treaty, art. VII(2)-(3), entered into force July 7, 1991, S. Treaty Doc. 98-18 (similar, but also requiring extradition if a fugitive is a national of both the Requesting and Requested State).

USAM § 9-15.650 ("If the fugitive has taken refuge in the country of which he or she is a national, and is thereby not extraditable, it may be possible to ask that country to prosecute the individual for the crime that was committed in the United States. This can be an expansive and time consuming process and in some countries domestic prosecution is limited to certain specified offenses. In addition, a request for domestic prosecution in a particular case may conflict with U.S. law enforcement efforts to change the 'non-extradition of nations' law or policy in the foreign country ...").