Extradition request: your rights and the main defenses

Your rights at each stage

What the judge decides, and what the judge does not

Under 18 U.S.C. 3184, the judge hears the evidence of criminality and decides whether it is sufficient to sustain the charge under the treaty. If it is, the judge certifies the case to the Secretary of State and commits the person to custody.

The judge does not decide guilt or innocence. Questions such as foreign-policy and humanitarian concerns are left to the Secretary of State.

Evidence rules are relaxed. The Federal Rules of Evidence and of Criminal Procedure do not apply (JM 9-15.700), and foreign documents are admitted if they are authenticated as the statute requires, with a certificate from the U.S. diplomatic or consular officer in the requesting country (18 U.S.C. 3190).

Defenses that come from the treaty

Each treaty is different. The examples below use the 1979 U.S.–Turkey treaty.

• Offense not covered. The offense must be punishable by deprivation of liberty of more than one year under both Turkish law and U.S. federal law (Article 2(1)).
• No dual criminality. The conduct must be a crime in both countries; the name or category of the offense does not matter (Article 2(1)).
• Insufficient evidence. For a person not yet tried, the request must include evidence that would justify arrest and committal for trial under the law of the requested country (Article 7(1)(c)).
• Wrong person. The request must include evidence that the person before the court is the person named in the warrant (Article 7(1)(d)).
• Political or military offense. Extradition must be refused for political offenses, including requests made in fact to prosecute or punish political opinions, and for purely military offenses (Article 3(1)(a)–(b)). An offense against a head of state or government, or their family, is not treated as political.
• Time bar, prior judgment, amnesty. Refusal is mandatory if prosecution or punishment is time-barred under either country's law, if the person was finally acquitted or convicted for the same offense in the requested state, or if an amnesty applies (Article 3(1)(c), (d) and (f)).
• Deadlines. After a provisional arrest, the formal documents must arrive within 60 days or the person is released (Article 10).

Defenses decided by the Secretary of State

The Secretary of State decides whether to surrender after certification (18 U.S.C. 3186). Under 22 CFR 95.2, the State Department considers whether the person is more likely than not to be tortured in the requesting state, to apply Article 3 of the Convention Against Torture.

The Secretary may surrender, deny surrender, or surrender subject to conditions (22 CFR 95.3). The regulation says these decisions are matters of executive discretion and are not subject to judicial review (22 CFR 95.4).

Evidence for this stage takes time to gather: medical records, reports on prison conditions, court decisions in related cases, and documents on the political background of the prosecution. Start collecting it at the beginning of the case.

How the Justice Department sees defenses

The Justice Manual lists reasons a person may not be extraditable: the person is a national of a country that does not extradite its nationals, the crime is not an extraditable offense, the statute of limitations has run, or the person has already been prosecuted for the same conduct (JM 9-15.600).

It also tells prosecutors that there are few workable defenses to extradition, that appeals and delays are common, and that people may contest extradition on inconsistencies in the documents (JM 9-15.240). Read together, these lines explain why the documents and the treaty text deserve close reading from the first day.

First steps

For the order of the whole case, see how extradition works; for treaty lists, see U.S. extradition treaties.

1. Find out whether there is an extradition request or a provisional-arrest request, and which country sent it.
2. Get the treaty, its protocols and the charging documents of the requesting country.
3. Gather identity documents and immigration papers.
4. Collect evidence for any political-offense, time-bar or torture argument, with dates and sources.
5. Check for a Red Notice before travelling to any third country; the Justice Manual notes that many countries arrest on a Red Notice alone (JM 9-15.635).
6. If you are also in immigration proceedings, make sure the lawyers on both cases know about both.