Extradition Between the United States and Great Britain: A Sketch of the 2003 Treaty

Order Code RS21633

Updated October 10, 2006

CRS Report for Congress

Received through the CRS Web

Extradition Between the United States and

Great Britain: A Sketch of the 2003 Treaty

name redacted

Senior Specialist

American Law Division

Summary

Federal court denial of British extradition requests in the cases of four fugitives

from Northern Ireland led to the Supplementary Extradition Treaty. The Treaty proved

controversial, and before the Senate would give its consent, it insisted upon

modifications, some quite unusual. Those modifications have been eliminated in a

newly negotiated treaty to which the Senate has recently given its advice and consent

and which incorporates features often more characteristic of contemporary extradition

treaties with other countries.

The Senate conditioned its approval of the Treaty upon an understanding, two

declarations and three provisos which relate to the Treaty’s treatment of the exception

for politically motivated requests and the role of the courts, its changes in the double

jeopardy clause, assurances that the Treaty is not designed to accomplish the extradition

of fugitives from Northern Ireland covered by the Belfast/Good Friday Agreement, and

reporting requirements concerning the disposition of requests under the Treaty. This

report is an abridged version (without footnotes or citations) of CRS Report RL32096,

Extradition Between the United States and Great Britain: The 2003 Treaty.

Senate Response to Initial Objections to 2003 Treaty. The Senate gave its

advice and consent to the 2003 Treaty on September 29, 2006, subject to an

understanding, two declarations, and three provisos, 152 Cong. Rec. S10766-767 (daily

ed. Sept. 29, 2006). The understanding, declarations and provisos confirm that (1) federal

courts will retain the authority to bar extradition when a request fails to meet the demands

of 2003 Treaty; (2) the 2003 Treaty does not obligate the United States to take any action

proscribed by the Constitution; (3) the parties have disclaimed any interest in prosecuting

offenses committed in Northern Ireland prior to and addressed in the Belfast/Good Friday

Agreement. It also urges the Secretary of State to consider carefully any requests for the

extradition of a fugitive who was previous acquitted, and after the Treaty becomes

effective it requires annual reports from the Secretary on the number and disposition of

extradition requests under the Treaty. Critics had earlier objected to the Treaty on the

grounds that: It eliminates the political offense for any offense allegedly involving

violence or weapons, including any solicitation, conspiracy or attempt to commit such

Congressional Research Service ˜ The Library of Congress

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crimes: It does and more. There is likely to be little consensus over whether this is

objectionable. It is the issue that dominated debate over the Supplementary Treaty. There

is little disagreement over the origins or original rationale of the exception. The difficulty

comes in defining the exception’s proper scope. Should it protect fleeing insurgents from

prosecution and punishment for acts of violence they committed against the military

forces of the government they sought to overthrow? Absent a treaty bar, United States

courts have held that it should apply to crimes committed incidental to and in furtherance

of rebellion or similar political disturbance. Reliance upon the exception led to the

exemptions to the exception found in the proposed Supplementary Treaty. The Senate

accepted a somewhat reduced list of exemptions to the political offense exception in

exchange for expanded judicial authority to verify probable cause and the bona fides of

a request. Several of the enlargements — those dealing with firearms possession,

conspiracy, property damage, involuntary manslaughter, unlawful detention (serious or

otherwise) — repeal specific Senate amendments to the Supplementary Treaty as

originally transmitted to the Senate. The inclusion of threats, firearms, possession of

explosives, property damage (independent of bodily injury), and accessories after the fact

appears to carry the provision well beyond the coverage of even the more ambitious of

such provisions in our other recent extradition treaties. Its sweep is made all the more

dramatic by removal of the judicial safety valve found in the Supplementary Treaty’s

“improper motives” Article.

The Senate responded with the explicit understanding that as part of the extradition

process normally conducted under the laws of the United States, “a United States judge

makes determinations regarding the application of the political offense exception.” The

understanding is reenforced by the second declaration confirming the role of the courts

in the extradition process and by the provisos indicating that the 2003 Treaty is not

designed to permit the prosecution of fugitives from Northern Ireland for offenses

committed prior to the Good Friday Agreement.

Transfers responsibility for determining whether the extradition request is

politically-motivated from the courts to the executive: It does. Again whether this is

objectionable may depend upon perspective. Born of a concern for fairness, the features

of the Supplementary Treaty are nonetheless unique. Of course, the question — of

whether the crime upon which an extradition request rests is political crime — is closely

related to the question of whether an extradition request is grounded in improper political

motives. The 2003 Treaty strikes or at least extensively prunes perhaps the most

individualistic features of the existing treaty — the treatment of improperly motivated

requests and the specifics concerning the existence of probable cause. Article 3 of the

Supplementary Treaty establishes a judicial procedure replete with appellate rights to bar

extradition based on trumped-up charges or improperly motivated requests.

The 2003 Treaty’s pruning of the improper motivation clause leaves only political

motives suspect and expressly removes the issue from the courts. More broadly drafted

clauses — proscribing racial, religious or other improperly motivated extradition requests

— are not uncommon elsewhere. The 2003 Treaty’s repeal of the judicial authority to

inquiry into extradition motivation, however, comports with treatment of the issue

diplomatically and judicially. Moreover, as noted above, the understandings, declarations,

and provisos, upon which the Senate insisted, emphasize that whether a particular

extradition request satisfies treaty requirements remains an initial judicial determination

and disclaim any intent to reopen the Good Friday Agreement.

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Eliminates the need for any showing by the United Kingdom of facts sufficient to

show the person requested is guilty of the crime charged — mere unsupported allegations

are sufficient: The Supplementary Treaty’s probable cause article reenforces the benefits

of article 3. While the 2003 Treaty strikes (1) the Supplementary Treaty language

insuring an individual the right to contest the existence of probable cause to justify

extradition, and (2) the original treaty language on the weight of evidence required for

extradition, it does insist that the documentation accompanying a request include “such

information as would provide a reasonable basis to believe that the person sought

committed the offense for which extradition is requested,” 2003 Treaty, Art.8(3)(c).

Allows for extradition even if no U.S. federal law is violated: It does, but in a less

dramatic manner than the objection might imply. As a general rule, the 2003 Treaty, like

its predecessor, limits extradition to misconduct outlawed in both countries. The

exception is found in cases of extraterritoriality. The existing treaty obligates the Parties

to extradite with respect to crimes committed within the jurisdiction of the requesting

country. Historically, the United States has construed this language to mean offenses

committed within the territory of the requesting country. As the United States began to

assert its criminal extraterritorial jurisdiction more regularly, it began to negotiate

extradition treaties that either permitted or required extradition to the United States with

respect to crimes committed outside this country.

Our present treaty favors the historical model. The 2003 Treaty requires extradition

in extraterritorial cases where the law of the two countries would apply comparably; but

permits extradition in other cases. Thus, the United States would be permitted to honor

a British extradition request for an individual charged with a violation of British law on

the basis of conduct committed entirely within this country (even if the conduct were

completely lawful under our laws). And it would be required to honor a request based

upon conduct here but in violation of a British version of a statute like 18 U.S.C. 2339B

(providing material support to terrorist organizations) or 18 U.S.C. 956 (conspiracy to

commit various acts of violence or property damage overseas).

Eliminates any statute of limitations: It does, as do several of our more recent

extradition treaties. The vast majority of the extradition treaties to which the United

States is a party contain a statute of limitations bar of some kind. In some instances the

bar is triggered by the law of the requesting country; in some by the law of the requested

country; and in others by the law in either country. The rationale is presumably the same

as in other contexts: that at least in some instances it is unfair to require individuals to

defend themselves against stale charges after memories have faded, evidence has

disappeared, and witnesses have died.

Our existing treaty with the United Kingdom bars extradition if trial would be barred

by the lapse of time under the laws of either country. The Supplementary Treaty

submitted to the Senate contained an amendment which would have limited this clause

to instances barred by the laws of the requesting country. The change was thought to

benefit the United Kingdom in terrorism cases which were not subject to a statute of

limitations. The Senate dropped the amendment from the Supplementary Treaty. Since

then, a number of the treaties submitted to the Senate continue to contain a statute of

limitations clause, but perhaps an equal number of others either silently omit the clause

or include a clause specifically declaring that the expiration of a period of limitation is no

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bar to extradition. The 2003 Treaty eliminates the passage of time as a defense altogether

regardless of the nature of the crime.

Allows for “provisional arrest” and detention for 60 days upon request by the

United Kingdom: It does, but so does the existing treaty. Provisional arrest refers to the

authority to arrest the individual sought for extradition before receiving the full

documentation required to initiate extradition proceedings. The 2003 Treaty is more

precise than the existing treaty in its description of the information that must accompany

a request for provisional arrest. The 2003 Treaty also affords the Parties great flexibility

as to the permissible recipients of requests and documentation, but the most substantial

change seems to be that under the existing treaty the individual must be released after 60

days if the necessary documentation has not arrived while under the 2003 Treaty release

is discretionary.

Allows for seizure of assets by the United Kingdom: Crime-related assets are subject

to seizure under the laws of the United Kingdom and of the United States under various

circumstances, some of which implement or supplement our treaty obligations. The

existing treaty permits the transfer of evidence and assets from one country to the another.

Facially, the 2003 Treaty’s treatment of forfeitable property differs from its predecessor

in two respects. It describes the property subject to confiscation more broadly and it omits

any reference to the rights of claimants. The existing treaty provision is limited to

proceeds rather than items “connected with the offense,” and only extends to items in the

actual possession of the individual to be extradited. The changes reflect a greater federal

emphasis on forfeiture as a law enforcement tool than was the case when the existing

treaty was negotiated. Federal law now authorizes confiscation of property derived from,

or in some instances used to facilitate, any number of federal crimes including terrorism,

organized crime, drug trafficking, and other profit generating crimes. When they are

involved in financial transactions in this country, it permits the confiscation of the

proceeds from drug trafficking, crimes of violence, fraud, public corruption or smuggling

in violation of the laws of other countries.

Federal law also provides for federal court orders freezing property located in this

country but subject to confiscation under foreign forfeiture laws comparable to our own,

and for enforcement of foreign forfeiture orders by federal courts under some

circumstances. Moreover, it vests the Attorney General with the power to share the

proceedings from federal confiscations with foreign countries pursuant to an international

agreement to do so. The innocent claimant protections of these statutes would seem to

mitigate any adverse consequences attributable to the omission of any reference to the

rights of claimants in the 2003 Treaty.

Allows for extradition for one offense, and then subsequent prosecution in the UK

for an unrelated offense (thus eliminating the time-honored “rule of speciality”): The

2003 Treaty continues the rule in effect, but allows the United States to consent to

deviation by the Great Britain and vice versa. The rule of specialty permits individuals

to be tried and/or punished only for the crimes for which they are extradited. The rule is

designed to ensure that an individual is not tried or punished for a crime for which he

would not have been extradited. And the elimination of the rule might be particularly

unfair where the individual sought has waived extradition. For purposes of American

law, the rule is a matter of statutory construction, and consequently can be overcome by

a provision in a later treaty. Most recent treaties permit the requested country to consent

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to trial or punishment for offenses other than those for which the individual was

extradited. Even without a specific treaty clause, federal courts have held that the

requested country may consent to trial or punishment for offenses other than those for

which extradition was granted. Federal courts are divided, however, over the question of

whether an individual may successfully raise the rule on behalf of the country of refuge.

Our existing treaty with Great Britain codifies the rule and has no consent exception. The

2003 Treaty preserves the rule but contains an explicit consent exception.

Applies retroactively, for offenses allegedly committed even before the ratification

of the treaty: It does; most extradition treaties do. The significance of the clause in the

2003 Treaty may be what it does not do. The Supplementary Treaty endorses the general

rule but makes it applicable to earlier offenses only if the offense was proscribed by the

laws of both countries at the time of its commission. The 2003 Treaty clause has no such

reservation. The omission may be significant when read in conjunction with the

extraterritorial clause to permit extradition for earlier misconduct committed outside the

territory of the requesting country under circumstances where the misconduct is not

proscribed by the laws of the country of refuge.

Other Treaty Clauses. The 2003 Treaty has other clauses, some of them a

departure from our earlier benefits and obligations. Extradition to Third Countries or

Entities: As in the case with our existing treaty with Great Britain, the specialty ban on

prosecution of additional crimes often includes a ban on re-extradition to a third country.

Beginning in the 106th Congress, several extradition treaties submitted to the Senate bar

re-extradition to international tribunals without consent. This may have been done at our

behest with an eye to the International Criminal Court; or at the behest of our treaty

partners with an eye to our statutory provisions relating to the Yugoslav and Rwandan

tribunals; or both; or for some other reason. In any event, the 2003 Treaty may yield the

same result through its more cryptic reference to “onward extradition.”

In the case of multiple extradition requests, the 2003 Treaty maintains essentially the

same standards for dealing with requests from a third country that elects to submit a

contemporaneous request to the country of refuge rather than submitting a subsequent

request to the country to whom extradition has been granted. The only real difference is

that the existing treaty specifically mentions the nationality of the individual sought as a

factor to be considered, while the Parties may count nationality among the unmentioned

“relevant factors” that the 2003 Treaty considers in play. It may be, however, that the

Parties have rejected nationality as a relevant extradition factor under any circumstances.

After all, elsewhere in the 2003 Treaty they have denied themselves the right to refuse to

extradite on the basis of nationality, and have removed the identification of the nationality

of the person sought from the information that must be provided with an extradition

request.

Double Jeopardy: Ordinarily, an individual cannot be extradited on the basis of

conduct for which he has already been tried. Our existing treaty with Great Britain bars

extradition if prosecution would be precluded in the country of refuge by virtue of any

earlier trial there, or in the requesting country, or in a third country. The 2003 Treaty

prohibits extradition where the individual has been tried in the country of refuge, and

allows a country of refuge to deny a request for an individual tried in a third country. A

Senate proviso urges the Secretary of State to be sensitive to the possibility of unfair

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treatment when considering a British extradition request for a fugitive previously

acquitted there.

Nationality: Some nations prefer not to extradite their own citizens and have insisted

that their extradition treaties preserve their right to decline requests to extradite their own

nationals. The United States opposes his view. Our existing treaty with Great Britain

does not address the issue directly and as a consequence the United States may not decline

to extradite an American to Great Britain solely on the grounds of citizenship. Like

several of our more recent extradition agreements with common law countries, the 2003

Treaty makes this result explicit.

Waiver: Neither federal law nor most early treaties provide any obvious mechanism

under which an individual might waive extradition proceedings in this country. This can

work to the inconvenience of both countries involved in cases where the delay is of no

real benefit to the individual sought. The present treaty does not address the issue, but

like most modern treaties, the 2003 Treaty has a waiver clause.

Translations: Our extradition agreements with English-speaking countries do not

ordinarily include a translation clause. The 2003 Treaty requires documentation in

English, with the cost of any translation to be borne by the requesting country as is

ordinarily the case in our extradition relations with non-English-speaking countries.

Deferred Prosecution or Punishment: Our existing treaty with Great Britain

requires deferral of an extradition request for an individual being tried or serving a

sentence in the requested country for another offense. The 2003 Treaty affords the

requested country greater flexibility; it may defer the extradition request, the trial, or

service of the sentence. In the case of the United States, one commentator has suggested

that because of constraints on stale prosecutions, the United States may be willing to

postpone service of sentence but is not likely to surrender an individual pending trial

unless it is willing to abandon the prospect of future prosecution.

Transit: Although the present treaty is silent on the matter, most modern extradition

treaties to which the United States is a party contain a transit clause that allows each

country to effectuate its extradition relations with third nations by transporting individuals

across each other’s territory. The 2003 Treaty clause grants federal and British authorities

discretionary authority to approve transfers through their respective countries, with

exceptions for transportation through a Party’s air space and procedures in the case of

unscheduled aircraft landings.

Capital Crimes: The existing extradition treaty makes special provision for capital

cases, Art.IV. The 2003 Treaty makes essentially the same accommodation.

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