sixteen were complete new treaties and two were protocols to existing treaties.3
In broad outline, the extradition process in U.S. practice is as follows: U.S. requests for extradition to other countries originate with federal, state or local prosecutors who are seeking the return to the United States of a fugitive sought for trial or punishment. The Justice Department’s Criminal Division helps these prosecutors draft outgoing extradition requests and helps ensure that the requests meet the requirements of the particular treaty and foreign law. Once an outgoing U.S. extradition request is finalized, it is forwarded through diplomatic channels to the foreign government for its review and action. Practice varies in countries receiving our requests, but typically the foreign government forwards the request to its courts for a judicial determination on whether a fugitive is extraditable under the treaty and relevant domestic law.4 Following a judicial determination of extraditability, the final decision for extradition generally rests with the foreign government’s executive branch. If it approves extradition, the foreign government will make arrangements to transfer custody of the fugitive to U.S. law enforcement authorities.
Requests by foreign governments for fugitives in the United States are handled along the same general lines. Extradition requests are provided to us via diplomatic channels and are initially reviewed at the Department of State. Where appropriate, the State Department transmits the request to the Department of Justice with a declaration attesting that there is an extradition treaty in force with the state requesting extradition, that a request has been made pursuant to the treaty, and that the offense for which extradition is sought is covered by the treaty. The Department of Justice then reviews the request and, if it is complete and legally sufficient under U.S. domestic law and the relevant treaty, DOJ initiates the extradition proceeding in U.S. District Court on behalf of the foreign government for a determination of whether the person is extraditable. If (and only if) a fugitive has been found extraditable by our courts the Secretary of State ultimately decides whether a fugitive will be surrendered, and has the authority to deny extradition, , if she determines that it is more likely than not that a fugitive sought for extradition will be tortured if extradited.5 When the Secretary signs a surrender warrant, the fugitive is delivered to law enforcement officials of the requesting country, to be transported to that country for trial or, if already convicted, to serve a sentence.
3 The new treaties are with Antigua and Barbuda, Argentina, Austria, Barbados, Cyprus, Dominica, France, Grenada, India, Luxembourg, Poland, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, and Zimbabwe. The two protocols were with Mexico and Spain. The sixteen complete treaties include key provisions we seek in our modern treaties that are discussed later in this Report, such as extradition based on dual criminality as opposed to a list of offenses. Of the sixteen complete treaties, fifteen replaced pre-existing treaty relationships. The treaty with Zimbabwe established an extradition treaty relationship with that country for the first time.
4 Our extradition treaties typically require foreign governments to represent the interests of the United States in connection with U.S. extradition requests.
5 U.S. courts have followed a “rule of non-inquiry” under which issues concerning whether the defendant is likely to be treated fairly and humanely if extradited are not considered as part of the finding of extraditability but are reserved to the Secretary of State. For instance, the obligation of the United States under the Torture Convention not to extradite a person to a country where it is more likely than not that the person will be tortured is implemented through the Secretary of State’s review. 22 C.F.R. Part 95.