Extradition's paradox: duty, discretion, and rights in the world of non-inquiry.

• Author: Murchison, Matthew

TABLE OF CONTENTS INTRODUCTION I. OVERVIEW OF EXTRADITION IN THE UNITED STATES A. Sources of Law B. Procedural Setting of the Extradition Hearing II. THE RULE OF NON-INQUIRY IN GENERAL A. A Short History of the Rule B. Treaty-created Exceptions to the Rule C. Common Law Exceptions to the Rule III. DOCTRINE, POLICY, AND PRACTICALITY: THE EVOLVING NEXUS EXTRADITION LAW AND HUMAN RIGHTS OBLIGATIONS A. Current Rationales for the Rule B. Semmelman and Scharf Revisited C. A Better Path to Inquiry CONCLUSION INTRODUCTION

As international law grows increasingly preoccupied with the status of individuals, (1) international extradition, once considered exclusively within the realm of foreign policy and state-to-state relations, now finds itself saturated with concerns of human rights. Throughout its history, international extradition law--an intricate doctrinal web spun by treaties, statutes, the workings of national politics, and concerns of transnational comity (2)--has resisted the incursion of individual rights concerns, dismissing them as inconvenient to the pursuit of broader policy goals. As extradition remains a creature of treaties, (3) their negotiators and architects have little incentive to sacrifice state power and discretion for the protection of rights of would-be fugitives.

The "rule of non-inquiry," which forbids U.S. judges in extradition hearings from considering the potential for procedural unfairness and gross human rights abuses that may await the fugitive in the requesting country, has persisted for over a century as a glaring blind-spot for the judiciary. A defendant has traditionally had no judicial recourse to challenge his impending extradition, even when he has substantial reason to believe he will fall victim to unfair and abusive treatment once surrendered. In fact, as a matter of legal history, the defendant's only friend in this matter has been the Secretary of State, who, with absolute freedom to balance the exigencies of international politics against the rights of the fugitive, has discretion to deny the extradition request. (4) Thus, paradoxically, the law of extradition in the United States entrusts the extraditee's basic rights to the branch least interested in and amenable to their protection.

This Note outlines the rule's foundations, seeks to refute the continued viability of those foundations, and ultimately proposes avenues for the rule's circumvention. Part I examines the fundamentals of extradition in the U.S. legal system, including the sources of extradition law and the procedural setting of extradition hearings. (5) Part II traces the rule of non-inquiry through nearly 200 years of jurisprudence and explores emerging judicially-recognized exceptions. (6) Part III addresses the doctrinal, prudential, and policy rationales recently advanced on the rule's behalf, rebuts those rationales, and suggests several methods by which an extraditee may air legitimate concerns in federal court. (7)

1. OVERVIEW OF EXTRADITION IN THE UNITED STATES

   1. Sources of Law

      Engendered by treaties, given procedural heft by statutes, and watched closely by interested citizens and states alike, the current law of extradition sits at the crossroads of public international law, national law, and politics. The United States has no duty to extradite a fugitive (known as a "relator" in extradition law) in the absence of a bilateral or multilateral extradition treaty. (8) Such treaties usually set out, at a minimum, a mutual obligation to extradite for a number of specified offenses, but only if certain standards--contained in the domestic law of the country holding the fugitive--are met. (9) When judges and other officials apply these domestic law standards to determine extraditability, they do so under significant political pressure, and such pressure may significantly shape the course and character of extradition proceedings. (10)

      Extradition treaties range widely in the obligations each imposes on the contracting parties, and the extent to which the treaty contains hard obligations, as opposed to softer, permissive provisions, can vary according to the amount of overlap between the parties' human rights standards and the degree of similarity between each party's procedural systems and substantive norms. Unsurprisingly, the numerous extradition treaties that have existed over time between the United States and the United Kingdom have been among the most permissive, regarding both the discretion granted to the parties on whether to extradite and the array of crimes set out as extraditable offenses. (11) The current U.S.-U.K. Extradition Treaty contains a comprehensive set of exceptions to the political offense doctrine and, until 2003, even provided for judicial review on the issue of whether "the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions," (12) or whether the relator "would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions." (13) Conversely, U.S. extradition treaties with non-Western countries (or countries whose laws bear less substantive and procedural similarity to those of the United States) place considerably more elaborate and restrictive duties on the parties. (14)

      Foreign countries, seeking a person within U.S. borders, direct their extradition requests to the State Department; if the Secretary of State considers the request to be within the applicable treaty, federal statutory law then governs the procedure for determining extraditability. (15) On the Secretary's behalf, the Justice Department forwards the extradition request to a United States Attorney, who in turn files a complaint in the judicial district where the suspected fugitive is believed to be located. (16) After a preliminary review, the district court judge may then issue a warrant for the suspected fugitive's arrest and order a hearing to determine his extraditability. (17) If, at the hearing, the U.S. Attorney proves to the district judge's satisfaction that the evidence is "sufficient to sustain the charge under the provisions of the proper treaty or convention," the judge will then certify the finding of extraditability to the Secretary of State (18) and order the relator to be held (19) until his surrender to the requesting country. (20)

   2. Procedural Setting of the Extradition Hearing

      The portion of the United States Code that provides for the hearing on extraditability also lays out the hearing's procedural framework and outlines, albeit dimly, the extent of the court's inquiry. By not requiring adherence to the Federal Rules of Evidence or the Federal Rules of Criminal Procedure, the extradition statutes leave the scope of discovery to the judge's discretion and make "authentication" by a "consular officer" effectively the sole statutorily-dictated bar to admissibility. (21) Notwithstanding the hearing's lax evidentiary standards, relevance considerations will persuade a judge to exercise his discretion to exclude large categories of evidence, (22) since the hearing is considered "preliminary" in nature (23) and is concerned primarily with extraditability (not with guilt or innocence). (24)

      In addition to informing a judge's evidentiary analysis, the hearing's preliminary nature naturally serves to constrict the number of issues available to be decided therein. On its face, the wording of 18 U.S.C. [section] 3184 provides only indirect guidance to the preferred scope of the judge's inquiry:

      [The judge may] issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered.... If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention ... he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State.... (25) Without laying out the exact parameters of the extradition hearing, Section 3184 nonetheless alludes to the type of evidence to be considered ("evidence of criminality"), to a "sufficiency" standard when considering such evidence, and to the showing required of the U.S. Attorney (that the evidence "sustain[s] ... the charge under the provisions of the proper treaty or convention"). (26) There is no indication, however, that "evidence of criminality" is the only evidence that could contribute to a finding of extraditability. Also missing is a bright line to assist the judge when determining whether extradition in the instant case would run afoul of other treaty obligations, such as the broad-ranging imperatives of the Torture Convention (27) or the Refugee Protocol. (28) Without explicit statutory guidance on these increasingly complex legal and moral quandaries, judges in extradition hearings cling to uncertain, even outmoded, common law restrictions, such as the much-debated "rule of non-inquiry," outlined in Section II.

      The ambiguous scope of inquiry demarked by the extradition statute, originally passed in 1848 and not substantially different today, has provided ample room for litigation over the last century and a half, with some determinations of extraditability ascending on habeas review to the United States Supreme Court. (29) Many courts (including, arguably, the Supreme Court itself) have ruled that the only issue before the judge is whether the person, on "evidence of criminality" alone, is properly extraditable under the extradition treaty. (30) Other courts have found that the scope is not so limited, that the extradition hearing could (and in some situations must) also serve as the forum for other issues, such as concerns over human rights in the requesting country. (31) Judicial uncertainty on the scope of...