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Extradition

EXTRADITION

“Extradition” is the formal surrender of a person by a State to another State for prosecution or punishment. Extradition to or from the United States is governed by treaty. We have extradition treaties with over a hundred nations.  When there is no governing treaty, extradition is governed by the constitutions and laws of both countries, and as a last resort, through diplomacy. International terrorism and drug trafficking have made extradition an increasingly important law enforcement tool - and have brought to the forefront many extradition practices.  Harris Carmichael & Ellis can help advise your family through this process, negotiate with the proper officials, and clarify the options available to, and advisable to you.

EXTRADITION PROCESS

Extradition between the United States and many foreign countries is governed by bilateral treaty. According to the terms of these treaties, certain enumerated offenses are agreed upon as a basis for extradition.  This list is not exhaustive, however, and the laws of either country, or diplomatic deference, can form a basis for extradition for other reasons.  

 Fugitives in other countries are often arrested for unrelated matters, and are then held because they are wanted in the United States.  Sometimes, clients are arrested on an Interpol Red Notice, which acts like an international arrest warrant.[1] This Notice provides a basis for detention, on behalf of the United States, in any country around the globe.  Once arrested, the United States has a limited amount of time, sometimes as few as five days (governed by treaty) to submit a Provisional Arrest Warrant to the foreign country. 

            Once the foreign country receives this, they process it and execute the warrant. The United States then has a limited amount of time from the provisional detention to submit its formal extradition request.  

            The formal extradition request must include a bevy of documents outlined in the treaty.[2]  The Department of State will formally submit the package to the American Embassy in the foreign country, who then forwards it to the other country's Foreign Ministry.  Before the State Dept. submits it to the embassy, however, there are several steps.  At the request of the State Dept., all document packages are first reviewed by the Office of International Affairs [“OIA”], a division in the Department of Justice.  OIA not only reviews all requests forwarded by federal agencies, but also by state prosecutors seeking extradition.[3]  Once OIA has signed off on the package, it is forwarded to the State Dept. and sent out for translation, a process which can take two to three weeks.[4] Only after the entire package has been translated is it forwarded to the American Embassy for submission to the other country's Foreign Ministry.[5]  

POSSIBLE CONCERNS

            Clients can challenge extradition for a number of reasons, should they so choose.  The bases for doing this vary widely depending upon the individual, the offense charged, the documents submitted, which foreign country is involved, and the terms of the treaty.  It's crucial to engage the services of an attorney who is familiar with treaties and the officials involved in this process.  

            The lawyers at Harris Carmichael & Ellis have worked with federal authorities in multiple capacities for many years.  In this time, we have gained experience meticulously coordinating international extradition while advising clients of all their rights and options.  We also have anecdotal experience from others who have gone through extradition in foreign countries, and what they experienced.  Sometimes, challenges to extradition in the foreign country are extremely inefficient. Even if the challenge is successful, the process lags for multiple years.  During this time, the individual is often held in custody under some of the worst imaginable conditions.

WAIVER OF EXTRADITION/SIMPLIFIED EXTRADITION

            Clients do have the ability to “waive” their challenge to extradition, and streamline the process of surrender.  For instance, once the formal extradition request is submitted, and received by the Foreign Ministry, that country will evaluate whether the extradition is not obviously precluded by its own laws. Our client may then, after being advised by a judge or magistrate of his/her right to formal proceedings, irrevocably agree in writing to waive those rights. Should he/she choose to do so, the foreign country may grant the United States request for extradition without formal proceedings being necessary.

             This may be advisable - but it is important to have clarity as to what will happen on this end once the client is returned to this country.  An essential part to this process is also negotiating with U.S. authorities, whether state or federal, to quickly bring the client back to the charging jurisdiction so they do not linger elsewhere.  Ultimately, other resolutions of the case may also be negotiated while the extradition process is ongoing.

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[1] http://www.interpol.int/INTERPOL-expertise/Notices.  “The legal basis for a Red Notice is an arrest warrant or court order issued by the judicial authorities in the country concerned. Many of INTERPOL's member countries consider a Red Notice to be a valid request for provisional arrest.”  http://www.interpol.int/INTERPOL-expertise/Notices;   “This is particularly true if the requesting country and requested country have a bilateral or multilateral extradition treaty or convention in force with each other. It is even more so if the treaty or convention allows for the use of Interpol channels to forward such requests.”  http://interpolnoticeremoval.com/interpol-red-notice-removal-lawyers/

[2] “Extradition Procedures and Required Documents: (2) The request for extradition shall be accompanied by: (a) Documents, statements, or other evidence which describe the identity and probable location of the person sought; (b) A statement of the facts of the case; (c) The texts of the laws describing the essential elements and the designation of the offense for which extradition is requested; (d) The texts of the laws describing the punishment for the offense; and (e) The texts of the laws describing the time limit on the prosecution or the execution of punishment for the offense.”  Treaty, Article 9.

[3] “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.”  United States Attorneys Manual, 9-15.210 Role of the Office of International Affairs.

[4] United States Attorney Manual, 9.15-250 Procedure After Assembling Documents.

[5] Id., 9.15-300 Procedure In the Foreign Country.

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