Extradition

The transfer of an accused from one state or country to another state or country that seeks to place the accused on trial.

United States and United Kingdom Ratify New Extradition Treaty

Three years after negotiating its provisions, the United States Senate ratified a new extradition treaty with the United Kingdom in September 2006. The new treaty replaces two others that have been the subject of controversy for several years. Of particular interest to commentators are revised provisions related to the extradition of those who are accused of committing political offenses.

The U.S. and the U.K. negotiated the first modern version of extradition treaty between the two nations on June 8, 1972. The Senate did not ratify it until June 21, 1976, and the treaty was finally entered into force on January 21, 1977. One of the major causes of controversy over the original statute was the so-called "political offense exception." Article V of the original treaty provided, "Extradition shall not be granted if … (i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; or (ii) the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offense of a political character."

Several other extradition treaties include political offense exceptions, and federal courts in the U.S. had developed judicial standards for determining whether a person facing extradition was accused of committing a political offense. Under this judicial standard, the treaties precluded extradition on the basis of criminal charges growing out of conduct "committed in the course of and incidental to a violent political disturbance, such as war, revolution, or rebellion." Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981).

A controversy arose surrounding the treatment of four members of the Provisional Irish Republican Army. Federal courts in New York and California refused to extradite these individuals based on the political offense exception. The uproar that ensued led the U.S. and the U.K. to negotiate a supplemental treaty, which was signed on June 25, 1985. This supplemental treaty curtailed the political offense exception and also revised other provisions, including easing the statute of limitations in the original treaty. The U.S. Senate produced a compromise under which the political offense exception allowed the extradition of terrorists in most cases, among other changes. The effect of the changes on the individuals from the Provisional Irish Republican Army was that all four were returned to Ireland, either through extradition or through deportation.

Extradition treaties that were ratified after the Supplemental Treaty of 1985 have generally had more most exemption to the extradition bar for political offenses. Most of these new treaties allow extradition where the political offense involves a crime of violence against the head of a state or that person's family. Likewise, these treaties permit extradition when the crime is covered by a treaty that obligates a nation to extradite the offender. Some extradition treaties, however, have retained the exemptions to the political offense ban that are found in the Supplemental Treaty.

The United States and the United Kingdom entered into negotiations to draft a new treaty that would replace both the 1977 version and the Supplemental Treaty of 1985. On March 31, 2003, former U.S. Attorney General John Ashcroft and U.K. Home Secretary David Blunkett announced that the two nations had agreed to the new pact, pending the ratification by appropriate bodies of the two governments. Later that year, the United Kingdom incorporated the treaty into British law through the passage of the Extradition Act of 2003.

Under the terms of the 2003 agreement, federal courts in the U.S. would retain the authority to bar extradition requests when the request fails to meet the demands of the treaty. Moreover, the treaty does not require the United States to take any action that is forbidden by the U.S. Constitution. The accord urges the U.S. Secretary of State to consider any requests for the extradition of a fugitive who has been previously acquitted, and it requires annual reports from the Secretary of State about the number and disposition of extradition requests brought under the treaty.

The 2003 agreement received criticism on a number of grounds. Most notably, the treaty eliminates the ban on extradition for political offenses for any offense that allegedly involves violence or weapons. The treaty also transfers responsibility for determination of whether a request is politically-motivated from the judiciary to the executive branch. Moreover, the agreement eliminates any statute of limitations.

A controversy surrounding three bankers led to the ratification of the treaty by the United States. Three bankers associated with NatWest were accused of fraud offenses in connection with Enron, the now infamous energy trading company that went bankrupt in 2001. According to allegations, the three conspired with former Enron executives over the sale of part of the company in 2000, which earned them a total of $7.3 million. The U.S. wanted to extradite the three bankers, but because the U.K. had ratified the treaty and the U.S. had not, critics in the United Kingdom said that the two nations did not have a reciprocal legal arrangement.

The bankers were extradited during the summer of 2006. In July 2006, British Home Minister Baroness Scotland traveled to the U.S. to urge the U.S. to ratify the 2003 treaty. On September 29, the Senate finally approved the pact. According to Robert Tuttle, the U.S. ambassador to the U.K., "I am extremely gratified at the unanimous support of the United States Senate for this extremely important Treaty. With the Senate's action, we can now have a fully modernized extradition relationship that helps to protect citizens of both of our countries and to improve the administration of justice."

A fact sheet about the extradition treaty is available from the Secretary of State's website at ?http://www.state.gov/p/eur/rls/fs/34885.htm?.