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The president of a U.S. company goes abroad on a business trip and learns that his name is being raised in a criminal prosecution of dubious validity � one that may have been trumped up for political reasons in a country lacking many of the legal safeguards of the United States. The executive soon returns home and breathes a sigh of relief. Although his company may face some continuing problems doing business in that nation, he believes he’s safe and sound on friendly soil. He’s wrong. Those who travel abroad for business or pleasure, beware: Even after your return to the United States, you can be extradited to face criminal charges for acts committed on foreign soil and in violation of foreign law. As part of its treaty obligations, our government regularly delivers U.S. citizens to face trial abroad, often on little more than the say-so of a foreign government. You can be arrested by the FBI, jailed for months or years, and eventually shipped overseas, all without any meaningful protection of your right to due process of law. Those who even know about the federal extradition statute likely assume that it applies only to “fugitives.” That is technically true, but the definition of “fugitive” under this statute is not limited to those who actually flee justice. It includes anyone who is not found in the country that brings the charges, no matter how innocent the reason for the person’s absence � including the fact that he lives in the United States. It would also be logical to assume that the United States generally extradites only foreign nationals who are arrested here to face trial in their home countries. But that assumption would be incorrect as well. U.S. citizens have no more protection against extradition than foreign nationals who are running from prosecution one step ahead of the authorities. Unlike the governments of many other countries, which rarely, if ever, extradite their own citizens to the United States to face trial, our State Department makes no such distinction. You might think that the State Department would willingly sign off on the extradition of, say, internationally infamous drug lords but hesitate in the face of much dodgier accusations of criminal conduct. You would have misjudged U.S. officials again. When multinational business brought U.S. companies into contact primarily with long-standing democracies in Western Europe, where legal traditions and protections are at least the equal of our own, the risks of being unfairly called to account in a foreign country were perhaps more manageable. But today, U.S. companies do business everywhere, including in countries with little or no democratic tradition, highly politicized prosecutors’ offices, and few protections for the accused. And the United States has extradition treaties with a frighteningly long list of these countries. Concerns about extradition are also amplified by our government’s twin international wars � on terrorism and on narcotics. As part of both, the United States has made a tremendous effort to extradite from other countries suspects wanted for alleged violations of U.S. criminal law. To secure the cooperation of these other governments, the United States must in turn be willing � sometimes too willing � to dispatch its own citizens. The government’s effort over the past year to extradite Chicago businessman Edward Mazur to Poland is a striking case in point. Poland has become one of our closest European allies, participating in the “coalition of the willing” in the Iraq War and recently agreeing to a U.S. missile shield on its territory. Mazur, who holds dual U.S. and Polish citizenship, was wanted in a highly politicized, on-again/off-again prosecution for supposedly soliciting the murder of a high-ranking Polish law enforcement official. From the start, the legal case against him was paper-thin, relying largely on the testimony of one low-level mob hit man who repeatedly changed his story. But the diplomatic case for extraditing Mazur was rather stronger. Indeed, it would be naive to think that maintaining a cordial relationship with Poland � not to mention the fact that our government was, at the exact same time, seeking extradition of an Iranian from Poland on terrorism-related export control violations � had nothing to do with Uncle Sam’s willingness to pursue extradition of Mazur. The way in which our government conducts extradition proceedings is little short of shocking to those familiar with the usual concepts of due process. The foreign government begins the process by submitting a request for extradition to the State Department, along with witness statements or other documentary evidence. For reasons of international comity, these requests seem to receive little substantive scrutiny of their merits by the State or Justice departments. In fact, the entire process is heavily weighted against the accused. A U.S. citizen facing an extradition warrant will be arrested by the FBI and held in federal custody without any meaningful chance at bail. Statements in judicial opinions written a century ago have been taken by federal courts to mean that the accused must be detained pending extradition unless he can show “special circumstances.” In reality, the courts recognize essentially no such circumstances, so the standard is nothing but a euphemism for detention without bail. In domestic cases, anyone accused of a federal criminal offense, whether or not he is a citizen of the United States, must be released on bail unless the prosecution can show that he is a flight risk or a danger to the community. By contrast, no matter how clear the proof that an extradition target is neither likely to flee nor dangerous to anyone, release on bail is not available. In other words, a U.S. citizen sought by a foreign government for extradition has far less chance of being released while still in the United States than a resident alien awaiting trial for a similar offense under U.S. law. As a practical matter, this means that the accused either sits for years in a U.S. jail while fighting the extradition or gives up the right to contest extradition at all. If the accused decides to fight, that’s when things get really scary. There is no extradition trial, only a hearing, usually before a federal magistrate judge, with all the rules stacked against the accused. The Justice Department, acting as a proxy for foreign prosecutors, simply submits to the court the written statements that were gathered by the foreign government. There are no live witnesses who can be cross-examined. The assistant U.S. attorney prosecuting the case has never talked to any witnesses or seen the case file, except for the statements the foreign government chooses to send. There is no opportunity for the accused to conduct any meaningful investigation or discovery into how those statements were obtained or to learn if there is evidence that undermines the government’s case. To justify extradition, the foreign government need only provide enough evidence to establish “probable cause” that the accused committed the crime. This is a very low threshold, easily met with a witness statement implicating the accused. And once that standard is met, our government will blithely send off an American for trial in a foreign country. Worse yet, in fighting the claim that probable cause has been met, the accused is bound by a rule that sounds as though it were fashioned by Franz Kafka: The accused is not permitted to submit any evidence that contradicts the government’s case. Only “explanatory” evidence is allowed. In the usual run of criminal cases in the United States, the right to challenge the prosecution’s evidence lies at the very heart of due process. But in extradition proceedings, evidence offered by the defense is barred because of its relevance. The hollow excuse is that the accused will get his day in court in the foreign country. That, of course, depends on where he is extradited to and why the extradition is being sought. Not all countries have independent judicial systems, and foreign prosecutors have been known to place political concerns ahead of justice. Moreover, the accused enjoys no right of appeal from a ruling in favor of extradition. His only recourse is a habeas corpus petition, which almost never succeeds. Once the habeas petition is denied, it is up to the secretary of state to make the final decision on extradition. Don’t hold your breath: The secretary has denied extradition in only a handful of cases in the history of our republic. In short, once the extradition machinery has begun rolling, the accused is about as likely to get hit by lightning as he is to avoid being sent to trial in a foreign country. As it happened, Edward Mazur was one of the lucky few. The magistrate judge ruled on July 20 that he was not extraditable because the government had failed to meet even the low threshold of probable cause. The judge described the evidence as “patently unreliable.” Our extradition process is a hundred years out of date. It fails to recognize that we have extradition treaties not only with longtime democracies with well-developed legal systems but also with newly democratic countries still shedding judicial bad habits and with countries that are completely undemocratic. It fails to recognize decades of developments in our own concepts of due process. It puts international comity in front of the supposedly inalienable right of our citizens to liberty. Meaningful reform is possible, however, if Congress is willing to act. First, the same principles of detention and bail that are applied in every other case in the federal criminal system should be applied in the extradition process. There is absolutely no reason why a U.S. citizen facing extradition should be treated any differently than a U.S. citizen facing domestic criminal charges. Second, the accused must be given a fair opportunity to defend himself. He should be permitted to see the prosecution’s file, to obtain discovery of exculpatory information, and to introduce evidence that contradicts the government’s case. Finally, before setting an extradition in motion, the State and Justice departments should be required to engage in a more searching analysis of the foundations for the foreign prosecution, including any potential political motivations that might be driving it. Instead of simply vindicating the interests of other nations, the extradition process must be revamped to provide meaningful protection to U.S. citizens accused of foreign crimes. It sounds almost too simple to say: Americans have a right to be treated justly by their own government. Chris C. Gair is a partner in the Chicago office of Jenner & Block. He was chief trial counsel for Edward Mazur in the case described. This piece originally appeared in Legal Times, a Recorder affiliate.

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