In an article last month,1 we described how the United States, unlike many other countries, extradites its own citizens as a matter of course where certain legal requirements are met by requesting states. In short, if a foreign country makes a proper request for extradition through appropriate diplomatic channels, federal judges are permitted only a limited review of the request. Judges must consider basic issues such as whether the court has jurisdiction and whether an applicable extradition treaty is in force. Judges also must determine whether the crime for which the individual faces prosecution in the foreign country is also a crime in the United States and whether the request makes a sufficient showing of probable cause that the individual may have committed the crime.
If the request passes this review, the judge’s inquiry is at an end and the judge must certify the individual’s extraditability to the U.S. Secretary of State. If an individual makes humanitarian arguments, such as the likelihood of being tortured in the requesting country, the “rule of non-inquiry” prohibits judges from undertaking such considerations. Instead, once the judge certifies the individual’s extraditability to the Department of State, only the Secretary of State undertakes such considerations. Judges are not to inquire into the Secretary’s determination and can only require that the Secretary certify that she has discharged her duty to consider any such allegations. The Secretary thus is the last hope for any individual ordered extradited out of the United States. This article examines the Secretary of State’s exercise of her discretion after judges have certified individuals as extraditable and considers what opportunities this may present for individuals seeking to avoid extradition.
