REVISION OF THE EXTRADITION LAWS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP95B00895R000200030008-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 65
• Document Creation Date: December 22, 2016
• Document Release Date: November 7, 2008
• Sequence Number: 8
• Publication Date: February 16, 1983
• Content Type: FORM

Bill No.
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F. let?.1
LEGISLATIVE ANALYSIS
(rtig,
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441e
Report No. Companion No.
S. 220
Title; Exi-radition Act of 1983
Subject:
revision of the extradition laws
Amends.
Contacts:
Chapter 209 of Title 18
Conclusion:
No Agency objection
Agency objection and/or needs amendment
Analysis: As noted by Senator Thurmond in his statement on introduction,
(Januarl, 27, 1983 - S. 220), this bill is virtually the same bill
as passed the Senate in the 97th Congress in August 1982 with only
a few clrifying/drafting changes. As such, it would still give the
Agency two opportunities to make its concerns known in any extradition:
Section 3192 (a) (Attorney General institutes extradition proceedings)
and Section 3196 (Secretary of State determines whether or not
to implement extradition order). As such, there is no Agency objection
to the bill. We need only to continue to monitor it and insure
that these provisions are retained in the bill.
Also, Susan, can you find the House companion?
(See the memoranda I wrote last year on S. 1940 & the House
companion for in depth discussion of above)
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'LUIJVJ
98TH CONGRESS
1ST SESSION
S. 220
1
T25
To amend chapter 209 of title 18, United States Code, relating to extradition, and
for other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 27 (legislative day, JANUARY 25), 1983
Mr. THURMOND introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To amend chapter 209 of title 18, United States Code, relating
to extradition, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Extradition Act of 1983".
4 SEC. 2. Chapter 209 of title 18, United States Code, is
5 amended as follows:
6 (a) Section 3181 is deleted.
7 (b) Section 3182 is redesignated as section "3181".
8 (c) Section 3183 is redesignated as section "3182" and
9 is amended by striking out "or the Panama Canal Zone" in
10 the first sentence.
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1 (d) A new section 3183 is added as follows:
2 "? 3183. Payment of fees and costs
3 "All costs or expenses incurred in any interstate rendi-
4 tion proceeding and apprehending, securing, and transmitting
5 a fugitive shall be paid by the demanding authority.".
6 (e) Sections 3184 through 3195 are deleted.
7 (f) The chapter heading and section analysis are amend-
8 ed to read as follows:
9 "CHAPTER 209?INTERSTATE RENDITION
"3181. Fugitives from State or Territory to State, District, or Territory.
"3182. Fugitives from State, Territory or Possession into extraterritorial jurisdic-
tion of the United States.
"3183. Payment of fees and costs.".
10 SEC. 3. A new chapter 210 of title 18 of the United
11 States Code is added as follows:
12 "CHAPTER 210?INTERNATIONAL EXTRADITION
"Sec.
"3191. Extradition authority in general.
"3192. Initial procedure.
"3193. Waiver of extradition hearing and consent to removal.
"3194. Extradition hearing.
"3195. Appeal.
"3196. Surrender of a person to a foreign state.
"3197. Receipt of a person from a foreign state.
"3198. General provisions for chapter.
13 "? 3191. Extradition authority in general
14 "The United States may extradite a person to a foreign
15 state pursuant to this chapter only if-
16 "(a) there is a treaty concerning extradition be-
17 tween the United States and the foreign state; and
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1 "(b) the foreign state requests extradition within
2 the terms of the applicable treaty.
3 "? 3192. Initial procedure
4 "(a) IN GENERAL.?The Attorney General may file a
5 complaint charging that a person is extraditable. The Attor-
6 ney General shall file the complaint in the United States dis-
7 trict court-
8 "(1) for the district in which the person may be
9 found; or
10 "(2) for the District of Columbia, if the Attorney
11 General does not know where the person may be
12 found.
13 "(b) COMPLAINT.?The complaint shall be made under
14 oath or affirmation, and shall specify the offense for which
15 extradition is sought. The complaint-
16 "(1) shall be accompanied by a copy of the re-
17 quest for extradition and by the evidence and docu-
18 ments required by the applicable treaty; or
19 "(2) if not accompanied by the materials specified
20 in paragraph (1)-
21 "(A) shall contain-
22 "(i) information sufficient to identify the
23 person sought;
24 "(ii) a statement of the essential facts
25 constituting the offense that the person is be-
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lieved to have committed, or a statement
that an arrest warrant for the person is out-
standing in the foreign state; and
"(iii) a description of the circumstances
that justify the person's arrest; or
,`(B) shall contain such other information as
7 is required by the applicable treaty;
8 and shall be supplemented before the extradition hear-
9 ing by the materials specified in paragraph (1).
10 "(c) ARREST OR SUMMONS.?Upon receipt of a com-
11 plaint, the court shall issue a warrant for the arrest of the
12 person sought, or, if the Attorney General so requests, a
13 summons to the person to appear at an extradition hearing.
14 The warrant or summons shall be executed in the manner
15 prescribed by rule 4(d) of the Federal Rules of Criminal Pro-
16 cedure. A person arrested pursuant to this section shall be
17 taken without unnecessary delay before the nearest available
18 court for an extradition hearing.
19 "(d) DETENTION OR RELEASE OF ARRESTED
20 PERSON.-
21 "(1) The court shall order that a person arrested
22 under this section be held in official detention pending
23 the extradition hearing unless the person establishes to
24 the satisfaction of the court that special circumstances
25 require his release.
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1 "(2) Unless otherwise provided by the applicable
2 treaty, if a person is detained pursuant to paragraph
3 (1) in a proceeding in which the complaint is filed
4 under subsection (b)(2), and if, within sixty days of the
5 person's arrest, the court has not received-
6 "(A) the evidence or documents required by
7 the applicable treaty; or
8 "(B) notice that the evidence or documents
9 have been received by the Department of State
10 and will promptly be transmitted to the court;
11 the court may order that the person be released from
12 official detention pending the extradition hearing.
13 "(3) If the court orders the release of the person
14 pending the extradition hearing, it shall impose condi-
15 tions of release that will reasonably assure the appear-
16 ance of the person as required and the safety of any
17 other person and the community.
18 "? 3193. Waiver of extradition hearing and consent to
19 removal
20 "(a) INFORMING THE COURT OF WAIVER AND CON-
21 SENT.?A person against whom a complaint is filed may
22 waive the requirements of formal extradition proceedings, in-
23 cluding an order of surrender, by informing the court that he
24 consents to removal to the foreign state.
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1 "(b) INQUIRY BY THE COURT.?The court, upon being
2 informed of the person's consent to removal, shall-
3 "(1) inform the person that he has a right to con-
4 suit with counsel and that, if he is financially unable to
5 obtain counsel, counsel may be appointed to represent
6 him pursuant to section 3006A; and
7 "(2) address the person to determine whether his
8 consent is-
9 "(A) voluntary, and not the result of a threat
10 or other improper inducement; and
11 "(B) given with full knowledge of its conse-
12 quences, including the fact that it may not be re-
13 yoked after the court has accepted it.
14 "(c) FINDING OF CONSENT AND ORDER OF RE-
15 MOVAL.?If the court finds that the person's consent to re-
16 moval is voluntary and given with full knowledge of its con-
17 sequences, it shall, unless the Attorney General notifies the
18 court that the foreign state or the United States objects to
19 such removal, order the surrender of the person to the cus-
20 tody of a duly appointed agent of the foreign state requesting
21 extradition. The court shall order that the person be held in
22 official detention until surrendered.
23 "(d) LIMITATION ON DETENTION PENDING REMOV-
24 AL.?A person whom the court orders surrendered pursuant
25 to subsection (c) may, upon reasonable notice to the Secre-
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1 tary of State, petition the court for release from official de-
2 tention if, excluding any time during which removal is
3 delayed by judicial proceedings, the person is not removed
4 from the United States within thirty days after the court or-
5 dered the person's surrender. The court may grant the peti-
6 tion unless the Secretary of State, through the Attorney
7 General, shows good cause why the petition should not be
8 granted.
9 "? 3194. Extradition hearing
10 "(a) IN GENERAL.?The court shall hold a hearing to
11 determine whether the person against whom a complaint is
12 filed is extraditable as provided in subsection (d), unless the
13 hearing is waived pursuant to section 3193. The court does
14 not have jurisdiction to determine-
15 "(1) the merits of the charge against the person
16 by the foreign state;
17 "(2) whether the foreign state is seeking the ex-
18 tradition of the person for the purpose of prosecuting
19 or punishing the person for his political opinions, race,
20 religion, or nationality; or
21 "(3) whether the extradition of the person to the
22 foreign state seeking his return would be incompatible
23 with humanitarian considerations.
24 The hearing shall be held as soon as practicable after the
25 arrest of the person or issuance of the summons.
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1 "(b) RIGHTS OF THE PERSON SOUGHT.?The court
2 shall inform the person of the limited purpose of the hearing,
3 and shall inform him that-
4 "(1) he has the right to be represented by counsel
5 and that, if he is financially unable to obtain counsel,
6 counsel may be appointed to represent him pursuant to
7 section 3006A; and
8 "(2) he may cross-examine witnesses who appear
9 against him and may introduce evidence in his own
10 behalf with respect to the matters set forth in subsec-
11 tion (d).
12 "(c) EVIDENCE.-
13 "(1) A deposition, warrant, or other document, or
14 a copy thereof, is admissible as evidence in the hearing
15 if-
16 "(A) it is authenticated in accordance with
17 the provisions of an applicable treaty or law of
18 the United States;
19 "(B) it is authenticated in accordance with
20 the applicable law of the foreign state, and such
21 authentication may be established conclusively by
22 a showing that-
23 "(i) a judge, magistrate, or other appro-
24 priate officer of the foreign state has signed a
25 certification to that effect; and
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1 "(ii) a diplomatic or consular officer of
2 the United States who is assigned or accred-
3 ited to the foreign state, or a diplomatic or
4 consular officer of the foreign state who is
5 assigned or accredited to the United States,
6 has certified the signature and position of the
7 judge, magistrate, or other officer; or
8 "(C) other evidence is sufficient to enable the
9 court to conclude that the document is authentic.
10 "(2) A certificate or affidavit by an appropriate of-
11 ficial of the Department of State is admissible as evi-
12 dence of the existence of a treaty or its interpretation.
13 "(3) If the applicable treaty requires that such
14 evidence be presented on behalf of the foreign state as
15 would justify ordering a trial of the person if the of-
16 fense had been committed in the United States, the
17 requirement is satisfied if the evidence establishes prob-
18 able cause to believe that an offense was committed
19 and that the person sought committed it.
20 "(d) FINDINGS.?The court shall find that the person is
21 extraditable if it finds that-
22 "(1) there is probable cause to believe that the
23 person arrested or summoned to appear is the person
24 sought in the foreign state;
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1 "(2) the evidence presented is sufficient to support
2 the complaint under the provisions of the applicable
3 treaty;
4 "(3) no defense to extradition specified in the ap-
5 plicable treaty, and within the jurisdiction of the court,
6 exists; and
7 "(4) the act upon which the request for extradi-
8 tion is based would constitute an offense punishable
9 under the laws of-
10 "(A) the United States;
11 "(B) the State where the fugitive is found; or
12 "(C) a majority of the States.
13 The court may base a finding that a person is extradit-
14 able upon evidence consisting, in whole or in part, of
15 hearsay or of properly certified documents.
16 "(e) POLITICAL OFFENSES AND OFFENSES OF A PO-
17 LITICAL CHARACTER.?The court shall not find the person
18 extraditable after a hearing under this section if the court
19 finds that the person has established by clear and convincing
20 evidence that any offense for which such person may be sub-
21 ject to prosecution or punishment if extradited is a political
22 offense or an offense of a political character. For the purposes
23 of this subsection, the terms 'political offense' and 'offense of
24 a political character'-
25 "(1) do not include?
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1 "(A) an offense within the scope of the Con-
2 vention for the Suppression of Unlawful Seizure
3 of Aircraft, signed at The Hague on December
4 16, 1970;
5 "(B) an offense within the scope of the Con-
6 vention for the Suppression of Unlawful Acts
7 Against the Safety of Civil Aviation, signed at
8 Montreal on September 23, 1971;
9 "(C) a serious offense involving an attack
10 against the life, physical integrity, or liberty of in-
11 ternationally protected persons (as defined in sec-
12 tion 1116 of this title), including diplomatic
13 agents;
14 "(D) an offense with respect to which a mu!-
15 tilateral treaty obligates the United States to
16 either extradite or prosecute a person accused of
17 the offense;
18 "(E) an offense that consists of the manufac-
19 ture, importation, distribution, or sale of narcotics
20 or dangerous drugs;
21 "(F) an offense that consists of rape;
22 "(G) an attempt or conspiracy to commit an
23 offense described in subparagraphs (A) through (F)
24 of this paragraph, or participation as an accom-
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1 plice of a person who commits, attempts, or con-
2 spires to commit such an offense.
3 "(2) Except in extraordinary circumstances, do
4 not include-
5 "(A) an offense that consists of homicide, as-
6 sault with intent to commit serious bodily injury,
7 kidnaping, the taking of a hostage, or a serious
8 unlawful detention;
9 "(B) an offense involving the use of a firearm
10 (as such term is defined in section 921 of this
11 title) if such use endangers a person other than
12 the offender;
13 "(C) an attempt or conspiracy to commit an
14 offense described in subparagraphs (A) or (B) of
15 this paragraph, or participation as an accomplice
16 of a person who commits, attempts, or conspires
17 to commit such an offense.
18 The court shall not take evidence with respect to, or other-
19 wise consider, an issue under this subsection until the court
20 determines the person is otherwise extraditable. Upon motion
21 of the Attorney General or the person sought to be extra-
22 dited, the United States district court may order the determi-
23 nation of any issue under this subsection by a judge of such
24 court.
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1 "(f) CERTIFICATION OF FINDINGS TO THE SECRETARY
2 OF STATE.-
3 "(1) If the court finds that the person is extradit-
4 able, it shall state the reasons for its findings as to
5 each charge or conviction, and certify its findings, to-
6 gether with a transcript of the proceedings, to the Sec-
7 retary of State. The court shall order that the person
8 be held in official detention until surrendered to a duly
9 appointed agent of the foreign state, or until the Secre-
10 tary of State declines to order the person's surrender.
11 "(2) If the court finds that the person is not ex-
12 traditable, it shall state the reasons for its findings as
13 to each charge or conviction, and certify the findings,
14 together with such report as the court considers appro-
15 priate, to the Secretary of State. The Attorney Gen-
16 eral may commence a new action for extradition of the
17 person only with the agreement of the Secretary of
18 State.
19 "? 3195. Appeal
20 "(a) IN GENERAL.?Either party may appeal, to the
21 appropriate United States court of appeals, the findings by
22 the district court on a complaint for extradition. The appeal
23 shall be taken in the manner prescribed by rules 3 and 4(b) of
24 the Federal Rules of Appellate Procedure, and shall be heard
25 as soon as practicable after the filing of the notice of appeal.
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1 Pending determination of the appeal, the district court shall
2 stay the extradition of a person found extraditable.
3 "(b) DETENTION OR RELEASE PENDING APPEAL.?If
4 the district court found that the person sought is-
5 "(1) extraditable, it shall order that the person be
6 held in official detention pending determination of the
7 appeal, or pending a finding by the court of appeals
8 that the person has established that special circum-
9 stances require his release;
10 "(2) not extraditable, it shall order that the person
11 be released pending determination of an appeal unless
12 the court is satisfied that the person is likely to flee or
13 to endanger the safety of any other person or the
14 community.
15 If the court orders the release of a person pending determina-
16 tion of an appeal, it shall impose conditions of release that
17 will reasonably assure the appearance of the person as
18 required and the safety of any other person and the commu-
19 nity.
20 "(c) SUBSEQUENT REVIEW.?No court has jurisdiction
21 to review a finding that a person is extraditable unless the
22 person has exhausted his remedies under subsection (a). If
23 the person files a petition for habeas corpus or for other
24 review, he shall specify whether the finding that he is extra-
25 ditable has been upheld by a court, and, if so, shall specify
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1 the court, the date, and the nature of each such proceeding.
2 A court does not have jurisdiction to entertain a person's
3 petition for habeas corpus or for other review if his commit-
4 ment has previously been upheld, unless the court finds that
5 the grounds for the petition or appeal could not previously
6 have been presented.
7 "? 3196. Surrender of a person to a foreign state
8 "(a) RESPONSIBILITY OF THE SECRETARY OF
9 STATE.?If a person is found extraditable pursuant to sec-
10 tion 3194, the Secretary of State, upon consideration of the
11 provisions of the applicable treaty and this chapter-
12 "(1) may order the surrender of the person to the
13 custody of a duly appointed agent of the foreign state
14 requesting extradition;
15 "(2) may order such surrender of the person con-
16 tingent on the acceptance by the foreign state of such
17 conditions as the Secretary considers necessary to
18 effectuate the purposes of the treaty or the interest of
19 justice; or
20 "(3) may decline to order the surrender of the
21 person if the Secretary is persuaded that-
22 "(A) the foreign state is seeking extradition
23 of the person for the purpose of prosecuting or
24 punishing the person because of his political opin-
25 ions, race, religion, or nationality; or
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1 "(B) the extradition of the person to the for-
2 eign state seeking his return would be incompati-
3 ble with humanitarian considerations.
4 The Secretary may order the surrender of a person who is a
5 national of the United States unless such surrender is
6 expressly forbidden by the applicable treaty or by the laws of
7 the United States. A decision of the Secretary under para-
8 graph (1), (2), or (3) is a matter solely within the discretion of
9 the Secretary and is not subject to judicial review: Provided,
10 however, That in determining the application of paragraph
11 (3), the Secretary shall consult with the appropriate bureaus
12 and offices of the Department of State, including the Bureau
13 of Human Rights and Humanitarian Affairs.".
14 "(b) NOTICE OF DECISION.?The Secretary of State,
15 upon ordering a person's surrender or denying a request for
16 extradition in whole, or in part, shall notify the person
17 sought, the diplomatic representative of the foreign state, the
18 Attorney General, and the court that found the person extra-
19 ditable. If the Secretary orders the person's surrender, he
20 also shall notify the diplomatic representative of the foreign
21 state of the time limitation on the person's detention that is
22 provided by subsection (c)(2).
23 "(c) LIMITATION ON DETENTION PENDING DECISION
24 OR REMOVAL.?A person who is found extraditable pursuant
25 to section 3194 may, upon reasonable notice to the Secretary
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1 of State, petition the court for release from official detention
2 if, excluding any time during which removal is delayed by
3 judicial proceedings-
4 "(1) the Secretary does not order the person's
5 surrender, or decline to order the person's surrender,
6 within forty-five days after his receipt of the court's
7 findings and the transcript of the proceedings; or
8 "(2) the person is not removed from the United
9 States within thirty days after the Secretary ordered
10 the person's surrender.
11 The court may grant the petition unless the Secretary of
12 State, through the Attorney General, shows good cause why
13 the petition should not be granted.
14 "? 3197. Receipt of a person from a foreign state
15 "(a) APPOINTMENT AND AUTHORITY OF RECEIVING
16 AGENT.?The Attorney General shall appoint an agent to
17 receive, from a foreign state, custody of a person accused of a
18 Federal, State, or local offense. The agent shall have the
19 authority of a United States marshal. The agent shall convey
20 the person directly to the Federal or State jurisdiction that
21 sought his return.
22 "(b) TEMPORARY EXTRADITION TO THE UNITED
23 STATES.?If a foreign state delivers custody of a person
24 accused of a Federal, State, or local offense to an agent of
25 the United States on the condition that the person be re-
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1 turned to the foreign state at the conclusion of criminal pro-
2 ceedings in the United States, the Bureau of Prisons shall
3 hold the person in custody pending the conclusion of the pro-
4 ceedings, and shall then surrender the person to a duly ap-
5 pointed agent of the foreign state. The return of the person to
6 the foreign state is not subject to the requirements of this
7 chapter.
8 "? 3198. General provisions for chapter
9 "(a) DEFINITIONS.?As used in this chapter-
10 "(1) 'court' means
11 "(A) a United States district court estab-
12 lished pursuant to section 132 of title 28, United
13 States Code, the District Court of Guam, the Dis-
14 trict Court of the Virgin Islands, or the District
15 Court of the Northern Mariana Islands; or
16
17 to conduct an extradition proceeding;
18 "(2) 'foreign state', when used in other than a
19 geographic sense, means the government of a foreign
20 state;
21 "(3) 'foreign state', when used in a geographic
22 sense, includes all territory under the jurisdiction of a
23 foreign state, including a colony, dependency, and con-
24 stituent part of the state; its air space and territorial
25 waters; and vessels or aircraft registered in the state;
"(B) a United States magistrate authorized
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1 "(4) 'treaty' includes a treaty, convention, or
2 international agreement, bilateral or multilateral, that
3 is in force after advice and consent by the Senate; and
4 "(5) 'warrant', as used with reference to a foreign
5 state, means any judicial document authorizing the
6 arrest or detention of a person accused or convicted of
7 a crime.
8 "(b) PAYMENT OF FEES AND COSTS.?ThileSS other-
9 wise specified by treaty, all transportation costs, subsistence
10 expenses, and translation costs incurred in connection with
11 the extradition or return of a person at the request of-
12 "(1) a foreign state, shall be borne by the foreign
13 state unless the Secretary of State directs otherwise;
14 "(2) a State, shall be borne by the State; and
15 "(3) the United States, shall be borne by the
16 United States.".
17 SEC. 4. This Act shall take effect on the first day of the
18 first month after enactment, and shall be applicable to extra-
19 dition and rendition proceedings commenced thereafter.
0
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S 408 CONGRESSIONAL RECORD ? SENATE January 27, 198S
daily by organized crime, is the so-
called arson-for-profit schemes. Last
Congress, in response to the problems
with arson fraud brought to light in
previous hearings by the Senate Judi-
ciary Subcommittee on Criminal Jus-
tice, I introduced a bill?S. 1386, 97th
Congress, 1st session?to provide l'ed-
eral criminal penalties for the more se-
rious frauds of this type. I am today
introducing the same measure to pro-
vide a vehicle to again focus our atten-
tion on one approach to help deal with
the problem.
Mr. President, this legislation would
make it a Federal crime punishable by
a fine of $250,000 or imprisonment for
not more than 10 years, or both, to
engage in conduct in furtherance of a
fraudulent scheme that affects inter-
state commerce and involves the ob-
taining of insurance proceeds of
$100,000 or more by arson. This would
supplement the provisions of the Anti-
Arson Act enacted last Congress?
Public Law 97-298?that added the
crime of arson in the FBI major crime
reports and provided a more flexible
standard for application of current ex-
plosive statutes.
Every reasonable weapon against
arson should be made available to the
law enforcement community. As I
noted last Congress. arson is a unique
crime. It generally occurs with no eye-
witnesses. Evidence of the crime is dif-
ficult to ascertain and often destroyed
in the course of the fire. Investigative
resources needed to determine the
origin and cause of a fire are frequent-
ly beyond the capability of most juris-
dictions. Arson-for-profit cases go even
further because they usually involve
detailed planning and extensive cover-
up activities. Losses from arson fraud
are estimated at over $1.25 billion a
year and increasing.
The Federal Bureau of Investigation
has recognized the growth of arson
fraud by organized crime and is devot-
ing substantial resources to deal with
these crimes. Unfortunately, the Fed-
eral law is not adequate to meet the
problem. Hopefully, this bill would
help fill this gap.
The bill follows:
S. 219
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That chap-
ter 5 of title 19 of the United States Code is
amended by adding at tile end thereof a new
section as follows:
582. Arson in executing a scheme to defraud
"(a) Whoever, having devised or intending
to devise a scheme or artifice to defraud or
to obtain property of another by means of a
false or fraudulent pretense, representation,
or promise, engages in conduct with intent
to execute such scheme or artifice and the
scheme or artifice affects interstate com-
merce and involves the obtaining of insur-
ance proceeds of $100,000 or more by arson
shall be fined not more than 9250,900 or im-
prisoned not more than ten years, or both.
"(b) As used in this section, 'arson' means
the substantial damage of a building, dwell-
famor structure by fire or explosion.".
Mr. THURMOND. Mr. President, I
reintroducing today a major ad-
ministration-supported bill to modern-
ize the international extradition proce-
dures of the United States.-"hisiers-
lation has been under development for
some 4 years under the leadership of
both the Reagan and Carter adminis-
trations and ..was.eassitissoalwolarmahe
.fiematm-os-13...5945-issa.?anglanak The
purpose is to modernize the conceded
obsolete provisions of current law
dealing with international extradition.
Following hearings. in the 97th Con-
gress, the Senate Committee on the
Judiciary, on April 15. 1182, reported
S. 1940 (S. Rept. No. 97-331). with sev-
eral' amendments to the Senate with-
out a dissenting vote. The bill was
then sequentially referred to the
Senate Committee on Foreign Rela-
tions. On May 19, 1982, the Senate
Committee on Foreign Relations re-
ported the bill to the Senate with
some suggestions for further improv-
ing the bill. (S. Rept. No. 97-475)4er4g
Alioswislispiadiirersi040.4viah.-errtend-
Anssio.egrossible-4mobolia?411enolma-eem-
nsiiissoriplanirwesimesedsiapahookienste
Asaniaaigiasimierielianglaplwarrin-
.trackaging.tadas4s.Lbak.ammagatifitiftst
named... tba-Saniita-b2...aaisust..4.282.
..witifeenhpqr fevrelin4tyingsrmargonima-
4.icuaalAbibaing.alaaavas.
Mr. President, the House of Repre-
sentatives also made major strides last
Congress in processing a companion
bill?H.R. 6046. This measure was re-
ported by the House Committee on
the Judiciary (H. Rept. No. 97-627),
but was not considered due to time
constraints on the floor of the House
in the final days of the Congress.
Mr. President, current extradition
statutes have been on the books for
more than a century without signifi-
cant change. Officials responsible for
administering extradition matters for
the United States informed the com-
mittee in hearings that current provi-
sions are increasingly inadequate to
deal with modern problems in control-
ling international crime, including
such serious areas as international il-
licit drug trafficking and terrorism.
Due to a relatively small number of
cases in the past, minor inconven-
iences from deficiencies were a nui-
sance, but tolerable. Today, the
number and complexity of cases have
made such deficiencies a major prob-
lem.
Mr. President, it is unfortunate that
we did not complete action on this leg-
islation last Congress. It is time to
modernize U.S. extradition laws to
comport with the realities of interna-
tional criminal activity. I hope we can
act promptly.
A few of the highlights of the bill
are:
Require the Attorney General to
serve as complainant to extradition
matters, thereby eliminating the possi-
bility of a foreign government?or
someone acting for a foreign govern-
ment--instituting unjustified extradi-
tion proceedings.
Permit an arrest warrant to be
issued when the location of the fugi-
tive is not known, thereby facilitating
law enforcement efforts in locating in-
ternational fugitives.
Permit extradition proceedings to be
commenced by means of a summons
rather than an arrest warrant where
the location of the fugitive is known
and flight is unlikely.
Set standards and conditions for the
release of the alleged fugitive in any
stage of the proceeding, not just prior
to the extradition hearing.
Keep the "political offense" issue as
a matter for the courts, but define the
term to clarify and strengthen the
U.S. response to international terror-
ism.
Permit fugitives to be temporarily
extradited to the United States for
trial or sentencing.
Authorize the Attorney General to
make all arrangements to take custody
of fugitives found extraditable to the
United States by foreign countries.
Mr. President, I ask Unanimous con-
sent that excerpts from both the Judi-
ciary and Foreign Relations Commit-
tee reports on S. 1940 last Congress be
Inserted in the RECORD.
The excerpts and bill follow:
AMENDMENTS TO TITLE 18 OF THE UNITED
STATES CODE RELATING TO INTERNATIONAL
Exrasnrrion
The Committee on the Judiciary, to which
was referred the bill (S. 1940) to amend
chapter 209 of title 18 of the United States
Code, relating to international extradition,
having considered the same, reports favor-
ably thereon and recommends that the bill
pass.
? ? ?
HISTORY OF THE LEGISLATION
Senator Thurmond introduced S. 1839 on
September 18, 1981, to modernize the statu-
tory provisions relating to international ex-
tradition. One day of hearings was held on
October 14, 1981, during which the Commit-
tee heard from the Department of State,
the Department of Justice, a distinguished
professor, and a practicing attorney. The
record was kept open for more than two and
one-half months for other interested per-
sons to submit written statements and com-
ments for the record.' On December 11,
1981, Senator Thurmond introduced a clean
bill?S. 1040?to incorporate several amend-
ments suggested in the hearings, as well as
to make a number of clarifying amend-
ment& S. 1940 differs from S. 1839 in two
significant respects. First, S. 1940 as intro-
duced made it mandatory?rather than dis-
cretionary?for the Secretary of State to
deny extradition when he is persuaded that
the requesting State is seeking the person's
extradition "for a political offense or an of-
fense of a political character, or for the pur-
pose of prosecuting or punishing the person
for his political opinions". Second, as intro-
duced. 8.1940 made it explicit in the statute
that this determination would not be sub-
ject to judicial review.
This bill was the result of several years of
study by the Departments of State and Jus-
tice in cooperation with the professional
staff of the Senate Committee on the Judi-
ciary. It was originally contemplated that
the primary vehicle for modernizing the ex-
tradition laws of the United States would bc
the Federal criminal code legislation. Since
Footnotes at end of report.
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January 27, 1988 CONGRESSIONAL RECORD ? SENATE
the subject matter, however, can be easily
separated out as a package, Senator Thur-
mond elected to follow a two track proce-
dure in this instance; thus, identical provi-
sions to this bill are also included as sub-
chapter B of chapter 32 in the new title 18
in the criminal code bill (S. 1630) reported
by the Committee on January 25, 1982. Leg-
islation separate from the criminal code bill
has the advantage of promoting early appli-
cation of this important reform to an in-
creasing case load involving international
fugitives from justice.
STATEMENT IN GENERAL
Chapter 209 of current title 18 of the
United States code (18 U.S.C. 3181-3195) in-
titled "Extradition" covers both interstate
rendition and international extradition.
This bill would retain chapter 209 for inter-
state rendition provisions and create a new
chapter 210 for international extradition
laws.
International extradition is the process by
which a person located in one nation is ar-
rested and turned over to another nation
for criminal trail or punishment. The new
chapter 210 consists of eight sections. Sec-
tions -3191 through 3196 deal primarily with
requests made to the United States by for-
eign governments and set forth the proce-
dure for determining whether a person lo-
cated in this country should be delivered up
to a foreign power. Section 3197 deals with
the return of a fugitive extradited to the
United States from a foreign nation. Section
3198 contains definitions and a provision on
payment of the expenses incident to extra-
dition. The proposed chapter replaces 18
U.S.C. 3181 and 3184-3195. Other Federal
statutes on extradition, which include 18
U.S.C. 751, 752, and 1502, are not affected
by this legislation.
The provisions of the proposed chapter
substantially alter the present statutory law
for several reasons.
First, many of the statutes on extradition
have been in force without major alteration
since 1882. Several have not been signifi-
cantly changed since 1848. These antiquated
provisions have proven increasingly inad-
equate in dealing with the modern problems
in the international control of crime.
Second, there has been a marked increase
in the number of extradition request re-
ceived and made by the United States in
recent years. Those requests have revealed
problems in the extradition process. More-
over, the requests have generated a number
of published court decisions on constitution-
al and legal issues involved in international
extradition. The judicial interpretation of
the law contained in these court decisions
fills important gaps in the present statutory
law, and should be reflected in any new ex-
tradition legislation.
Third, the United States has concluded
new extradition treaties with many foreign
countries in the past few years. The lan-
guage of the present law is not adequate to
fully implement some of the provisions of
the new treaties, and therefore impedes ful-
fillment by the United States of its interna-
tional obligations.
In summary, the following significant im-
provements in international extradition are
accomplished by S. 1940:
(1) Permits the United States to secure a
warrant for the arrest of a foreign fugitive
even though the fugitive's whereabouts in
the United States is unknown or even if he
Is not in the United States. This warrant
can then be entered into the FBI's NCIC
system so that if the fugitive attempts to
enter the United States or is apprehended
in the United States for other reasons, he
can be identified and arrested immediately
for extradition to the requesting country.
(2) Provides a statutory procedure for
waiver of extradition. This feature protects
a fugitive's rights while facilitating his re-
moval to the requesting country in instances,
in which he is willing to voluntarily go to
the requesting country without a formal ex-
tradition hearing.
(3) Permits both a fugitive and the United
States on behalf of the requesting country
to directly appeal adverse decisions by an
extradition court. Under present law a fugi-
tive can only attack an adverse decision
through habeas corpus. The only option
available to tkie United States acting on
behalf of a requesting country is to ref ile
the extradition complaint with another
magistrate."
(4) Clarifies the applicable standards for
bail at all stages of an extradition case by
adopting standards largely derived from
Federal court cases.
(5) Establishes clear statutory procedures
and standards applicable to all critical
phases of the handling and litigation of a
foreign extradition request.
(6) Makes the determination of whether
the requesting country is seeking extradi-
tion of a person for a "political offense" a
matter for the Secretary of State consistent
with statutory guidelines and subject to ju-
dicial review in the courts of appeal.
(7) Limits access to United States courts in
connection with foreign extradition requests
to cases initiated by the Attorney General.
(8) Permits use of a summons instead of a
warrant of arrest in appropriate cases.
(9) Codified the rights of a fugitive to
legal representation and to a speedy deter-
mination of an extradition request.
(10) Simplifies and rationalizes the proce-
dures for authenticating documents for use
in extradition proceedings.
(11) Facilitates temporary extradition of
fugitives to the United States.
PROVISIONS OF THE BILL AS REPORTED
SECTION 3191?EXTRADITION AUTHORITY IN
GENERAL
1. Present Federal law
18 U.S.C. 3181 states that the present Fed-
eral laws authorizing the extradition of per-
sons from the United States shall continue
In force only if there is a treaty in force
with the foreign nation requesting extradi-
tion. 18 U.S.C. 3184 requires that an extradi-
tion treaty be in force before any court can
conclude that a person may lawfully be ex-
tradited to the foreign country involved. In
addition, 18 U.S.C. 3186 by implication re-
quires that a court find that the person
sought is extraditable before the Secretary
of State may order surrender to the foreign
state. These provisions, read together,
permit the United States to surrender a
person to a foreign country only in accord-
ance with an applicable treaty in force be-
tween the United States and the foreign
country involved.' This principle has
become a settled aspect of United States
practice in international extradition.
2. Provisions of section 3191
Section 3191 of the proposed chapter on
extradition carries forward the basic princi-
ple of the present law. The provision speci-
fies that the United States may extradite a
person in this country only if there is a
treaty concerning extradition in force with
the country requesting extradition, and
only if the request falls within the terms of
that treaty. This section refers to a treaty
"concerning extradition" rather than an
"extradition treaty" because an obligation
to extradite a particular class of offenders is
sometimes included in international agree-
ments other than extradition treaties.*
However, the limitation established by this
section applies only to the surrender of fugi-
S 409
tives pursuant to the chapter, and does not
apply to any other legal process which may
result in a person facing trial or punishment
in another country. Thus, the surrender of
a United States serviceman to foreign au-
thorities for trial in accordance with the re-
ciprocal criminal jurisdiction provisions of a
Status of Forces Agreement,' or the depor-
tation of an alien who happens to face
criminal charges abroad, remain governed
by the treaty provisions and statutes relat-
ing to those processes, and not by this chap-
ter.
SECTION 3192?INITIAL PROCEDURE
This section sets forth the steps to be fol-
lowed in instituting court proceedings neces-
sary for extradition.
1. Present Federal law
Extradition proceedings under 18 U.S.C.
3184 commence when a complaint is filed,
under oath charging that a person has com-
mitted, within the jurisdiction of a foreign
government, any of the crimes for which ex-
tradition is provided under the treaty on ex-
tradition in force between the United States
and that foreign government. There is no
requirement under present law that a
formal diplomatic request for extradition be
made before the complaint is filed.
18 U.S.C. 3184 permits any Federal judge
or justice, or duly authorized Federal magis-
trate, or any judge of a State court of record
of general jurisdiction to receive complaint
and issue warrants of arrest in international
extradition matters. In practice, however,
such cases are almost invariably filed in the
Federal courts.
The present statutory scheme does not
specify by whom a complaint may-be filed in
extradition matters. The rule developed by
the courts appears to be that any person
acting under the authority of the demand-
ing government may filed a complain for ex-
tradition.* Thus, international extradition
cases have been instituted by foreign diplo-
matic or consular representatives,' foreign
policy officers9 and even private citizens
which claim to be acting on behalf of a for-
eign government." This situation has re-
quired the courts to determine, in each case,
whether the person filing the complaint is
"authorized" to act on behalf of the foreign
government." However, in recent year, the
United States Department of Justice has
become the complainant in the overwhelm-
ing majority of extradition cases. The De-
partment of Justice takes this action either
pursuant to provisions in the applicable ex-
tradition treaty requiring the government
of the requested state to provide assistance
to the government seeking extradition" or
pursuant to an informal international agree-
ment for reciprocal legal representation.
The complaint must be filed in a Federal
or State court in whose jurisdiction the fu-
gitive may be found. Unfortunately, in
many cases the international fugitive's loca-
tion in the United States is unknown.
Therefore, no complaint can be filed and no
arrest warrant can be issued. The ability of
United States law enforcement agencies to
locate and apprehend international fugi-
tives is greatly hampered by the lack of an
outstanding arrest warrant or other judicial
process in such cases."
The present statutory scheme contains no
provision for the release of an alleged fugi-
tive on bail pending the extradition hear-
ing." However, the courts have claimed the
inherent right to release an alleged fugitive
on bail pending the extradition hearing in
cases where "special circumstances" require
such release." The standard for release on
bail in extradition cases is more demanding
than in ordinary cases, and a clear presump-
tion against bail is recognized."
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S 410 CONGRESSIONAL RECORD ? SENATE
2. Provisions of section 3192
Subsection (a) permits the Attorney Gen-
eral to file a complaint charging that a fugi-
tive is extraditable in the United States dis-
trict court for the district in which the fugi-
tive may be found. The subsection also per-
mits a complaint to be filed in the United
States District Court for the District of Co-
lumbia if the fugitive's location is not
known. Under this provision, a complaint
could be filed, and an arrest warrant issued,
when the whereabouts of the fugitive in the
United States are still being ascertained, or
when it is believed that the fugitive has not
yet entered the United States but may be
about to do so. The word "found" is intend-
ed to have its usual, non-technical meaning,
and permits extradition proceedings to be
initiated in any district in which the fugitive
can be physically apprehended, without
regard to the manner in which the fugitive
entered the district."
Subsection (b) prescribes the contents of a
complaint for extradition. Since all United
States extradition treaties specify the docu-
ments and quantum of evidence necessary
for surrender, paragraph (1) states that an
extradition complaint is sufficient if it is ac-
companied by the evidence specified in the
treaty and a copy of the formal request for
extradition. Paragraph (2) deals with the
documentation necessary to support a "pro-
visional arrest," the process by which a fugi-
tive from justice is arrested to prevent fur-
ther flight while the foreign government
seeking extradition assembles the necessary
documents and evidence." Subparagraph
(A) of paragraph (2) provides that a com-
plaint will support an arrest under subsec-
tion (c) if it contains information sufficient
to identify the fugitive, explains the circum-
stances necessitating provisional arrest."
and either indicates that a warrant for the
fugitive's arrest is outstanding In the for-
eign state," or outlines the essential facts
indicating that an extraditable crime has
been committed and that the fugitive com-
mitted it. Since many of the extradition
treaties contain articles which expressly set
out requirements for obtaining the arrest of
fugitives," subparagraph (B) of paragraph
(2) also permits the complaint to be filed if
it contains the information required by the
provisions of the applicable treaty.
Subsection (c) obliges the court to issue a
warrant for the arrest of the fugitive upon
receipt of the complaint unless the Attor-
ney General requests that a summons to
appear at the extradition hearing be issued
instead. The subsection requires that the
warrant of arrest be esecuted in accordance
with Rule 4(d) of the Federal Rules of
Criminal Procedure. This means that the
warrant may be executed anywhere in the
United States In the same manner as an or-
dinary Federal warrant of arrest. The sub-
section also requires that the person arrest-
ed be taken without unnecessary delay
before the nearest available Federal court"
for an extradition hearing. The language is
similar to that of Rule 5 of the Federal
Rules of Criminal Procedure, and is intend-
ed to insure that the person arrested under
this section is speedily informed by a judi-
cial officer of the reason for the arrest and
of his rights to counsel, to cross-examine
witnesses, and to introduce evidence on his
behalf. It is not intended to require the dis-
missal of extradition proceedings solely on
the ground that the fugitive arrested for ex-
tradition was taken without unnecessary
delay before a judge or magistrate later de-
termined not to be the "nearest" one. There
is no requirement that the extradition hear-
ing take place in the State in which the fu-
gitive is found," so long as there has been
compliance with the provisions of this chap-
ter.
Subsection (d)(1) provides that a fugitive
arrested for extradition may be released on
bail pending the extradition hearing only if
' he can demonstrate that "special circum-
stances" warrant his release. The provision
continues the approach which has been fol-
lowed by United States courts,' in setting
the standards for release on bail pending an
extradition hearing considerably higher
than the standards for release en bail pend-
ing trial on Federal charges in the United
States. This approach is necessary to assure
that the United States continues to carry
out its treaty obligation to surrender extra-
ditable fugitives. It is anticipated that the
courts will find the "special circumstances"
test satisfied "only in the most pressing cir-
cumstances and only when the require-
ments of justice are absolutely peremp-
tory."22 Such special circumstances might
be found, for instance, when the incarcer-
ation of the fugitive would seriously damage
his health," or would endanger the welfare
of a third party who is wholly dependent
upon the fugitive for care." It is anticipated
that these circumstances would rarely be
encountered.
Subsection (d)(3) provides that even if
special circumstances are found, the release
of the fugitive shall be permitted only upon
such conditions as will reasonably assure his
appearance at future proceedings, and
assure the safety of other persons and the
community. Such conditions might include
surrender by the fugitive of any passport or
travel documents, posting of a substantial
bond, and the requirement that the fugitive
maintain contact with appropriate federal
agencies, such as the United States Mar-
shals Service.
Subsection (d)(2) gives the court the dis-
cretion to release the fugitive provisionally
arrested pursuant to this section if the evi-
dence or documents required by the applica-
ble treaty are not received within sixty days
of the arrest (unless a longer period of de-
tention is specified in the applicable treaty).
The subsection resolves and ambiguity per-
ceived by the courts with respect to the
commencement and conclusion of the time
period for provisional arrest by providing
that this period should be calculated from
the date on which the fugitive is taken into
custody for extradition 28 to the date on
which the documents are received by either
the court or the Department of State." If
the court is notified that the documents
have been received by the Department of
State before the expiration of the 60-day
period, the court is directed to defer release
of the fugiti, e for a reasonable time pend-
ing the prorript transmission of the docu-
ments to the court by the Department of
State. If a court does release the fugitive
from custody due to the non-receipt of the
documents within the applicable time
period. subsection (d)(3) requires that the
court frame conditions of release reasonably
calculated to assure that person's appear-
ance for future proceedings and the safety
of other persons and the community. Re-
lease of the fugitive under subsection (d)
does not terminate the proceedings, which
can resume once appropriate documentation
arrives.3?
This section does not carry forward the
little used authorization in 18 U.S.C. 3184
for extradition proceedings to be com-
menced before State judges. The section
also specifies that extradition proceedings
must be initiated by the Attorney General,
rather than by a foreign government or one
acting on behalf of a foreign government."
These changes reflect the fact that interna-
tional extradition is strictly a function of
the Federal Government," and determining
when and how to perform that function is
properly the business of Federal officials
Januar), 27, 1983
and Federal courts. The United States Gov-
ernment has a sufficient interest in the vig-
orous enforcement of the laws (including
the extradition law and treaties) to justify
the participation of its legal counsel, the
Department of Justice, in all court proceed-
ings aimed at determining whether extradi-
tion can take place. Indeed, this is the ap-
proach which has been adopted in most for-
eign countries, many of which do not permit
the United States to argue in court during
proceedings in connection with a United
States extradition request. In addition,
United States courts are freed from any
need to determine whether a private person
is "authorized" by an "appropriate" foreign
authority to initiate extradition proceed-
ings. It should also significantly reduce the
likelihood of extradition proceedings being
used by private individuals as a tool for ha-
rassment, debt collection, or other improper
purposes.
SECTION 3193-WAIVER OF EXTRADITION
HEARING AND CONSENT TO REMOVAL
1. Present Federal law
Present Federal law provides no specific
procedure by which a person arrested for
extradition may waive the formalities and
voluntarily return to the foreign country re-
questing surrender. This is especially unfor-
tunate since a significant number of the fu-
gitives arrested under 18 U.S.C. 3184 choose
not to challenge the request for extradition
and wish to expedite removal to the foreign
country. Moreover, many of the newer ex-
tradition treaties to which the United
States is a party contain provisions obliging
the requested state to expedite the return
of a fugitive who has waived a hearing or
other procedures."
2. Provisions of section 3193
Section 3193 of the proposed extradition
chapter clarifies the method by which the
fugitive who does not contest extradition
can expedite his surrender. The provisions
of this section are based on Federal statu-
tory provisions governing a closely analo-
gous situation: the verification of a prison-
er's voluntary consent to transfer to his
country of nationality under treaties on the
execution of penal sanctions." The section
states that the court which would have han-
dled the extradition proceeding shall verify
that the fugitive's consent to be removed to
a foreign country has been given voluntarily
and with full knowledge of his right to con-
sult with counsel before making a decision
in the matter.
Under some circumstances, the foreign
government may not be willing to accept
custody of a fugitive who has offered to
waive extradition." There also may be situ-
ations in which the United States govern-
ment would consider waiver inappropriate."
Therefore, the provision does not permit re-
moval of the fugitive if the Attorney Gener-
al notifies the court that the United States
or the foreign state objects to the proposed
waiver.
SECTION 3194-EXTRADITION HEARING
1. Present Federal law
Under 18 U.S.C. 3184, an alleged fugitive
is entitled to a hearing at which a judicial
officer determines whether extradition is
lawful. 18 U.S.C. 3189 specifies that the
hearing must be held "on land, publicly, and
in a room or office easily accessible to the
public".
At the extradition hearing, the judicial of-
ficer must determine whether the offense
for which extradition is sought falls within
the terms of the treaty. He must also deter-
mine whether the acts for which the fugi-
tive is sought by the foreign country would
constitute a crime had they been committed
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CONGRESSIONAL RECORD ? SENATE S 411
in this country. This rule, known as "dual
criminality" or "double criminality", is gen-
erally considered a basic principle of inter-
national extradition law,37 and is expressly
required by many of the extradition treaties
to which the United States is a party .38 The
courts have held that the double criminality
requirement is satisfied whenever the acts
which the fugitive is charged with having
committed in the foreign country would be
punishable under Federal law, the law of
the State where the fugitive is found, or the
laws of a majority of the States, had those
acts been committed in this country-39
A judicial officer must also determine
whether there is sufficient proof that an ex-
traditable offense in fact has been commit-
ted. Most of the treaties to which the
United States is a party require that an ex-
tradition request be supported by "such evi-
dence of criminality as, according to the
laws of the place where the fugitive shall be
found, would justify his commitment for
trial had the crime or offense been there
committed." Many years ago, the courts
veiwed the words "place where the fugitive
shall be found" as requiring the Federal
court to determine if the foreign govern-
ment's evidence is sufficient to justify a
trial under the State laws of the State in
which the fugitive is apprehended." This
approach was a reasonable one eight dec-
ades ago, because at that time Federal
courts had no uniform rules of criminal pro-
cedure and routinely followed the procedur-
al rules of the courts" of the State in which
they were located. However, the adoption of
the Federal Rules of Criminal Procedure
has made it generally unnecessary for Fed-
eral courts to refer to State law in these
matters." Moreover, extradition is a nation-
al act," and the quantum of evidence neces-
sary for extradition is precisely the kind of
Issue which should be determined by uni-
form national law, rather than by various
State laws. For these reasons, all of the
more recent extradition treaties contain lan-
guage essentially requiring that the Federal
law standard of commitment for trial?prob-
able cause?be applied in weighing the suffi-
ciency of the evidence for international ex-
tradition."
The Federal Rules of Evidence do not
apply in extradition proceedings," where
unique rules of wide latitude govern the re-
ception of evidence on behalf of the foreign
government." It is settled law that hearsay
is admissible, and the foreign government
usually presents its case by submitting affi-
davits, depositions, and other written state-
ments in order to satisfy the requirements
of the applicable treaty." 18 U.S.C. 3190
provides that originals or copies of deposi-
tions, warrants, or other papers are admissi-
ble in evidence at the extradition hearing if
authenticated so as to be admissible for sim-
ilar purposes according to the laws of the
requesting country. The statute also pro-
vides that the certificate of the principal
diplomatic or consular officer of the United
States resident in the requesting country
shall be proof that the documents are au-
thenticated in the manner required. In es-
sence, the documents need only be genuine
and authentic?requirements that are
deemed fulfilled once it is shown that under
similar circumstances the requesting coun-
try's own courts would accept them as au-
thentic. The courts have held that extradi-
tion documents bearing a certificate which
is couched in the language of 18 U.S.C. 3190,
and signed by one of the specified officials,
are conclusively admissible." As a result of
these decisions, foreign governments rou-
tinely submit the documentation in support
of extradition requests to the appropriate
United States Embassy abroad for certifica-
tion and transmission to the United States.
This practice imposes undesirable burdens
on the United States Foreign Service offi-
cers who must fill out the certification."
The present statutory scheme offers little
guidance with respect to the evidence which
can be introduced on behalf of the alleged
fugitive in an extradition hearing. Many
cases emphasize that whether such evidence
should be admitted is a decision for the
court, in its discretion, to make." The al-
leged fugitive is ordinarily permitted to tes-
tify on his own behalf 5? or to have wit-
nesses testify for him." However, It is clear
from the case law that the alleged fugitive
may offer to explain ambiguities in the evi-
dence submitted against him, but may not
offer evidence which merely contradicts
that submitted by the requesting country,
or which poses a question of credibility, or
which raises an affirmative defense to con-
viction on the charges, or which is incompe-
tent by the terms of the extradition treaty
under which surrender is sought." This re-
strictive approach is appropriate because
the issue before the court at an extradition
hearing is probable cause, not the ultimate
guilt or innocence of the accused.
Finally, the judicial officer must deter-
mine whether the treaty contains a defense
to extradition which would preclude surren-
der in the case before him. Extradition trea-
ties frequently bar surrender if a statute of
limitations has foreclosed prosecution or
punishment for the offense in question,53 or
if the fugitive has been tried or punished in
the requested state for the same offense,"
or if any of several other legal consider-
ations are present.
Virtually every extradition treaty contains
a provision barring extradition for a politi-
cal offense, and many treaties also preclude
extradition if the requesting country has
political motives for seeking the return of
the fugitive. Under the present case law, the
courts decide whether the crime for which
extradition has been requested is a political
offense 55 but traditionally have declined to
consider whether the requesting country's
motives in seeking extradition are politi-
cal." Since these issues are usually inter-
twined,57 the possibility for inconsistent re-
sults is obvious.
If the judicial officer is persuaded that
the crime charged falls within the treaty,
that the acts involved would constitute an
offense in this country, that the evidence
submitted is sufficient to sustain the charge
under the treaty, and that no legal defense
to extradition is applicable, it is his duty to
certify these conclusions to the Secretary of
State. The judicial officer also must send
the Secretary of State a copy of all the oral
testimony taken at the hearing. 18 U.S.C.
3184 requires the judicial officers to order
the commitment of the accused to jail pend-
ing surrender, and there is provision for re-
lease on bail at this stage of the proceed-
ings. If the judicial officer finds that the fu-
gitive is not extraditable, the proceedings
are terminated, and the fugitive is released
from custody.
2. Provisions of section 3194
Section 3194(a) requires that a judicial
hearing be held to determine whether the
person sought is extradictable (unless such
as hearing has been waived under section
3193) and sets out the procedure for the
hearing.
Section 3194(a) provides that the court
does not have jurisdiction to determine
whether extradition is sought for a political
offense or because of the person's political
beliefs, while section 3196(a)(3) specifies
that the Secretary of State must decline to
order surrender of a person if, after taking
into account certain statutory principles
generally eliminating specified types of
crimes from the political offense exception
(e.g., crimes of violence and drug traffick-
ing), he is persuaded that the person's ex-
tradition is sought for one of these reasons.
The provisions taken together provide that
the Secretary of State shall have jurisdic-
tion to decide the applicability of the "polit-
ical offense" exception to extradition is
sought for one of these reasons. The provi-
sions taken together provide that the Secre-
tary of State shall have jurisdiction to
decide the applicability of the "political of-
fense" exception to extradition contained in
most extradition treaties, such decision to
be consistent with the statutory guidelines
and reviewable in the United States courts
of appeal based on a substantial evidence
standard. The Committee has concluded
that this approach, also discussed in dealing
with section 3196(a)(3) infra, is a desirable
one for several reasons.
First, the most modern United States ex-
tradition treaties specify that the executive
branch of the requested country shall
decide the applicability of the political of-
fense exception." In the absence therefore
of specific legislative endorsement of the
court developed rule?an unlikely prospect
in light of the trend in magistrate extradi-
tion decisions noted infra note 61?it is in-
evitable over the long term that the case
law rule reserving the political offense deci-
sion to the courts will become the exception
rather than the rule as the United States
continues its ongoing program of negotiat-
ing new modern treaties. Moreover, as previ-
ously noted, under present case law the
courts generally shun deciding whether the
foreign government's extradition request is
politically motivated,- preferring to leave
that decision to the executive branch. It
should also be noted that the political of-
fense decisions are made exclusively by the
executive branch of the government in sev-
eral foreign countries, including Canada and
Germany.
Second, the decision to shield a criminal
from extradition for an otherwise extradit-
able offense on the ground that his offense
was "political" is not the type of issue which
lends itself to resolution through the judi-
cial process." When dealing with a political
situation in a foreign country and the rela-
tionship of particular conduct to that situa-
tion, there are few truly objective criteria
by which a comprehensive definition of the
term "political offense" can be based."
Moreover, a public court proceeding is not
the most desirable forum for careful analy-
sis of a friendly foreign state's intentions or
political system. Such analysis and decisions
are inextricably intertwined with, and re-
quire the expertise of those versed in the
conduct of foreign relations. The Commtit-
tee has concluded that this issue is best left
to the Secretary of State, subject only to
limited review in the courts of appeal, along
with his traditional tuireviewable responsi-
bilities with respect to political asylum.
Finally, a decision on the political offense
exception can have a devastating impact on
United States relations with the requesting
country. The potentially crippling effect of
such decisions on foreign affairs is particu-
larly great where it could compromise
United State efforts to combat international
terrorism." The present law exacerbates
this situation, because frequently the
United States government, through the de-
partments of State and Justice, must take a
position on the applicability of the political
offense exception while the case is before
the court. Moreover, the government must
take this position publicly, before all the
evidence and arguments are in, and despite
the fact that the court or the Secretary of
State may subsequently decide against ex-
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S 412 CONGRESSIONAL RECORD ? SENATE January 27, 1983
tradition on other grounds. By contrast, the
approach taken by the proposed chapter
permits a more ieformed decision on extra-
dition to be made in a manner less likely to
be offensive to the friendly foreign govern-
ment involved in the case.
Subsection (b) supplements present law by
expressly providing that the fugitive be in-
formed of his right to be represented by
counsel at the extradition hearing. Indigent
fugitives will be provided with counsel pur-
suant to the provisions of section 3401 relat-
ing to court-appointed counsel. The provi-
sion also requires that the fugitive be in-
formed of his right to introduce evidence in
his own behalf on matters within the juris-
diction of the court. The subsection thereby
leaves intact the extensive case law on this
point.82
Subsection (c) deals with evidence in an
extradition hearing. Paragraph 1 is designed
to clarify the circumstances under which
documentary evidence will be admissible on
behalf of either party in an extradition
hearing.
Many treaties specifically set out the
manner in which extradition documents
must be authenticated," and subparagraph
(A) of paragraph (1) provides that docu-
ments so authenticated shall be admissible.
It also provides that documents authenticat-
ed in accordance with the provisions of
United States law shall be deemed admissi-
ble as evidence in the extradition hearing.
Thus, documents which comply with the re-
quirements of Article IX of the Federal
Rules of Evidence would be admissible in
extradition proceedings. However, the provi-
sion does not require the exclusion from the
hearing of evidence which fails to satisfy
the Federal Rules of Evidence. Rather, the
subsection merely underscores the common-
sense proposition that evidence which satis-
fies the high standards set out in the Rules,
and which would be admissible in civil or
criminal proceedings in this country, should
likewise be acceptable in extradition pro-
ceedings.
Subparagraph (B) of paragraph (1) is
based on 18 U.S.C. 3190 and provides that a
document authenticated accordance with
the applicable laws of the foreign country
requesting extradition shall be admissible if
it is accompanied by an attestation to this
effect from a judge, magistrate, or other ap-
propriate officer of the foreign state. The
phrase "other appropriate officer" would in-
clude an official of the foreign counterpart
of the Department of Justice, or any other
government official likely to be familiar
with legal matters in the foreign country. It
further requires that the signature and po-
sition of the person so attesting be certified
by a diplomatic or consular officer of the
United States posted in the foreign country,
or by a diplomatic or consular officer of the
foreign state assigned to this country." The
provision thus brings the essential require-
ments of 18 U.S.C. 3190 more into line with
Rule 902(3) of the Federal Rules of Evi-
dence.
Subparagraph (C) of paragraph (1) Per-
mits the court handling an extradition
matter to accept as evidence any documents
which it is persuaded are in fact authentic,
regardless of compliance with either of the
two previous provisions. This rule is similar
to Rule 901(a) of the Federal Rules of Evi-
dence, and is in accord with established case
law permitting the authenticity of docu-
ments presented in extradition proceedings
to be established by the testimony from
expert witnesses or by other evidence."
Paragraph (2) of subsection (c) provides
that a certificate or affidavit by an appro-
priate State Department official as to the
existence or interpretation of a treaty is ad-
missible as evidence of that treaty or its in-
terpretation.
The overwhelming majority of extradition
treaties require that the requesting country
present such evidence of criminality as
would justify commitment for trial had the
crime or offense been committed in the
place where the fugitive has been found.
Under paragraph (2) such a treaty provision
may be satisfied by evidence establishing
probable cause to believe that a crime was
committed and that the person sought com-
mitted it. This is the usual standard for
commitment for trial in Federal criminal
cases." This approach permits the Federal
courts to apply the standard for commit-
ment with which they are most familiar,
and establishes a single, uniform standard
by which the sufficiency of evidence in ex-
tradition proceedings may be measured. It is
also consistent with the views expressed in
several recent court decisions pointing out
the advantages of dealing with the quantum
of evidence for extradition in a manner con-
sistent with Federal law."
Paragraphs (1), (2), and (3) of subsection
(d) carry forward the requirements of 18
U.S.C. 3184 that instruct the court to find
the fugitive extraditable if the evidence pre-
sented is sufficient to sustain the complaint
under the provisions of the applicable
treaty, and also requires that the court find
probable cause that the person before it is
the person sought in the foreign state, and
that none of the defenses to extradition
which the court is empowered to consider
are applicable. Paragraph (4) bars extradi-
tion unless the acts for which the fugitive's
surrender is requested would constitute a
crime punishable under State or Federal
law in the United States. Finally, the sub-
section states that the findings required for
extradition may be established by hearsay
evidence or certified documents alone. This
rule is similar to Rule 5.1 of the Federal
Rules of Criminal Procedure, which permits
a finding of probable cause to commit for
trial to be based on hearsay evidence. It is
also in accord with recent court decisions
which point out that the kind of evidence
necessary for extradition is an issue which
should be determined by uniform national
law.88
Subsection (e) details the procedures that
the court must follow at the conclusion of
the hearing. If the court finds that the fugi-
tive is extraditable, it must state, in writing,
its findings and rationale with respect to
each of the offenses for which extradition is
sought." These findings must be sent to the
Secretary of State, together with a tran-
script of the hearing." If the court finds
that the fugitive is not extraditable, the
findings required by the subsection may be
accompanied by a report rather than a tran-
script of the hearing.
SECTION 3 1 9 5-APPEAL
1. Present Federal law
Under present Federal law, there is no
direct appeal from a judicial officer's find-
ing in an extradition hearing." A person
found extraditable may only seek collateral
review of the finding, usually through an
application for a writ of habeas corpus."
The foreign government that is dissatisfied
with the results of the hearing must insti-
tute a new request for extradition." The
lack of direct appeal in extradition matters
adds undesirable delay, expense, and com-
plication to a process which should be
simple and expeditious.
2. Provisions of section 3195
Section 3195 of the proposed chapter per-
mits either party in an extradition case to
appeal directly to the appropriate United
States court of appeals from a judge or mag-
istrate's decision. It is anticipated that
review on appeal will be very narrow, and
that any findings of fact by the lower court
will be affirmed unless they are clearly erro-
neous.
Subsection (a) specifies that the appeal
shall be filed within the time limits set out
in Rules 3 and 4(b) of the Federal Rules of
Appellate Procedure, i.e., 10 days for the
person sought and 30 days for the govern-
ment. These are the same deadlines for
filing a notice of appeal in criminal cases,
and while the an extradition hearing is not
a trial," or even strictly a criminal proceed-
ing," these deadlines adequately balance
the competing interests of fairness and ex-
pedition. It is anticipated that other aspects
of the appeal process (such as the prepara-
tion and submission of the record, briefing,
argument and decision) will be governed by
the applicable provisions of the Federal
Rules of Appellate Procedure.
If the fugitive has been found extradit-
able, subsection (a) requires that surrender
to the foreign government be stayed pend-
ing determination of the appeal by the
court of appeals." This provision prevents
the government from mooting the appeal by
spiriting the petitioner out of the country
While the matter is sub judice. The provi-
sion is designed to maintain the status quo
with respect to the fugitive's custody pend-
ing appeal. It is anticipated that the district
court will not ordinarily stay or delay any
other element of the extradition process,
such as the certification of its findings to
the Secretary of State under section
3194(e).
Subsection (b) provides that a person
found extraditable must remain in official
detention pending the appeal unless the
court of appeals finds that special circum-
stances require release. This is a slight ame-
lioration of present law, which does not
permit the release of a fugitive on bail after
he has been found extraditable.' The
change is desirable because the same kind of
pressing, unusual situation which might re-
quire that the person sought be released
from custody on bail pending the extradi-
tion hearing 78 could conceivably arise after
the extradition hearing. However, it is an-
ticipated that this authority to release a fu-
gitive on bail will be utilized even more spar-
ingly than the power to grant bail before
the extradition hearing, and only after the
most thorough and searching examination
of the claimed need for release. It is expect-
ed that the courts of appeal will keep in
mind that "no amount of money could
answer the damage that would be sustained
by the United States if [the fugitive] were
to be released on bond, flee the jurisdiction,
and be unavailable to surrender. . ." 79
If the person was found not extraditable.
subsection (b)(2) permits the district court
to order that the person be released pending
an appeal by the government. Release shall
be ordered unless the district court is satis-
fied that the appellee is likely to flee before
the appeal is decided, or endanger the
safety of any other person or the communi-
ty.
A major purpose of section 3195 is to sim-
plify, and thereby expedite, the extradition
process by providing for a direct appeal
from a contested decision on extradition.
The direct appeal provided by this section
largely eliminates the present need for
habeas corpus proceedings in order to
obtain judicial review of the initial finding
that a person is extraditable. This purpose
would be frustrated if a fugitive bent on
dilatory tactics were permitted to pursue an
appeal under this section, a petition for cer-
tiorari to the Supreme Court, and then
begin one or more rounds of habeas corpus
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CONGRESSIONAL RECORD ? SENATE S 413
proceedings. Such a course of action would
lengthen the extradition process rather
than shorten it. Therefore, subsection (c)
deprives any court of jurisdiction to review
a finding that a fugitive is extraditable
under this chapter unless the fugitive has
exhausted the appellate remedies available
to him by right in this section. It also fore-
closes an appeal, a petition for habeas
corpus, or declaratory judgement action if
the validity of the fugitive's commitment
for extradition has been ruled upon in prior
proceedings, unless grounds are offered
which could not have been presented previ-
ously.
The resolution of challenges to judicial
action in international extradition cases
should be especially prompt. Extradition
cases are quasi-criminal in nature. More-
over, in such cases, our government's will-
ingness to make a timely and ungrudging
execution of its solemn treaty obligations to
a friendly nation is in question." Therefore,
this section requires that courts of appeal
decide cases arising under this chapter expe-
ditiously.
SECTION 3198-SURRENDER OF A PERSON TO A
FOREIGN STATE
1. Present Federal law
Under 18 U.S.C. 3186, the Secretary of
State may order that any person found ex-
traditable by a court under 18 U.S.C. 3184
be delivered to an authorized agent of the
government seeking extradition. Although
it is generally agreed that the Secretary's
decision in this matter is discretionary,"
present law provides no indication of the pa-
rameters of the Secretary's discretion.
18 U.S.C. 3188 states that if a fugitive
found extraditable under 18 U.S.C. 3184 is
not removed from the United States within
"two calendar months" of the court's com-
mitment order, he may be released from
custody unless there is "sufficient cause"
why release should not be ordered.82 The
courts have held that if the fugitive insti-
tutes litigation challenging his extradition,
the two-month period commences when the
claims are finally adjudicated rather than
when the commitment order was issued."
2. Provisions of section 3196
Subsection (a) carries forward the essence
of 18 U.S.C. 3186 by providing that the Sec-
retary of State shall make the final decision
as to extradition. The subsection requires
that the Secretary's decision be made in ac-
cordance with the chapter and the applica-
ble treaty, and lists the actions that the Sec-
retary may take.
Subsection (a)(1) simply permits the
Secretary to order the surrender of a
person the court has found to be extradit-
able to a duly appointed agent of the for-
eign state.
Subsection (a)(2) permits the Secretary to
condition the surrender of a fugitive upon
the acceptance by the foreign state of re-
strictions or conditions he considers neces-
sary in the interest of justice or to effectu-
ate the purposes of the treaty. This provi-
sion underscores the Department of State's
authority to impose such restrictions where
humanitarian concerns 84 or questions con-
cerning trial procedures in the requesting
state exist. 85 It would also permit the impo-
sition of restrictions expressly contemplated
in the provisions of some newer treaties. 86
Subsection ( a )( 3 ) provides that the
Secretary of State shall deny extradition
where he is persuaded that the foreign state
is seeking the person's extradition "for a po-
litical offense or an offense of a political
character, or for the purpose of prosecuting
or punishing the person for his political
opinions." The first of these determina-
tions?i.e., whether the offense is a "politi-
cal offense or an offense of a political char-
acter"?currently is decided by the courts.
The Committee concluded that the adver-
sary judicial procedure requiring State De-
partment expert testimony on an evaluation
of volatile political situations in foreign
countries is an unsatisfactory way to resolve
this issue. Other fundamental reasons un-
derpinning structural alteration of the deci-
sion-making apparatus with respect to the
political offense exception were addressed
in the discussion relating to section 3194
supra and are not repeated here. This bill
meets these problems by shifting the politi-
cal offense exception decision to the Secre-
tary of State, subject to judicial review
based on a substantial evidence test in the
court of appeals for the circuit in which the
extradition proceeding took place. With re-
spect to judicial review, it should be noted
that an adequate administrative record
must be made providing the factual basis
for the Secretary's decision.
In addition, the bill provides guidelines to
be applied by the Secretary of State that
are intended to prevent relief from extradi-
tion for the specified offenses except in the
most rare circumstances. This part of the
bill reads as follows:
When it is claimed that the foreign gov-
ernment is seeking the person for a political
offense or an offense of a political charac-
ter, the Secretary will make his determina-
tion in accordance with the following princi-
ples. A political offense or an offense of a
political character normally does not in-
dude?
(A) an offense within the scope of the
Convention for the Supression of Unlawful
Seizure of Aircraft, signed by The Hague on
December 18, 1970;
(B) an offense within the scope of the
Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation,
signed at Montreal on September 23, 1971;
(C) a serious offense involving an attack
against the life, physical integrity, or liberty
of internationally protected persons (as de-
fined in section 1116 of this title), including
diplomatic agents;
(D) an offense with respect to which a
treaty obligates the United States to either
extradite or prosecute a person accused of
the offense;
(E) an offense that consists of homicide,
assault with intent to commit serious bodily
injury, rape, kidnapping, the taking of a
hostage, or serious unlawful detention;
(F) an offense involving the use of a fire-
arm (as such term is defined in section 921
of this title) if such use endangers a person
other than the offender;
(G) an offense that consists of the manu-
facture, importation, distribution or sale of
narcotics or dangerous drugs; or
(H) an attempt or conspiracy to commit
an offense described in paragraphs (A)
through (0) of this paragraph, or participa-
tion as an accomplice of a person who com-
mits, attempts, or conspires to commit such
an offense.
The first four criteria involve commit-
ments made by the United States pursuant
to international conventions or agreement,
such as aircraft hijacking and terrorist acts
against internationally protected persons.
The next two cover serious crimes of vio-
lence against the person, including endan-
gering others through the use of firearms or
explosives. The seventh criteria relates to
drug trafficking, while the eighth factor
deals with attempt, conspiracy, and accom-
plice liability for the preceding categories of
offenses.
It should be noted that the guidelines in
fact set forth certain types of offenses that
should not "normally" be found to be "polit-
ical offenses". Use of the term "normally"
recognizes that there may be a rare situa-
tion in which the nature of, and events in, a
foreign country and the traditions of free-
dom and political democracy in the United
States combine to compel the Secretary of
State to find one of the listed offenses a po-
litical offense under the circumstances of
the case. While the Committee elected to
retain this narrow flexibility, it is noted
that the United States has well established
principles governing executive authority to
grant political asylum that should more
than adequately provide the alternative and
preferred basis for appropriate relief from
extradition on political grounds consistent
with the traditions, heritage, and foreign
policy principles of this country.
It should also be noted that this provision
provides that any evidence or arguments
the fugitive wishes to present to the Secre-
tary of State with respect to the alleged po-
litical nature of extradition shall be in writ-
ing. The Secretary is not required to provide
a formal hearing on a political offense ex-
ception application," but it is expected that
the Secretary will utilize the resources of
the Department of State for gathering evi-
dence and assessing the claim.
Subsection (a) also makes it. explicit in the
statute that the decisions of the Secretary
of State under paragraphs ( I I, (2), and (3) of
that subsection are in the nature of post-ju-
dicial "last step" final administrative deter-
minations prior to actually effecting the ex-
tradition and, as such, are not subject to ju-
dicial review.
Finally, subsection (a) expressly author-
izes surrender of United States nationals
unless surrender is expressly prohibited by
the applicable treaty." This provision is
necessary in light of the decision in the Val-
entine 89 case in which the Supreme Court
held that language contained in many of
the older extradition treaties to which the
United States is a party does not permit the
surrender of United States citizens absent
explicit statutory authority for such surren-
der. The result of the Valen tine decision has
been to effectively immunize United States
citizens from extradition in many cases?a
result never intended by the negotiators of
the treaties involved. It is the policy of the
United States to treat its citizens and aliens
within its borders equally in extradition
matter,' and this subsection permits that
policy to operate effectively.
Subsection (b) requires that the Secretary
of State notify all interested parties of his
decision on extradition.
Subsection (c)(1) provides that the fugi-
tive shall be released from custody if the
Secretary of State does not order, or de-
clines to order, the person's surrender
within forty-five days after receiving the
record of proceedings from the court. Of
course, if the Secretary of State decides
within the forty-five days to refuse to order
extradition, the authority for holding the
person sought in custody under section
3194(e)(1) immediately expires, and the
person should be released from detention at
once.
Subsection (c)(2) is based on the provi-
sions of 18 U.S.C. 3188, and provides that
when the Secretary of State has ordered a
person extradited, the foreign country in-
volved must take custody of the person and
remove him from the United States within
30 days. This 30-day time period does not
begin until all litigation challenging extradi-
tion has been completed. The subsection ex-
pressly excludes from consideration the
time during which surrender has been
stayed pending litigation.
? Subsection (c) requires a person found ex-
traditable to give the Secretary of State rea-
sonable notice that he will seek release be-
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S 414 CONGRESSIONAL RECORD SENATE
cause of expiration of a time limitation set
forth in subsection (cX1) or (cX2), and for-
bids release if good cause is shown for the
delay in effecting surrender.
SILTION 81117--INEICIPT OF A PERSON PROM
TORSION ELVIN
1. Present Federal Law
18 U.S.C. 3192 authorizes the President to
"take all necessary measures for the trans-
portation and safekeeping" of a person ex-
tradited to the United States from a foreign
country. At one time the President relied
upon this statute to issue a warrant desig-
nating an agent to receive custody Of a fugi-
tive from a foreign government 18 U.S.C.
3193 authorizes such an agent to convey the
fugitive directly to the place of trial, and
grants to the agent "all the powers of a
Marshal of the United States, in the several
federal districts through which it may be
necessary for him to pass with Ethel prison-
er.. . . . The authority to issue warrants
and appoint agents under these sections has
now been delegated to the Secretary of
State." However, the Department of State
wishes to transfer to the Department of
Justice the authority to appoint agents and
Issue warrants in these matters.
2. Provisions of section 3197
Section 3197 of the proposed chapter car-
ries forward the provisions of 18 U.S.C. 3192
and 3193, with minor modifications reflect-
ing present United States practice.
Subsection (a) authorizes the Attorney
General to designate an agent to receive
custody of a fugitive surrendered by a for-
eign government, and permits the agent to
convey the fugitive to the place of trial in
the United States. The final sentence of the
subsection permits the extradited fugitive to
be taken directly to the Federal district or
State jurisdiction in which charges are out-
standing without removal proceedings
under Rule 40 of the Federal Rules of
Criminal Procedures or interstate rendition
proceedings.
' Section 3197(b) is new, and is designed to
Implement provisions, found in some of the
most recent United States extradition trea-
ties. The laws in many foreign countries re-
quire that extradition be postponed until
the person has satisfied any outstanding
crizninal charges in that country." Fre-
quently, a person sought by the. United
States has already been tried and convicted
of other charges in the requested country
and has a sentence to serve there. If the
sentence abroad is a long one, the postpone-
ment of surrender could compromise the
possibility of a speedy and fair trial in this
country." Some extradition treaties contain
provisions which deal with this problem by
permitting "temporary extradition". Under
these treaty provisions, a fugitive convicted
abroad would be surrendered to the United
States solely for purpose of trial and sen-
tencing here, then returned to the foreign
country involved to finish the sentence pre-
viously imposed there.94 This process bal-
ances our government's interest in adjudi-
cating the charges while the evidence is
fresh with the foreign country's desire to
fully enforce its laws. It also works to a fugi-
tive's benefit by enabling him to answer the
charges in this country while evidence for
his defense is still available, and by creating
the possibility that the sentence imposed
upon conviction in this country could run
concurrently with that the fugitive must
serve abroad.
Section 3197(b) provides implementing
legislation for treaty provisions of this
types. It provides that when a foreign state
has delivered a person to the United States
on the condition that the person be re-
turned at the conclusion of the criminal
teal or sentencing. the Bureau of Prisons
shall keep the person in custody until the
judicial proceedings are concluded, and
thereafter surrender the person to a duly
appointed agent of the foreign country. It
also provides that the return to the foreign
state of the person is not subject to the re-
quirements of the chapter, such as an extra-
dition hearing or an order of surrender by
the Secretary of State.
SECTION 311111?GENERAL PROVISIONS TOR
=APT= 216
un general ?
This section contains the definitions and
general provisions applicable to the extradi-
don chapter.
I. Present Federal law
18 U.S.0 3198 requires that the foreign
government which sought extradition pay
all costs and fees resulting from the request.
The costs resulting from extradition re-
quests here frequently are so small that it is
uneconomical?and diplomatically embar-
rassing?to attempt to enforce this statute.
Moreover, many of the extradition treaties
to which the United States is a party con-
tain provisions which modify this statutory
rule." Also, the United States has entered
Into informal arrangements with some
countries whereby each country bears most
of the cost of the other's extradition re-
quoit In short, the present statute does not
adequately reflect government policy in ex-
tradition matters.
Present statutory law offers no guidance
as to who roust pay the costs associated
with United States requests to foreign coun-
tries for the extradition of fugitives. The
Department of State requests extradition
on behalf of either the State within the
United States in which the fugitive is
charged, or, If Federal charges are involved.
on behalf of the United States. Therefore.
the long-standing policy of the Department
of State has been that the State jurisdiction
which sought the fugitive's return must pay
any expenses incurred in connection with
the extradition request, and the Depart-
rnent of Justice must pay the expenses in-
curred in obtaining the extradition of a fu-
gitive Federal offender.
3. Provisions of section 3198
Subsection (a) of section 3198 sets forth
definitions for the terms "court", "foreign
state", "treaty", and "warrant".
Subsection (b) states that in general a for-
eign state which has requested the extradi-
tion of a fugitive located in the United
States must bear all costs and expenses in-
curred in connection with that request.
Since many of the extradition treaties con-
tain provisions specifically dealing with
costs in extradition matters, the subsection
authorizes the Secretary of State to direct
that this matter be handled in accordance
with terms of the applicable treaty or agree-
ment. Subsection (b) also requires that all
cost and expenses incurred in connection
with the execution of a request by a State
of the United States for the return of a fu-
gitive located in another country must be
paid by that State. When the request for ex-
tradition is made to secure the return of a
fugitive wanted for a Federal offense, the
expenses must be borne by the United
States. It is anticipated that when the fugi-
tive involved is sought for both Federal and
State offenses, the costs incurred abroad
will be allocated accordingly.
? FoovriOrEs
Extradition Act of 1981, Hearings before the
Committee on the Judiciary, U.S. Senate, 97th
Cong., tat Sess. (1981) [hereinafter cited as Hear-
ings].
'United States v. Mardtin,?F.2d--(2d Cir. 1981).
Valentine v. U.S. ex rel. Heidecicer, 299 U.S. 5
(1938); Argenta V. Horn. 241,. F.2d 258, 259 (8th Cir.
January 27, .1982
-
1057). cert. denied 355 U.S. 818(1997): foancepio V.
Artnkovie, 211 P.20 565, 566 (9th Cir. 1054) cert.
denied. 34 U.S. 818 (19114): Wank Legal Basis for
ltsbuilltion in the United States. 16 New York Law
Forum 526. 529-520 (11100); 6 Whiteman. Digest of
International Law 727 (1061).
? See e.g., Art. 14, Amending Protocol to the 1961
Single Convention on Narcotic Drugs, done St'
Geneva. March 24. 1972, 26 U.S.T. 1439,
8118 (entered Mtn force for the United States
August 8, 11115); Art. 8, Convention on Suppression
at Unlawful Seizures of Aircraft, done at The
Hague. December 16, 1974, 22 U.S.T. 1641, T.I.AJEL
7192 (entered Into force for the United States Octo-
ber 14, 1971): Art. 8, Convention on the Prevention
and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents,
done at New York. December 14, 1973, 28 U.S.T.
1975, T.I.A.S. 8532 (entered into force for the
United States February 20,1917).
? See. e.g., HobneS v. Laird, 459 1..2d. 1211, 148
U.S. APP. D.C. 187 (D.C. Cir. 1072), cert. denied. 409
U.S. 8e0 (1972); Williams V. Rogers, 449 F.2d 513
(8th Cir. 1911). cert. denied. 406 U.S. 928 (1972).
? See e.g.. Ealatilis v. Rosenberg, 305 F.2d 249
(9th Cir. 1962).
6 Whiteman, supra note 3, at 935.
? United States as ret Caputo v. Kelley, 92 F.2d 803
(2d Cir. 1937), cert. denied, 303 U.S. 635 (1938); Or-
nets* v. Ruts, 161 U.S. 502 (1898); Castro V. DeUr-
tette, 12 Fed. 250 (S.D. N.Y. 1882). See, generally. 6
Whiteman supra note 3, at 935; Note, United States
Extradition Proceedings, 16 New York Law Forum
420, 432 (1980).
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Januaiy 27, 1983 CONGRESSIONAL RECORD ? SENATE
Reuschlein, Provisional Arrest and Detention in In-
ternational Extradition, 23 Georgetown Law Jour-
nal 37 (1934); Note, 18 New York Law Forum-420,
429-430 (1970).
" E.G.. contains an indication that the fugitive is
likely to flee the jurisdiction and be unavailable by
the time the extradition documents arrive.
22 See. 6 Whitemen, supra note 3, at 931; Whitely
v. Warden, Wyoming, State Penitentiary, 401 U.S.
560, 568 (1970); United States v. McCray, 488 F.2d
848 (5th Cir. 1967).
2. See. e.g., Caltaairone v. Grant, 829 F.2d 739 (2d
Cir. 1980).
22 "Court" is defined in section 3198(a)(1) to mean
a United States district court established pursuant
to 28 U.S.C. 132, or the District Court of Guam, the
Virgin Islands, or the Northern Mariana Islands, or
a United States magistrate authorized to conduct
an extradition proceeding.
"Thus, the section eliminates the arbitrary rule
created by the Supreme Court in Pettit V. Waishe,
194 U.S. 205 (1904). See note 40, infra, and accom-
panying text. This rule is unnecessary in light of
proposed section 3194(c)(3).
"See notes 15 and 16, supra.
" In re Mitchell, 171 Fed. 289, 290 (S.D.N.Y.
1909).
"See, e.g., In re Kaplan, Civ. No. 79-2219 RF
(C.D. Cal July 29, 1979).
See, e.g., /n re Itoka, Misc. No. 79-1536?M (D.
N.M. Dec. 17, 1979).
"See, In re Chan Kam-Shu, 477 F.2d 333. 339-340
(5th Cir. 1973) cert. denied, 414 U.S. 847 (1973).
" United States v. Clarke, 470 F. Supp. 979 (D.
Vermont 1979).
"E.g., Art. 13(2), Extradition Treaty, United
States-Norway. signed June 9, 1977, ? U.S.T.
T.I.A.S. 9679 (entered into force March 6, 1980).
It is anticipated that in most cases the Attor-
ney General will act through the United States at-
torney for the district in which the fugitive is locat-
ed. If the foreign government involved feels the
need to participate in the judicial proceedings, it
can retain counsel and seek to enter the case as
amicus curia/.
"Valentine v. United States ex rel. Neidecker, 299
U.S. 5, 8 (1936) ; United States V. Rauscher, 119 U.S.
407, 414 (1886).
"See e.g., Art. 10, Extradition Treaty, United
States-Japan, signed March 3, 1978, ? U.S.T.
T.I.A.S. 9625 (entered into frace March 25, 1980) ;
Art. 18, Extradition Treaty, United States-Mexico,
signed May 4, 1978, ? U.S.T. T.I.A.S. 9656 (en-
tered into force January 24, 1980).
"See 18 U.S.C. 4107-4108.
"For example, a fugitive might wish to waive ex-
tradition on only one of many outstanding charges
against him in the requesting state. Under these
circumstances, that foreign state might conceivably
prefer to have extraditability determined as to all
of the charges.
"For example, many extradition treaties permit
the requested state to postpone extradition until
the person sought has been tried and punished for
criminal charges outstanding in that state. A
person facing criminal charges or imprisonment in
this country might well attempt to expedite his ex-
tradition to a foreign country where less serious
charges are pending, in order to avoid prosecution
or punishment here. In such circumstances, it
woula not be appropriate for the United States to
perrna expedited surrender, at least not until the
charges in this country have been resolved or the
sentence served.
"Shearer. Extradition in International Law, 137-
141 (1971) ; 6 Whiteman, supra note 3, at 773-779 :
Freeman v. United States, 437 F. Supp. 1252, 1263
(N.D. Ga. 1977).
"See. e.g., Art. 2(1). Extradition Treaty, United
States-Japan, signed March 3, 1978, ? U.S.T.
T.I.A.S. 9625 (entered into force March 25, 1080).
Cucuzella v. Keltikaa, 638 F.2d 105 (9th Cir.
1981) ; Brauch v. Raiche, 618 F.2d 843, (1st Cir.
1980) ; Freedman v. United States, supra note 37, at
1252, 1263.
"Pettit v. Walshe, supra note 23 : see e.g.. U.S. ex
rel. LoPizzo v. Mathews, 36 F.2d 565 (3d Cir. 1929) ;
U.S. ex ret, Rauch V. Stockinger, 170 F. Supp. 506
(ED. N.Y. 1959), affd 269 F.24 681 (2d Cir. 1959),
cert denied, 371 U.S. 913 (1959) : O'Brien V. Roz-
mann, 554 F.2d 780 (6th Cir. 1977).
4. Greci v. Birkness, 527 F.2d 956, 958, at note 3
(1st Cir. 1976) ; Application of D'Amico, 185 F.
Supp. 925-930, at note 6 (S.D.N.Y. 1960), appeal dis-
missed, 286 F.2d 320 (2d Cir. 1960), cert denied, 366
U.S. 963 (1962).
"6 Whiteman, supra note 3.
42 Greci v. Birkness, supra note 41; Sindona V.
Grant, 461 F. Supp. 199 (S.D.N.Y. 1978); Bra uch V.
Raiche, supra note 39.
"Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir.
1969), cert. dented, 390 U.S. 903 (1970).
"Rule 1101. Federal Rules of Evidence.
"The Supreme Court has indicated that requir-
ing the foreign state to produce live witnesses in ex-
tradition hearings would tend to "defeat the whole
object of the treaty." Bingham v. Bradley, 241 U.S.
511, 517 (1916); see also, Collins v. Loisel, 259 U.S.
309, 317 (1922); Sayne v. Shipley, supra note 44; /n
re David, supra note 12; O'Brien v. Rozmann, supra
note 40.
"United States v. Galanis, 429 F.2d 1215, 1225-
1229 (D. Conn. 1977), reed on other grounds, 568
F.2d 234, 240 (2d Cir. 1977); Shapiro V. Ferrandina,
478 F.2d 894, 903 (2d Cir. 1973); In re Edmonson, et
al. 352 F. Supp. 22, 24 (D. Minn. 1972).
"The consular and diplomatic officers who must
sign the certificate are usually not lawyers, and it is
difficult for them to know whether the documents
presented to them are in fact acceptable "for simi-
lar purposes" in the courts of the requesting state.
"Freedman v. United States, supra note 37; U.S.
ex rel. Petrushansky V. Marasco, supra note 12.
Coppelman, Extradition and Rendition.' Histo-
ry-Law-Recommendations, 14 Boston L.R. 591; 614
(1934).
18 U.S.. 3191 provides for compulsory process
to secure the attendance at extradition hearings of
witness on behalf of indigent fugitives. However,
the statute applies only to witnesses who are resi-
dent in the United States. Merino V. United States
Marshal, 326 F.2d 5, 11 (9th Cir. 1964), cert. denied,
377 U.S. 997 (1964).
"Matter of Sindona, 450 F. Supp. 672 (S.D.N.Y.
1978); Shapiro v. Ferrandina, supra note 47; Freed-
man v. United States, supra note 37; Sayne v. Ship-
ley, supra note 44; First National City Bank v. Aris-
tequieta, 287 F.2d 219, 226 (2d Cir. 1960); Desmond
v. Eggers, 18 F.2d 503, 503-506 (9th Cir. 1927); Col-
lins v. Loisel, supra note 46; Charlton v. Kelley, 229
U.S. 447, 458 (1913).
"See, generally, 6 Whiteman, supra note 3, at
859-865; Note, Statute of Limitations in Interna-
tional Extradition, 48 Yale L.J. 701 (1939).
"See, e.g., Gaianis V. Pallanck, 568 F.2d 234 (2d
Cir. 1978).
"in re Ezeta at at, 62 Fed. 972 (N.D. Cal. 1894).
Basically, under current case law, some courts have
said that there are "pure" political offenses, such
as treason or sedition, and "relative" political of-
fenses, such as one "committed in the course of fur-
thering civil war, insurrection or political commodi-
tion." Id.; Karadzole V. Art ukovic, 242 F.2d 198 (9th
Cir. 1957), rev'd on other grounds, 344 (U.S. 393
(1957); United States ex rel. Karadzole V. Artukovic,
170 F. Supp. 383 '(S.D. Cal. 1959); Ramos v. Diaz,
179 F. Supp. 459 (S.D. Fla. 1959); see Hannay, Inter-
national Terrorism and the Political Offense Excep-
tion to Extradition, 18 Columbia Journal of Trans-
national Law 381 (1980).
"In re Lincoln, 228 Fed. 70 (E.D.N.Y. 1915), aff'd
per curium, 241 U.S. 651 (1917); /n re Gonzalez, 217
F.2d 717, 722 (S.D.N.Y. 1963); Garcia-Guillerin V.
United States, 450 F.2d 1192 (5th Cir. 1971); /n re
Locatelli, 468 F. Supp. 568, F. Supp. 568, 575
(S.D.N.Y. 1979); Sindono v. Grunt, supra note 43.
Compare Ziyad Abu Fain v. Wilkes, 641 F.2d
504 (7th Cir.), cert. denied.?U.S.?(1981), with the
Memorandum decision of the Secretary of State in
the case of Ziyad Abu Eain, Hearings pp. 133-139.
"See, e.g., Art. 5(1). Extradition Treaty, United
States-Mexico, signed May 4, 1978,?U.S.T.?,
T.I.A.S. 9656 (entered into force January 25, 1980).
"For an excellent discussion of the political of-
fense exception to extradition and the impact of
recent cases, see Hearings, pp. 25-28, statement of
William M. Hannay; Hannay, supra note 55.
"See Hearings, pp. 3, 4, 25-23, statements of
Daniel McGovern and William M. Hannay; Levy.
Contemporary International Law: A Concise Intro-
duction, 190 (1979). The courts in various countries
differ widely on what kinds of offenses are covered
by the term, and legal scholars here and abroad
have proposed a host of different?and frequently
contradictory?proposals on the topic. See general-
ly, Carbormeau, The Political Offense Exception to
Extradition and Transnational Terrorists: Old Doc-
trine Reformulated and New Norms Created, 1
ASILS International Law Journal 1(1977); Hannay,
supra note 55.
Three recent extradition cases graphically il-
lustrate this point. In the Peter McMullen case.
McMullen was charged with the bombing of a Brit-
ish army installation in England. In the Desmond
Mackin case, Mackin was charged with an attempt
to murder a British soldier dressed in civilian
clothes in a Belfast bus station. In the third case,
Abu Eain v. Wilkes, supra Abu Rain was charged
with the bombing murder of several children hi an
Israeli resort town. In both the McMullen and
S415
Mackin cases the magistrates denied extradition on
the grounds that the offenses charged were "politi-
cal offenses". In the Abu Rain case the court of ap-
peals held the political offense exception inapplica-
ble. William Hannay, commenting on this judicial
line drawing, observed (Hearing. p. 14):
In each of these cases, the test set forth in the
19th century English case of /n re Castioni . . was
accepted as the operative definition of a "relative"
political offense. The court in a Castioni stated
that a political offense is a crime which was "inci-
dental to and formed a part of political
disturbances" . . . The absurdity and ultimate cru-
elty of applying this test or any other "test" of a
political offense is illustrated by the assertion of
the magistrate in McMullen who taking the excep-
tion to its insane but logical end, stated: "(e)ven
though the offense be deplorable and heinous, the
criminal action will be excluded from deportation if
the crime is committed under these pre-
requisites." . . . Mechanically applying the Cas-
tioni test the magistrates in Mackin and McMullen
concluded that extradition was prohibited since
"political disturbances" were taking place In North-
ern Ireland and the attempts by Mackin and
McMullen to kill British soldiers were natural inci-
dents of these disturbances.
(With respect to the Seventh Circuit decision in
Abu Fain] I find shocking the notion that the "po-
litical offense" exception is cut so far loose from
any ethical mooring that Abu Eain's defense team
could argue in apparent good faith that terror
bombing of civilians is a legitimate technique in an
"insurrection-liberation struggle," and that the po-
litical offense exception prevents extradition for
such a crime. It was a sad spectacle to see a former
Attorney General of the United States, represent-
ing Abu Eatn, stand before the Seventh Circuit and
utter that bankrupt shibboleth of moral relativism,
"one man's terrorist is another man's freedom
fighter." Second, the court's application of the [Ju-
dicial] test for a political offense] in Abu Fain was
ultimately just as mechanical as that in Mackin
and McMullen and left the unmistakable impres-
sion that the court would have dented extradition if
Abu Rain had directed his attacks at Israeli mili-
tary or governmental officials. . . . We should, I
suppose, feel some relief that the Seventh Circuit
recognized that the killing of children on the
streets of a resort town did not constitute a "politi-
cal offense."
Hannay has raised the issue factually (see
Hannay, supra note 55 at 382) but has not speculat-
ed on the line the Seventh circuit would draw with
respect to the bombing assassination of Lord Louis
Mountbatten that incidentially killed his grandson,
a local youth, and the mother-in-law of his daugh-
ter.
22 See supra note 52, and accompanying text.
"See, e.g., Art. 10(6), Extradition Treaty, United
States-Mexico, signed May 4, 1978. ? U.S.T.
T.I.A.A. 9656 (entered into force January 25, 1980).
The United States will also be at party to the Con-
vention Abolishing the Requirement of Legaliza-
tion for Foreign Public Documents, dune at The
Hague, October 26, 1960, 527 U.N.T.S. 189 (ratified
by the Senate Nov. 28 1979). This Convention will
eliminate a substantial portion of the auteenticia
lion requirement with respect to extradition docu-
ments submitted by one signatory country to an-
other.
"It is anticipated that in most cases the foreign
state's diplomatic or consular personnel assigned to
the United States will make the certification re-
quired by the section, thereby relieving U.S. (;ipio-
matic and consular officers abroad of this chore.
See, generally, United States v Galairs, 419 P.
Supp. illS (1). Conn. 1977), road on other grouldi:
568 F.2d 234 (2d Cir. 1978).
"See Rule 5.1, Federal Rules of Criminal Piece-
dura.
ev Greci v. Pinkness, supra note 41; Broach v.
Raiche, supra note 39.
"US, ea rel. Sakagucht v. ICaulukukui, 521 F
726, 728 (9th Cir. 1975); Shapiro V. Ferrandria.
supra note 47.
"This requirement is consisiont with the prp.c-
flee followed by the courts today. See its pin, V.
Voices, ? F.2d (9t5 Cir. July 6, 1981; Shapiro v.
Ferrandina, supra note 47.
"Present law (18 U.S.C. 3184) only requires that
the court send the Secretary a trar,script of the les.
timony taken at the hearing. By providing tile ex-
ecutive branch with a fuller record of the procead
Ings the Secretary of State will be more fully in
formed in making his decision on extradition.
Collins v. Miller, 252 U.S. 364, 369 (1920).
"See, e.g., Sindona v. Giant, supra note 43.
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S 416 CONGRESSIONAL RECORD ? SENATE January 27, 1988
Is Hooker v. Klein, 573 F.2d 1360 (9th Cir. 1978);
United States v. Mackin, supra note 2.
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CONGRESSIONAL RECORD ? SENATE
different meanings In different contexts,
and the United States is under no legal ar
moral obligation to shelter a fugitive from
extradition simply because he claims a polit-
ical motive for his crime. (Professor Steven
Lubet testifying before the House Commit-
tee on the Judiciary, Subcommittee on
Crime, February 3, 1982)."1
While the assertion of a "pure" political
offense is seldom at issue in extradition pro-
ceedings, claims of "relative" political of-
fenses have been litigated in a number of
extradition cases and have generated consid-
erable academic debate about its present
day utility. During the east decade, particu-
lar concern has been raised over the use of
the exception to bar extradition for acts of
international terrorism which ostensibly are
associated with political activity or protest.
Por example, in two recent cases, by con-
vincing the courts to invoke the political of-
fense exception, members of the Provisional
Irish Republican Army (PIRA) successfully
resisted extradition to the United Kingdom
for violent crimes that they were alleged to
have committed against a British soldier
and government property.3 However, in an-
other case involving a PLO member, Zyad
Abu Eain, who was sought by the Israeli
government for his participation in a bomb-
ing randomly directed at civilians in a mar-
ketplace in the country, the court refused to
apply the political offense exception.4 Sub-
sequently, Abu Eain was extradited to Israel
to stand trial.
The PIRA cases and the case of Abu Eain
have raised serious questions about the abil-
ity of the courts to interpret consistently
the political offense exception. Both the
Carter and Reagan Administrations have
argued that because of loose and inconsist-
ent application of the exception, the United
States may be viewed by international ter-
rorists as a potential safehaven where their
crimes may go unpunished if presented in
the guise of justifiable political actions.
Consequently, both Administrations have
urged successively that clear guidelines be
established to guide the determination of
political offense exceptions. It has also been
suggested, as reflected in the version of S.
1940 reported by the Judiciary Committee
that the courts are ill-equipped to decide
issues that hum Bo heavily on questions of
U.S. foreign policy and that, consequently,
the Secretary of State should be vested with
the sole authority to determine the applica-
tion of the exception subject to limited judi-
cial review.
? ?
&ACTION-BY-SECTION ANALYSES OF Trioss
PROVISIONS OF 13. 1940 AS REPORTED BY THE
COMMIT= ON THE JUDICIARY, PROPOSED ro
SZ A10ENDZD VW THE COMMITTEE ON FOREIGN
RELATIONS
The major provision of S. 1940, as report-
ed by the Committee on the Judiciary, and
their comparison to present federal law are
set forth in Senate Report No. 97-331. The
Report of the Committee on F'oreign Rela-
tions relates moiety to a discussion and anal-
yses of the amendments set forth above as
reported on May 19 by the Committee on
Foreign Relations.
Section 3194(a), as reported by the Com-
mittee on the Judiciary, provides that the
courts do not have jurisdiction to determine
? Professor Steven Lubet testifying before the
House Committee on the Judiciary, Subcommittee
on Crime. February 3, 1982.
? United States v. Mackin?SO C.R. !disc. 1 (S.D.
N.Y. 1981) Gorol Appeal Dismissed with Opinion,
Sub Nom?IP2d-1981.
? Zyod Abu Rain v. Wilkes, 041 F.2d 504 (7th Cir.
1981)
whether extradition is sought for a political
offense or because of a person's political
belief. In turn, the authority to make such
determinations Is vested in the Secretary of
State pursuant to Section 3196(a)C3).
According to the Report of the Judiciary
Committee:
"Section 3196 (aX3) specifies that the Sec-
retary of State moat decline to order surren-
der of a person if,, after taking into account
certain statutory principles generally elimi-
nating specified types of crimes from the
political offense exception (e.g., crimes of
violence and drug trafficking), he is per-
suaded that the person's extradition is
sought for one of these reasons. The provi-
sions taken together provide that the Secre-
tary of State shall have jurisdiction to
decide the applicability of the "political of-
fense" exception .to extradition contained in
most extradition treaties, such decision to
be consistent with the statutory guidelines
and reviewable in the United States courts
of appeal based on a substantial evidence
standard. (Report No. 97-331, p. 14)."
The Committee on Foreign Relations pro-
poses amending section 3194(a), as reported
by the Committee on the Judiciary, to
permit the appropriate courts to make find-
ings concerning the application of the politi-
cal offense exception. While it can be
argued that the Secretary of State is gener-
ally better able than the courts to assess the
circumstances justifying a political offense
exception, the Committee favors the reten-
tion of some role for the judicial process.
Most countries with whom the U.S. has ex-
tradition agreements permit the courts to
make such determinations. Moreover.
Aroerkan courts have reviewed political of-
fense questions for nearly one hundred
years. Preserving limited court jurisdiction
to interpret the exception pursuant to legis-
lative guidelines would continue this well-es-
tablished tradition. It would also provide a
check against an executive authority that
could, depending upon the political sensi-
tivities involved in a given case, result in in-
consistent and unsound application of the
political offense exception.
However, while the Committee on Foreign
Relations has concluded that the courts
should retain some jurisdiction over politi-
cal offense cases, it is also very clear that in
order to effect more consistent application
of the exception, the courts must be given
clearer guidelines with respect to certain
classes of behavior that should never be
considered political offense and others
which should only be considered political of-
fenses in extraordinary circumstances. This
proposed guidance Is set forth in section
3194 (e)(1) and (eX2) as reported by the
Committee on Foreign Relations and closely
resembles the guidelines proposed for the
Secretary of State by the Judiciary Commit-
tee in section 3196(aX3) as reported by that
Committee.
The Committee on Foreign Relations has
proposed its amendments to section 3194 of
S. 1940 based on the belief that it is inap-
propriate to apply the political offense ex-
ception to conduct that the international
community has taken formal steps to pro-
hibit and punish. Drawing on this standard,
the Committee has concluded that the polit-
ical offense exception should not be consid-
ered by the court when to apply it would
have the effect of protecting behavior that
is specifically outlawed internationally. In-
cluded in this category would be offenses
within the scope of either the Hague Con-
vention on Seizure of Aircraft; the Montreal
Convention on the Suppression of Unlawful
Acts Against the Safety at Civil Aviation;
the Convention on the Physical Protection
of Nuclear Materials; the International Con-
vention Against the Taking of Hostages; the
S417
Convention on the Ptmishment of Crimes
Against Internationally Protected Persons,
Including Diplomatic Ascetic other multi-
lateral treaties obligating the U.S. to either
extradite or prosecute persons whose of-
fenses are contemplated by the applicable
treaty; and the manufacture, sale, or distri-
bution of narcotics. The proposed amend-
ment creating section 3194(eX1) establishes
an absolute prohibition against the courts
considering such acts to be political of-
fenses. The intended effect of this prohibi-
tion is to deter international terrorists and
other crimimals from using the United
States as a safehaven from prosecution for
crimes they claim to be political but whose
characteristics violate overriding interna-
tional legal standards.
While the Committee recognizes that cur-
rent case law continues to apply to offenses
not specified in section 3194 (e)(1) or (c)(2).
it believes that a different standard should
apply to thaw offenses involving the use of
firearms or explosives, or other behavior in-
volving the use of force or violence as set
forth in section 3194(2). In such cases, ex-
traordinary circumstances must be demon-
strated by the person resisting extradition
in order for the appropriate court to find
that a political offense has been committed.
This standard is comAstent with the guide-
lines already set forth in S. 1940 and allows
for the political offense exception to be ap-
plied potentially in that very narrow class of
cases where an otherwise common crime
may be transformed by the political content
in which it is committed.
The Committee intends that the burden
of the person resisting extradition in dem-
onstrating such extraordinary circum-
stances should be a considerable one. While
current case law may provide useful guid-
ance it is not intended, for example, that
the mere existence of a rebellion, civil war,
riot or other disturbance, during which the
offense in question is committed, should
result in a finding that the offense itself is
political in nature.* Nor should it be suffi-
cient simply to show that the motivation of
the individual committing the act?however
sincere or noble?was related to a political
objective. It should not be the policy of the
United States to encourage or condone vio-
lent or other criminal behavior simply be-
cause it is the view of the persons commit-
ting such acts that they are somehow con-
nected with a political activity or have an
obstensible political purpose or justification.
However, it should also not be the policy of
the United States to render up automatical-
ly to foreign authorities an individual who,
in the course of seeking to exercise legiti-
mate civil or political rights in a non-violent
manner, is placed in such a position that he
has no reasonable choice except to commit
Two recent decisions in particular, the Mackin
and McMullen cases, applied what is generally
called the "Castioni test", after the 19th century
English case of In re Carrion( which Is commonly
understood as having established a two-part test
Which must be met for a common crime to be re-
garded as a relative political offense: (1) the act
must have been committed during an uprising, In-
volving a group of which the accused was a
member, and (2) the act must have been "incidental
to" the political uprising, that is, done in further-
ance of or with the intention of assisting the upris-
ing. The court in Castioni Justified its decision not
to extradite by saying that "one cannot look too
hardly and weigh in golden scales the acts of men
hot in their political excitement." Applying the
test, the courts in the above-mentioned cases
denied requests by the Government of the United
Kindom for the extradition of two members of the
Provisional Irish Republican Army who were al-
leged to have committed violent crimes in Northern
Ireland but which %were deemed "political offenses"
by the U.S. courts.
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CONGRESSIONAL RECORD ? SENATE January 27, 1983
an otherwise criminal act. For the court to
make such a determination the test should
be focused upon the individual and whether
the offense for which he is sought was a
consequence of the violation of his interna-
tionally recognized civil or political rights
by the state requesting extradition. Acts of
Indiscriminate or excessive violence or acts
of deliberate brutality would presumably
never fall within the exception.
In short, while the occasions for recogniz-
ing the political offense exception will nec-
essarily be few and far between, the Com-
mittee believes that it should continue to be
within the authority of U.S. courts to deter-
mine that the exception should apply, sub-
ject to the procedural innovations and ex-
clusions introduced in this legislation.
The belief that such findings are expected
to be rare is further reinforced by the
amendment proposed by the Foreign Rela-
tions Committee in section 3194(e) provid-
ing that the person claiming application of
the exception must establish by clear and
convincing evidence that any offense for
which such person may be subject to pros-
ecution or punishment if extradited is a po-
litical offense. This necessarily includes of-
fenses that may not be subject to the ex-
traordinary circumstances standard estab-
lished in section 3194(eX 2). Shifting the
burden of the proof to the person seeking
application of the political offense excep-
tion reinforces the Committee's belief that
Its legitimate application should be infre-
quent and also in accords with the guide-
lines established in section 3194(e) (1) and
(2).
Section 3194(g) (1) and (g) (2) restrict the
jurisdiction of the courts with respect to
questions that may turn largely on the con-
duct of U.S. foreign policy, thus falling
within the domain of the executive branch.
Section 3194(gX1) clearly establishes the
sole authority of the Secretary of State to
deny extradition if a foreign state is seeking
the person's return for the purposes of pros-
ecuting or punishing the person because of
his or her political opinions, race, religion,
or nationality and if the applicable extradi-
tion agreement provides the Secretary with
the authority to deny extradition for such
reasons. This authority would, when appli-
cable, follow the rule of non-inquiry where-
by the courts refrain from making findings
on issues largely concerned with the inter-
nal political or social circumstances in a for-
eign state. The Secretary of State, however,
is considered uniquely qualified to make
such inquiries as this practice is already a
significant aspect of his foreign policymak-
ing responsibilities. Section 3194(g)(2) pro-
vides the Secretary with the sole authority
to determine if the person's extradition is
Incompatible with humanitarian consider-
ations, such as the age or infirmity of the
person being sought as well as the propor-
tionality of the punishment that may be im-
posed in relation to the crime that may
have been committed. This authority may
be exercised so long as the applicable extra-
dition agreement provides the Secretary
with the authority to deny extradition for
such reasons. Sections 3194(gX1) and (gX2)
should in most cases provide the preferred
basis for appropriate relief from extradition
on grounds consistent with the traditions,
heritage, and foreign policy principles of
this country. Further, the Committee on
Foreign Relations considers it desirable to
provide for the authority established in sec-
tions 3194(gX1) and (gX2) in any future ex-
tradition agreements to which the United
States may become a party.
Section 3194(gX3) as proposed by the
Committee on Foreign Relations requires
the Secretary of State to consult with the
appropriate Offices and Bureaus of the De-
partment of State, including the Bureau of
Human Rights and Humanitarian Affairs.
!inquiring the Secretary to consult with
that Bureau is intended to ensure that the
Secretary is fully advised on the political
and social conditions in the foreign state at
Issue. It slab reinforces the Committee's
belief that determinations by the Secretary
of State concerning foreign state motivation
in requesting extradition, as well as any de-
terminations involving humanitarian consid-
erations, should build upon existing princi-
ples governing asylum requests. As such
they should be executive determinations
and not judicial findings. Presently, the
13ureau of Human Rights and Humanitarian
Affairs advises the Secretary of State and
the Department of Justice on asylum. issues.
The proposed amendment is, therefore, in
keeping with the Bureau's current role in
such matters.
The remaining amendments proposed by
the Committee on Foreign Relations and
contained in section 3196 of S. 1940 as re-
ported by the Committee on the Judiciary
are technical revisions setting forth the au-
thority of the Secretary of State in matters
relating to international extradition in ac-
corchurce with the amendments proposed by
the Committee on Foreign Relations in sec-
tion 3194 supra.
S. 220
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That this
Act may be cited as the "Extradition Act of
1982".
Sec. 2. Chapter 209 of title 18, United
States Code, is amended as follows:
(a) Section 3181 iudeleted.
(b) Section 3182 is redesignated as section
"3181."
(c) Section 3183 is redesignated as section
"3182" and is amended by striking out "or
the Panama Canal Zone" in the first sen-
tence.
(d) A new section 3183 is added as follows:
"93183. Payment of fees and costa
"All costa or expenses incurred in any in-
terstate rendition proceeding and appre-
hending, securing, and transmitting a fugi-
tive shall be paid by the demanding authori-
ty.".
(e) Sections 3184 through 3195 are de-
(f) The chapter heading and section anal-
ysis are amended to read as follows:
"CHAPTER 209?INTERSTATE
RENDITION
"3181. Fugitives from State or Territory to
State, District, or Territory.
"3182. Fugitives from State, Territory or
Possession into extraterritorial
jurisdiction of the United
States.
"3183. Payment of fees and costs.".
Sem 3. A new chapter 210 of title 18 of the
United States Code is added as follows:
"CHAPTER 210?INTERNATIONAL
EXTRADITION
?sec.
"3191. Extradition authority in general.
"3192. Initial procedure.
"3193. Waiver of extradition hearing and
consent to removal.
"3194. Extradition hearing.
"3195. Appeal.
"3196. Surrender of a person to a foreign
state.
"3197. Receipt of a person from a foreign
state.
"3198. General provisions for chapter.
'13191. Extradition authority in general
"The United States may extradite a
person to a foreign state pursuant to this
chapter only if?
"(a) there is a treaty concerning extradi-
tion between the United States and the for-
eign state; and
"(b) the foreign state requests extradition
within the terms of the applicable treaty.
'13192. Initial procedure
"(a) IN DENERAL.?The Attorney General
may file a complaint charging that a person
is extraditable. The Attorney General shall
file the complaint in the United States dis-
trict court?
"(1) for the district in which the person
may be found; or
"(2) for the District of Columbia, if the
Attorney General does not know where the
person may be found
"(b) Commanrr.?The complaint shall be
made under oath or affirmation, and shall
specify the offense for which extradition is
sought. The complaint?
"(1) shall be accompanied by a copy of the
request for extradition and by the evidence
and documents required by the applicable
treaty; or
"(2) shall be accompanied by the materi-
als specified in paragraph (1)?
"(A) shall contain?
"(1) information sufficient to identify the
person sought;
"(11) a statement of the essential facts con-
stituting the offense that the person is be-
lieved to have committed, or a statement
that an arrest warrant for the person is out-
standing in the foreign state; and
"(iii) a description of the circumstances
that justify the person's arrest; or
-(B) shall contain such other information
as is required by the applicable treaty;
and shall be supplemented before the extra-
dition hearing by the materials specified in
paragraph (1).
"(c) Annear on Summons.?Upon receipt of
a complaint, the court shall issue a warrant
for the arrest of the person sought, or, if
the Attorney General so requests, a sum-
mons to the person to appear at an extradi-
tion hearing. The warrant or summons shall
be executed in the manner prescribed by
rule 4(d) of the Federal Rules of Criminal
Procedure. A person arrested pursuant to
this section shall be taken without unneces-
sary delay before the nearest available court
for an extradition hearing.
"(d) DETENTION OR RELEASE OF ARRESTED
PERSON.?
"(1) The court shall order that a person
arrested under this section be held in offi-
cial detention pending the extradition hear-
ing unless the person establishes to the sat-
isfaction of the court that special circum-
stances require his release.
"(2) Unless otherwise provided by the ap-
plicable treaty, if a person is detained pur-
suant to paragraph (1) in a proceeding in
which the complaint is filed under subsec-
tion (bX2), and if,.within sixty days of the
person's arrest, the court has not received?
"(A) the evidence or documents required
by the applicable treaty; or
"(B) notice that the evidence or docu-
ments have been received by the Depart-
ment of State and will promptly be trans-
mitted to the court; the court may order
that the person be released from official de-
tention pending the extradition hearing.
"(3) If the court orders the release of the
person pending the extradition hearing, it
shall impose conditions of release that will
reasonably assure the appearance of the
person as required and the safety of any
other person and the community.
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'13193. Waiver a eztradition hearing and con-
sent to removal
"(a) hiroasurto THE COURT OF WAIVER AND
CONSENT.?A person against whom a com-
plaint Is filed may waive the requirements
of formal extradition proceedings, including
an order of surrender, by informing the
court that he consents to removal to the
foreign state.
"(b) INQUIRY BY THE COURT.?The court,
upon being informed of the person's consent
to removal, shall?
"(1) inform the person that he has a right
to consult with counsel and that, if he is fi-
nancially unable to obtain counsel, counsel
may be appointed to represent him pursu-
ant to section 3006A; and
"(2) address the person to determine
whether his consent is?
"(A) voluntary, and not the result of a
threat or other improper inducement; and
"(B) given with full knowledge of its con-
sequences, including the fact that it may
not be revoked after the court has accepted
it.
"(c) FINDING OF CONSENT AND ORDER OF RE-
MOVAL.?If the court finds that the person's
consent to removal is voluntary and given
with full knowledge of its consequences, it
shall, unless the Attorney General notifies
the court that the foreign state or the
United States objects to such removal, order
the surrender of the person to the custody
of a duly appointed agent of the foreign
state requesting extradition. The court shall
order that the person be held in official de-
tention until surrendered.
"(d) LIMITATION ON DETENTION PENDING
REMOVAL.?A person whom the court orders
surrendered pursuant to subsection (c) may,
upon reasonable notice to the Secretary of
State, petition the court for release from of-
ficial detention if, excluding any time
during which removal is delayed by judicial
proceedings, the person is not removed from
the United States within thirty days after
the court ordered the person's surrender.
The court may grant the petition unless the
Secretary of State, through the Attorney
General, shows good cause why the petition
should not be granted.
"II 3194. Extradition hearing
"(a) IN GENERAL.?The court shall hold a
hearing to determine whether the person
against whom a complaint is filed is extra-
ditable as provided in subsection (d), unless
the hearing is waived pursuant to section
3193. The court does not have jurisdiction
to determine?
's].) the merits of the charge against the
person by the foreign state;
"(2) whether the foreign state is seeking
the extradition of the person for the pur-
pose of prosecuting or punishing the person
for his political opinions, race, religion, or
nationality; or
whether the extradition of (be person
to the foreign state seekir4 his ret urn would
be incompatible with humanitarian consid-
erations.
The hearing shall be held as soon as practi-
cable after the arrest of the person or is.su-
anre of the summons.
b) RIGHTS OF THE PERSON Souemr.--The
court shall inform the person of the limited
parpoae of the hearing, and shall inform
him that?
'(1) he has the right to be represented by
ccuns;i and that, if he is financially unable
to obtain counsel, counsel may be appointed
to represent him pursuant to section 3006A;
and
"(2) he may cross-examine witnesses who
appear against num and may introduce evi-
dence in his own behalf with respect to the
matters set forth in subsection (d).
'.(e) EVIDENCE.?
"(1) a deposition, warrant, or other docu-
ment, or a copy thereof, is admissible as evi-
dence in the hearing if ?
"(A) it is authenticated in accordance with
the provisions of an applicable treaty or law
of the United States;
"(B) it is authenticated in accordance with
the applicable law of the foreign state, and
such authentication may be established con-
clusively by a showing that?
"(i) a judge, magistrate, or other appropri-
ate officer of the foreign state has signed a
certification to that effect; and
"(ii) a diplomatic or consular officer of the
United States who is assigned or accredited
to the foreign state, or a diplomatic or con-
sular officer of the foreign state who is as-
signed or accredited to the United States,
has certified the signature and position of
the judge, magistrate, or other officer; or
"(C) other evidence is sufficient to enable
the court to conclude that the document is
authentic.
"(2) A certificate or affidavit by an appro-
priate official of the Department of State is
admissible as evidence of the existence of a
treaty or its interpretation.
"(3) If the applicable treaty requires that
such evidence be presented on behalf of the
foreign state as would justify ordering a
trial of the person if the offense has been
committed in the United States, the require-
ment is satisfied if the evidence establishes
probable cause to believe that an offense
was committed and that the person sought
committed it.
(d) Fonnstos.?The court shall find that
the person is extraditable if it finds that?
"(1) there is probable cause to believe that
the person arrested or summoned to appear
is the person sought In the foreign state;
"(2) the evidence presented is sufficient to
support the complaint under the provisions
of the applicable treaty;
"(3) no defense to extradition specified in
the applicable treaty, and within the juris-
diction of the court, exists; and
"(4) the act upon which the request for
extradition is based would constitute an of-
fense punishable under the laws of?
"(A) the United States;
"(B) the State where the fugitive is found;
or
"(C) a majority of the States.
The court may base a finding that a person
is extratttable upon evidence consisting, in
hole or in part, of hearsay or of properly
certified documents.
"(el POLITICAL OFFENSES AND OFFENSES OF
A PCISTICAL CHARACTER.?The court shall not
find the person extraditable after a hearing
under this section if the court finds that the
person has established by clear and convinc-
ing evidence that any offense for which
such person may be subject to prosecution
or punishment if extradited is a political of-
fense or an offense of a political character.
F-or the purposes of this subsection, the
terms "pclitical offense" and "offense of a
political character"-
-(1) do not include?
"(A) an offense within the scope of the
Convention for the Suppression of Unlawful
Seizure of Aircraft, signed at The Hague on
December 16, 1970;
"(B) an offense within the scope of the
Convention for the Suppression of Unlawful
Acts Against the Safety of Civil Avis Lion,
signed at, Montreal on September 23, 1971;
"(C) a serious offense invciving an attack
against the life, physical integrity, or liberty
of internationally protected persons (as de-
fined in section 1116 of this title), including
diplomatic agents;
"(D) an offense with respect to which a
multilateral treaty obilgates the Uaited -
States to either extradite or prosecute a
person accused of the offense;
ATE S419
"(E) an offense that consists of the manu-
facture, importation, distribution, or sale of
narcotics or dangerous drugs;
"(F) an offense that consists of rape;
"(G) an attempt or conspiracy to commit
an offense described in subparagraphs (A)
through (F) of this paragraph, or participa-
tion as an accomplice of a person who com-
mits, attempts, or conspires to commit such
an offense.
"(2) Except in extraordinary circum-
stances, do not include?
"(A) an offense that consists of homicide,
assault with intent to commit serious bodily
Injury, kidnapping, the taking of a hostage,
or a serious unlawful detention;
"(B) an offense involving the use of a fire-
arm (as such term is defined in section 921
of this title) if such use endangers a person
other than the offender;
"(C) an attempt or conspiracy to commit
an offense described in subparagraphs (A)
or (B) of this paragraph, or participation as
an accomplice of a person who commits, at-
tempts. or conspires to commit such an of-
fense.
The court shall not take evidence with re-
spect to, or otherwise consider, an issue
under this subsection until the court deter-
mines the person is otherwise extraditable.
Upon motion of the Attorney General or
the person sought to be extradited, the
United States district court may order the
determination of any issue under this sub-
section by a judge of such court.
"(f) CERTIFICATION OF FINDINGS TO THE
SECRETARY OF STATE.?
"(1) If the court finds that the person is
extraditable, it shall state the reasons for its
findings as to each charge or conviction, and
certify its findings, together with a tran-
script of the proceedings, to the Secretary
of State. The court shall order that the
person be held in official detention until
surrendered to a duly appointed agent of
the foreign state, or until the Secretary of
State declines to order the person's surren-
der.
"(2) If the court finds that the person is
not extraditable, it shall state the reasons
for its findings as to each charge or cenvic-
tion, and certify the findings, together with
such report as the court considers appropri-
ate, to the Secretary of State. The Attorney
General may commence a new action for ex-
tradition of the person only uiih he agree-
ment of the Secretary of State.
'13195. Appeal
"(a) IN GENERAL.--Either party may
appeal, to the appropriate Uniied States
court of appeals, the findings by the district
court on a complaint for extradition. The
appeal shall be taken in the manner pre-
scribed by rules 3 and 4(b) of the Federal
Rules of Appellate Procedure, and shall be
heard as soon as practicable after the filing
of the notice of appeal. Pending d(e,ormina-
tion of the appeal, the district court shall
stay che extradition of a person found ex-
traclitabie.
"(b) DETENTION OR RELEASE PENDING
ADDER 1.?If the district court found that the
person sought is-
-(1) extraditable, it shall order that the
person be held in official detention pending
determination of the appeal, or pending a
finding by the court of appeals that the
person has established that special eireuni-
stances require his release;
"(2) not extraditable, it shall order that
the person be released pending determina-
tion of an appeal unless the court is satis-
fied that the person is likely to flee or to en-
danger the safety of any other person or the
community.
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If the court orders the release of a person
pending determination of an appeal, it shall
impose conditions of release that will rea-
sonably assure the appearance of the person
as required and the safety of any other
person and the community.
"(c) Strassquzirr lbenzw.?No court has
jurisdiction to review a finding that a
person is extraditable unless the person has
exhausted his remedies under subsection
(a). If the person files a petition for habeas
corpus or for other review, he shall specify
whether the finding that he is extraditable
has been upheld by a court and if so, shall
specify the court, the date, and the nature
of each such proceeding. A court does not
have jurisdiction to entertain a person's pe-
tition for habeas corpus or for other review
if his commitment has previously been
upheld, unless the court finds that the
grounds for the petition or appeal could not
previously have been presented.
3196. Surrender of a person to a foreign state
"(a) RESPONSIBILITY OF THE SECRETARY OF
STATE.?If a person is found extraditable
pursuant to section 3194, the Secretary of
State, upon consideration of the provisions
of the applicable treaty and this chapter?
"(1) may order the surrender of the
person to the custody of a duly appointed
agent of the foreign state requesting extra-
dition;
"(2) may order such surrender of the
person contingent on the acceptance by the
foreign state of such conditions as the Sec-
retary considers necessary to effectuate the
purposes of the treaty or the interest of jus-
tice; or
? "(3) may decline to order the surrender of
the person if the Secretary Is persuaded
that?
"(A) the foreign state is seeking extradi-
tion of the person for the purpose of pros-
ecuting or punishing the person because of
his political opinions, race, religion, or na-
tionality; or
"(B) the extradition of the person to the
foreign state seeking his return would be in-
compatible with humanitarian consider-
ations.
The Secretary may order the surrender of a
person who is a national of the United
States unless such surrender is expressly
forbidden by the applicable treaty or by the
laws of the United States. A decision of the
Secretary under paragraphs (1), (2), or (3) is
a matter solely within the discretion of the
Secretary and is not subject to judicial
review: Provided, however, That in deter-
mining the application of paragraph (3), the
Secretary shall consult with the appropriate
bureaus and offices of the Department of
State, including the Bureau of Human
Rights and Humanitarian Affairs.".
"(b) Norma or Dscnnox.?The Secretary
of State, upon ordering a person's surrender
or denying a request for extradition in
whole, or in part, shall notify the person
sought, the diplomatic representative of the
foreign state, the Attorney General, and the
court that found the person extraditable. If
the Secretary orders the person's surrender,
he also shall notify the diplomatic repre-
sentative of the foreign state of the time
limitation on the person's detention that is
provided by subsection (c)(2).
"(C) LIMITATION ON DETENTION PENDING
DzasIon OR REMOVAL?A person who is
found extraditable pursuant to section 3194
may, upon reasonable notice to the Secre-
tary of State, petition the court for release
from official detention if, excluding any tme
during which removal is delayed by judicial
proceedings?.
"(1) the Secretary does not order the per-
son's surrender, or decline to order the per-
son's surrender, within forty-five days after
his receipt of the courts findings and the
transcript of the proceedings; or
' "(2) the person is not removed from the
United States within thirty days after the
Secretary ordered the person's surrender.
The court may grant the petition unless the
Secretary of State, through the Attorney
General, shows good cause why the petition
should not be granted.
'13191. Receipt of a person from a foreign state
"(a) APPOINTMENT AHD AUTHORITY OF RE-
mimic Anzrr.?The Attorney General shall
appoint an agent to receive, from a foreign
state, custody of a person accused of a Fed-
ersl, State, or local offense. The agent shall
have the authority of a United States mar-
shal. The agent shall convey the person di-
rectly to the Federal or State jurisdiction
that sought his return.
"(b) TEMPORARY EXTRADITION TO THE
UNITED STATES.?If a foreign of
delivers
custody of a person accused of a Federal,
State, or local offense to an agent of the
United States on the condition that the
person be returned to the foreign state at
the conclusion of criminal proceedings in
the United States, the Bureau of Prisons
shall hold the person in custody pending
the conclusion of the proceedings, and shall
then surrender the person to a duly ap-
pointed agent of the foreign state. The
return of the person to the foreign state is
not subject to the requirements of this
chapter.
'1 3198. General provisions for chapter
"(a) DEFINITI0N5.?A5 used in this chap-
ter?
"(1) 'court' means
"(A) a United States district court estab-
lished pursuant to section 132 of title 28,
United States Code, the District Court of
Guam, the District Court of the Virgin Is-
lands, or the District Court of the Northern
Mariana Islands, or
"(B) a United States magistrate author-
ized to conduct an extradition proceeding;
"(2) 'foreign state', when used in other
than a geographic sense, means the govern-
ment of a foreign state;
"(3) 'foreign state', when used in a geo-
graphic sense, includes all territory under
the jurisdiction of a foreign state, including
a colony, dependency, and constituent part
of the state; its air space and territorial
waters; and vessels or aircraft registered in
the state;
"(4) 'treaty' includes a treaty, convention,
or international agreement, bilateral or
multilateral, that is in force after advice and
consent by the Senate; and
"(5) 'warrant', as used with reference to a
foreign state, means any judicial document
authorizing the arrest or detention of a
person accused or convicted of a crime.
"(b) PAYMENT OF Pass AND COSTEL?EIlleSS
otherwise specified by treaty, all transporta-
tion costa, subsistence expenses, and trans-
lation costs incurred in connection with the
extradition or return of a person at the re-
quest of?
"(1) a foreign state, shall be borne by the
foreign state unless the Secretary of State
directs otherwise;
"(2) a State, shall be borne by the State;
and
"(3) the United States, shall be borne by
the United States.".
Six. 4. This Act shall take effect on the
first day of the first month after enactment,
and shall be applicable to extradition and
rendition proceedings commenced thereaf-
ter.
Mr. THURMOND. I might mention
that the Judiciary Committee is begin-
ning to hold hearings now on orga-
nized crime. The first hearing is being
held today in room 325 of the Russell
Building. The Attorney General is the
first witness today. The Director of
the Federal Bureau of Investigation
follows him. On other days, we will be
holding hearings on organized crime.
Some hearings will be held in cities
outside of Washington in various parts
of the country.
As I stated in my statement a few
moments ago, crime is rated by the
American people as the biggest prob-
lem in this country next to the econo-
my. We must take remedial action in
this Congress to guarantee the safety
of our citizens in this Nation.
Mr. President, I commend the var-
ious Senators who have cosponsored
these bills. The bills will indicate the
names of the Senators. On some bills
we have more cosponsors than others,
but I am proud that they have joined
on these bills. I hope others will see fit
to join us since we intend to prosecute
promptly the passage of these bills so
that the American people can benefit
from this legislation.
By Mr, THURMOND:
8.221, A bill to temporarily suspend
the duty on certain menthol feed-
stocks tmtil June 30, 1986; to the Com-
mittee on Finance.
SUSPENSION OF DUTY ON CERTAIN FEEDSTOCKS
Mr. THURMOND. Mr. President,
today I am introducing a bill to tempo-
rarily suspend the duty on certain
menthol feedstocks until June 30,
1986. This bill is identical to one I in-
troduced late in the 97th Congress;
however, there was insufficient time
for the Senate to consider this legisla-
tion before the end of the session.
The feedstocks that this bill con-
cerns are utilized by domestic manu-
facturers to produce synthetic
menthol. A duty is applied to these
chemicals when they are imported to
the United States from West Ger-
many. Since there are no domestic in-
dustries that produce these particular
feedstocks, this duty does not afford
protection to any chemical manufac-
turer in the United States. TO the con-
trary, it imposes an unnecessary eco-
nomic cost on the U.S. menthol indus-
try by increasing the production costs
for that industry.
Mr. President, this unnecessary duty
only compounds the problems that
face our domestic menthol industry.
In 1977, when mainland China was
granted most-favored-nation status,
the duty on Chinese menthol fell from
50 cents per pound to 17 cents per
pound. This forced our domestic
menthol producers to compete with
highly subsidized and cheaply pro-
duced menthol imports. This situation
coupled with tariffs on menthol im-
ports imposed by countries such as
Japan, have placed our domestic pro-
ducers of menthol at a competitive dis-
advantage.
Mr. President, I realize that this leg-
islation does not represent a complete
solution to the numerous trade dl! fl-
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98TH CONGRESS
1ST SESSION
S. 220
II
To amend chapter 209 of title 18, United States Code, relating to extradition, and
for other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 27 (legislative day, JANUARY 25), 1983
Mr. THURMOND introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To amend chapter 209 of title 18, United States Code, relating
to extradition, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Extradition Act of 1983".
4 SEC. 2. Chapter 209 of title 18, United States Code, is
5 amended as follows:
6 (a) Section 3181 is deleted.
7 (b) Section 3182 is redesignated as section "3181".
8 (c) Section 3183 is redesignated as section "3182" and
9 is amended by striking out "or the Panama Canal Zone" in
10 the first sentence.
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1 (d) A new section 3183 is added as follows:
2 "? 3183. Payment of fees and costs
3 "All costs or expenses incurred in any interstate rendi-
4 tion proceeding and apprehending, securing, and transmitting
5 a fugitive shall be paid by the demanding authority.".
6 (e) Sections 3184 through 3195 are deleted.
7 (f) The chapter heading and section analysis are amend-
8 ed to read as follows:
9 "CHAPTER 209?INTERSTATE RENDITION
"3181. Fugitives from State or Territory to State, District, or Territory.
"3182. Fugitives from State, Territory or Possession into extraterritorial jurisdic-
tion of the United States.
"3183. Payment of fees and costs.".
10 SEC. 3. A new chapter 210 of title 18 of the United
11 States Code is added as follows:
12 "CHAPTER 210?INTERNATIONAL EXTRADITION
"Sec.
"3191. Extradition authority in general.
"3192. Initial procedure.
"3193. Waiver of extradition hearing and consent to removal.
"3194. Extradition hearing.
"3195. Appeal.
"3196. Surrender of a person to a foreign state.
"3197. Receipt of a person from a foreign state.
"3198. General provisions for chapter.
13 "? 3191. Extradition authority in general
14 "The United States may extradite a person to a foreign
15 state pursuant to this chapter only if-
16 "(a) there is a treaty concerning extradition be-
17 tween the United States and the foreign state; and
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1 "(b) the foreign state requests extradition within
2 the terms of the applicable treaty.
3 "? 3192. Initial procedure
4 "(a) IN GENERAL.?The Attorney General may file a
5 complaint charging that a person is extraditable. The Attor-
6 ney General shall file the complaint in the United States dis-
7 trict court-
8 "(1) for the district in which the person may be
9 found; or
10 "(2) for the District of Columbia, if the Attorney
11 General does not know where the person may be
12 found.
13 "(b) COMPLAINT.?The complaint shall be made under
14 oath or affirmation, and shall specify the offense for which
15 extradition is sought. The complaint-
16 "(1) shall be accompanied by a copy of the re-
17 quest for extradition and by the evidence and docu-
18 ments required by the applicable treaty; or
19 "(2) if not accompanied by the materials specified
20 in paragraph (1)-
21 "(A) shall contain-
22 "(i) information sufficient to identify the
23 person sought;
24 "(ii) a statement of the essential facts
25 constituting the offense that the person is be-
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1 lieved to have committed, or a statement
2 that an arrest warrant for the person is out-
3 standing in the foreign state; and
4 "(iii) a description of the circumstances
5 that justify the person's arrest; or
6 "(B) shall contain such other information as
7 is required by the applicable treaty;
8 and shall be supplemented before the extradition hear-
9 ing by the materials specified in paragraph (1).
10 "(c) ARREST OR SUMM0NS.?Up011 receipt of a COM-
11 plaint, the court shall issue a warrant for the arrest of the
12 person sought, or, if the Attorney General so requests, a
13 summons to the person to appear at an extradition hearing.
14 The warrant or summons shall be executed in the manner
15 prescribed by rule 4(d) of the Federal Rules of Criminal Pro-
16 cedure. A person arrested pursuant to this section shall be
17 taken without unnecessary delay before the nearest available
18 court for an extradition hearing.
19 "(d) DETENTION OR RELEASE OF ARRESTED
20 PERSON.-
21 "(1) The court shall order that a person arrested
22 under this section be held in official detention pending
23 the extradition hearing unless the person establishes to
24 the satisfaction of the court that special circumstances
25 require his release.
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1 "(2) Unless otherwise provided by the applicable
2 treaty, if a person is detained pursuant to paragraph
3 (1) in a proceeding in which the complaint is filed
4 under subsection (b)(2), and if, within sixty days of the
5 person's arrest, the court has not received-
6 "(A) the evidence or documents required by
7 the applicable treaty; or
8 "(B) notice that the evidence or documents
9 have been received by the Department of State
10 and will promptly be transmitted to the court;
11 the court may order that the person be released from
12 official detention pending the extradition hearing.
13 "(3) If the court orders the release of the person
14 pending the extradition hearing, it shall impose condi-
15 tions of release that will reasonably assure the appear-
16 ance of the person as required and the safety of any
17 other person and the community.
18 "? 3193. Waiver of extradition hearing and consent to
19 removal
20 "(a) INFORMING THE COURT OF WAIVER AND CON-
21 SENT.?A person against whom a complaint is filed may
22 waive the requirements of formal extradition proceedings, in-
23 eluding an order of surrender, by informing the court that he
24 consents to removal to the foreign state.
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1 "(b) INQUIRY BY THE COURT.?The court, upon being
2 informed of the person's consent to removal, shall-
3 "(1) inform the person that he has a right to con-
4 suit with counsel and that, if he is financially unable to
5 obtain counsel, counsel may be appointed to represent
6 him pursuant to section 3006A; and
7 "(2) address the person to determine whether his
8 consent is-
9 "(A) voluntary, and not the result of a threat
10 or other improper inducement; and
11 "(B) given with full knowledge of its conse-
12 quences, including the fact that it may not be re-
13 yoked after the court has accepted it.
14 "(c) FINDING OF CONSENT AND ORDER OF RE-
15 MOVAL.?If the court finds that the person's consent to re-
16 moval is voluntary and given with full knowledge of its con-
17 sequences, it shall, unless the Attorney General notifies the
18 court that the foreign state or the United States objects to
19 such removal, order the surrender of the person to the cus-
20 tody of a duly appointed agent of the foreign state requesting
21 extradition. The court shall order that the person be held in
22 official detention until surrendered.
23 "(d) LIMITATION ON DETENTION PENDING REMOV-
24 AL.?A person whom the court orders surrendered pursuant
25 to subsection (c) may, upon reasonable notice to the Secre-
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1 tary of State, petition the court for release from official de-
2 tention if, excluding any time during which removal is
3 delayed by judicial proceedings, the person is not removed
4 from the United States within thirty days after the court or-
5 dered the person's surrender. The court may grant the peti-
6 tion unless the Secretary of State, through the Attorney
7 General, shows good cause why the petition should not be
8 granted.
9 "? 3194. Extradition hearing
10 "(a) IN GENERAL?The court shall hold a hearing to
11 determine whether the person against whom a complaint is
12 filed is extraditable as provided in subsection (d), unless the
13 hearing is waived pursuant to section 3193. The court does
14 not have jurisdiction to determine-
15 "(1) the merits of the charge against the person
16 by the foreign state;
17 "(2) whether the foreign state is seeking the ex-
18 tradition of the person for the purpose of prosecuting
19 or punishing the person for his political opinions, race,
20 religion, or nationality; or
21 "(3) whether the extradition of the person to the
22 foreign state seeking his return would be incompatible
23 with humanitarian considerations.
24 The hearing shall be held as soon as practicable after the
25 arrest of the person or issuance of the summons.
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1 "(b) RIGHTS OF THE PERSON SOUGHT.?The court
2 shall inform the person of the limited purpose of the hearing,
3 and shall inform him that-
4 "(1) he has the right to be represented by counsel
5 and that, if he is financially unable to obtain counsel,
6 counsel may be appointed to represent him pursuant to
7 section 3006A; and
8 "(2) he may cross-examine witnesses who appear
9 against him and may introduce evidence in his own
10 behalf with respect to the matters set forth in subsec-
11 tion (d).
12 "(c) EVIDENCE.-
13 "(1) A deposition, warrant, or other document, or
14 a copy thereof, is admissible as evidence in the hearing
15 if-
16 "(A) it is authenticated in accordance with
17 the provisions of an applicable treaty or law of
18 the United States;
19 "(B) it is authenticated in accordance with
20 the applicable law of the foreign state, and such
21 authentication may be established conclusively by
22 a showing that-
23 "(i) a judge, magistrate, or other appro-
24 priate officer of the foreign state has signed a
25 certification to that effect; and
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1 "(ii) a diplomatic or consular officer of
2 the United States who is assigned or accred-
3 ited to the foreign state, or a diplomatic or
4 consular officer of the foreign state who is
5 assigned or accredited to the United States,
6 has certified the signature and position of the
7 judge, magistrate, or other officer; or
8 "(C) other evidence is sufficient to enable the
9 court to conclude that the document is authentic.
10 "(2) A certificate or affidavit by an appropriate of-
11 ficial of the Department of State is admissible as evi-
12 dence of the existence of a treaty or its interpretation.
13 "(3) If the applicable treaty requires that such
14 evidence be presented on behalf of the foreign state as
15 would justify ordering a trial of the person if the of-
16 fense had been committed in the United States, the
17 requirement is satisfied if the evidence establishes prob-
18 able cause to believe that an offense was committed
19 and that the person sought committed it.
20 "(d) FINDINGS.?The court shall find that the person is
21 extraditable if it finds that-
22 "(1) there is probable cause to believe that the
23 person arrested or summoned to appear is the person
24 sought in the foreign state;
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1 "(2) the evidence presented is sufficient to support
2 the complaint under the provisions of the applicable
3 treaty;
4 "(3) no defense to extradition specified in the ap-
5 plicable treaty, and within the jurisdiction of the court,
6 exists; and
7 "(4) the act upon which the request for extradi-
8 tion is based would constitute an offense punishable
9 under the laws of-
10 "(A) the United States;
11 "(B) the State where the fugitive is found; or
12 "(C) a majority of the States.
13 The court may base a finding that a person is extradit-
14 able upon evidence consisting, in whole or in part, of
15 hearsay or of properly certified documents.
16 "(e) POLITICAL OFFENSES AND OFFENSES OF A Po-
17 LITICAL CHARACTER.?The court shall not find the person
18 extraditable after a hearing under this section if the court
19 finds that the person has established by clear and convincing
20 evidence that any offense for which such person may be sub-
21 ject to prosecution or punishment if extradited is a political
22 offense or an offense of a political character. For the purposes
23 of this subsection, the terms 'political offense' and 'offense of
24 a political character'-
25 "(1) do not include?
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1 "(A) an offense within the scope of the Con-
2 vention for the Suppression of Unlawful Seizure
3 of Aircraft, signed at The Hague on December
4 16, 1970;
5 "(B) an offense within the scope of the Con-
6 vention for the Suppression of Unlawful Acts
7 Against the Safety of Civil Aviation, signed at
8 Montreal on September 23, 1971;
9 "(C) a serious offense involving an attack
10 against the life, physical integrity, or liberty of in-
11 ternationally protected persons (as defined in sec-
12 tion 1116 of this title), including diplomatic
13 agents;
14 "(D) an offense with respect to which a mul-
15 tilateral treaty obligates the United States to
16 either extradite or prosecute a person accused of
17 the offense;
18 "(E) an offense that consists of the manufac-
19 ture, importation, distribution, or sale of narcotics
20 or dangerous drugs;
21 "(F) an offense that consists of rape;
22 "(GI-) an attempt or conspiracy to commit an
23 offense described in subparagraphs (A) through (F)
24 of this paragraph, or participation as an accom-
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1 plice of a person who commits, attempts, or con-
2 spires to commit such an offense.
3 "(2) Except in extraordinary circumstances, do
4 not include-
5 "(A) an offense that consists of homicide, as-
6 sault with intent to commit serious bodily injury,
7 kidnaping, the taking of a hostage, or a serious
8 unlawful detention;
9 "(B) an offense involving the use of a firearm
10 (as such term is defined in section 921 of this
11 title) if such use endangers a person other than
12 the offender;
13 "(C) an attempt or conspiracy to commit an
14 offense described in subparagraphs (A) or (B) of
15 this paragraph, or participation as an accomplice
16 of a person who commits, attempts, or conspires
17 to commit such an offense.
18 The court shall not take evidence with respect to, or other-
19 wise consider, an issue under this subsection until the court
20 determines the person is otherwise extraditable. Upon motion
21 of the Attorney General or the person sought to be extra-
22 dited, the United States district court may order the determi-
23 nation of any issue under this subsection by a judge of such
24 court.
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1 "(f) CERTIFICATION OF FINDINGS TO THE SECRETARY
2 OF STATE.-
3 "(1) If the court finds that the person is extradit-
4 able, it shall state the reasons for its findings as to
5 each charge or conviction, and certify its findings, to-
6 gether with a transcript of the proceedings, to the Sec-
7 retary of State. The court shall order that the person
8 be held in official detention until surrendered to a duly
9 appointed agent of the foreign state, or until the Secre-
10 tary of State declines to order the person's surrender.
11 "(2) If the court finds that the person is not ex-
12 traditable, it shall state the reasons for its findings as
13 to each charge or conviction, and certify the findings,
14 together with such report as the court considers appro-
15 priate, to the Secretary of State. The Attorney Gen-
16 eral may commence a new action for extradition of the
17 person only with the agreement of the Secretary of
18 State.
19 "? 3195. Appeal
20 "(a) IN GENERAL.?Either party may appeal, to the
21 appropriate United States court of appeals, the findings by
22 the district court on a complaint for extradition. The appeal
23 shall be taken in the manner prescribed by rules 3 and 4(b) of
24 the Federal Rules of Appellate Procedure, and shall be heard
25 as soon as practicable after the filing of the notice of appeal.
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1 Pending determination of the appeal, the district court shall
2 stay the extradition of a person found extraditable.
3 "(b) DETENTION OR RELEASE PENDING APPEAL.?If
4 the district court found that the person sought is-
5 "(1) extraditable, it shall order that the person be
6 held in official detention pending determination of the
7 appeal, or pending a finding by the court of appeals
8 that the person has established that special circum-
9 stances require his release;
10 "(2) not extraditable, it shall order that the person
11 be released pending determination of an appeal unless
12 the court is satisfied that the person is likely to flee or
13 to endanger the safety of any other person or the
14 community.
15 If the court orders the release of a person pending determina-
16 tion of an appeal, it shall impose conditions of release that
17 will reasonably assure the appearance of the person as
18 required and the safety of any other person and the commu-
19 nity.
20 "(c) SUBSEQUENT REVIEW.?No court has jurisdiction
21 to review a finding that a person is extraditable unless the
22 person has exhausted his remedies under subsection (a). If
23 the person files a petition for habeas corpus or for other
24 review, he shall specify whether the finding that he is extra-
25 ditable has been upheld by a court, and, if so, shall specify
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1 the court, the date, and the nature of each such proceeding.
2 A court does not have jurisdiction to entertain a person's
3 petition for habeas corpus or for other review if his commit-
4 ment has previously been upheld, unless the court finds that
5 the grounds for the petition or appeal could not previously
6 have been presented.
7 "? 3196. Surrender of a person to a foreign state
8 "(a) RESPONSIBILITY OF THE SECRETARY OF
9 STATE.?If a person is found extraditable pursuant to sec-
10 tion 3194, the Secretary of State, upon consideration of the
11 provisions of the applicable treaty and this chapter-
12 "(1) may order the surrender of the person to the
13 custody of a duly appointed agent of the foreign state
14 requesting extradition;
15 "(2) may order such surrender of the person con-
16 tingent on the acceptance by the foreign state of such
17 conditions as the Secretary considers necessary to
18 effectuate the purposes of the treaty or the interest of
19 justice; or
20 "(3) may decline to order the surrender of the
21 person if the Secretary is persuaded that-
22 "(A) the foreign state is seeking extradition
23 of the person for the purpose of prosecuting or
24 punishing the person because of his political opin-
25 ions, race, religion, or nationality; or
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1 "(B) the extradition of the person to the for-
2 eign state seeking his return would be incompati-
3 ble with humanitarian considerations.
4 The Secretary may order the surrender of a person who is a
5 national of the United States unless such surrender is
6 expressly forbidden by the applicable treaty or by the laws of
7 the United States. A decision of the Secretary under para-
8 graph (1), (2), or (3) is a matter solely within the discretion of
9 the Secretary and is not subject to judicial review: Provided,
10 however, That in determining the application of paragraph
11 (3), the Secretary shall consult with the appropriate bureaus
12 and offices of the Department of State, including the Bureau
13 of Human Rights and Humanitarian Affairs.".
14 "(b) NOTICE OF DECISION.?The Secretary of State,
15 upon ordering a person's surrender or denying a request for
16 extradition in whole, or in part, shall notify the person
17 sought, the diplomatic representative of the foreign state, the
18 Attorney General, and the court that found the person extra-
19 ditable. If the Secretary orders the person's surrender, he
20 also shall notify the diplomatic representative of the foreign
21 state of the time limitation on the person's detention that is
22 provided by subsection (c)(2).
23 "(c) LIMITATION ON DETENTION PENDING DECISION
24 OR REMOVAL.?A person who is found extraditable pursuant
25 to section 3194 may, upon reasonable notice to the Secretary
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1 of State, petition the court for release from official detention
2 if, excluding any time during which removal is delayed by
3 judicial proceedings-
4 "(1) the Secretary does not order the person's
5 surrender, or decline to order the person's surrender,
6 within forty-five days after his receipt of the court's
7 findings and the transcript of the proceedings; or
8 "(2) the person is not removed from the United
9 States within thirty days after the Secretary ordered
10 the person's surrender.
11 The court may grant the petition unless the Secretary of
12 State, through the Attorney General, shows good cause why
13 the petition should not be granted.
14 "? 3197. Receipt of a person from a foreign state
15 "(a) APPOINTMENT AND AUTHORITY OF RECEIVING
16 AGENT.?The Attorney General shall appoint an agent to
17 receive, from a foreign state, custody of a person accused of a
18 Federal, State, or local offense. The agent shall have the
19 authority of a United States marshal. The agent shall convey
20 the person directly to the Federal or State jurisdiction that
21 sought his return.
22 "(b) TEMPORARY EXTRADITION TO THE UNITED
23 STATES.?If a foreign state delivers custody of a person
24 accused of a Federal, State, or local offense to an agent of
25 the United States on the condition that the person be re-
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1 turned to the foreign state at the conclusion of criminal pro-
2 ceedings in the United States, the Bureau of Prisons shall
3 hold the person in custody pending the conclusion of the pro-
4 ceedings, and shall then surrender the person to a duly ap-
5 pointed agent of the foreign state. The return of the person to
6 the foreign state is not subject to the requirements of this
7 chapter.
8 "? 3198. General provisions for chapter
9 "(a) DEFINITIONS.?As used in this chapter-
10 "(1) 'court' means
11 "(A) a United States district court estab-
12 lished pursuant to section 132 of title 28, United
13 States Code, the District Court of Guam, the Dis-
14 trict Court of the Virgin Islands, or the District
15 Court of the Northern Mariana Islands; or
16 "(B) a United States magistrate authorized
17 to conduct an extradition proceeding;
18 "(2) 'foreign state', when used in other than a
19 geographic sense, means the government of a foreign
20 state;
21 "(3) 'foreign state', when used in a geographic
22 sense, includes all territory under the jurisdiction of a
23 foreign state, including a colony, dependency, and con-
24 stituent part of the state; its air space and territorial
25 waters; and vessels or aircraft registered in the state;
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1 "(4) 'treaty' includes a treaty, convention, or
2 international agreement, bilateral or multilateral, that
3 is in force after advice and consent by the Senate; and
4 "(5) 'warrant', as used with reference to a foreign
5 state, means any judicial document authorizing the
6 arrest or detention of a person accused or convicted of
7 a crime.
8 "(b) PAYMENT OF FEES AND COSTS.?Unless other-
9 wise specified by treaty, all transportation costs, subsistence
10 expenses, and translation costs incurred in connection with
11 the extradition or return of a person at the request of-
12 "(1) a foreign state, shall be borne by the foreign
13 state unless the Secretary of State directs otherwise;
14 "(2) a State, shall be borne by the State; and
15 "(3) the United States, shall be borne by the
16 United States.".
17 SEC. 4. This Act shall take effect on the first day of the
18 first month after enactment, and shall be applicable to extra-
19 dition and rendition proceedings commenced thereafter.
0
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S 408 CONGRESSIONAL RECORD ? SENATE Jammu,' 87, 1983
daily by organized crime, is the so-
called arscarfor-profit schemes. Last
Congress, in response to the problems
with arson fraud brought to light in
previous hearings by the Senate Judi-
ciary Subcommittee on Criminal Jus-
tice, I introduced a bill?S. 1388. 97th
Congress. 1st session?to provide Fed-
eral criminal penalties for the more se-
rious frauds of this type. I am today
Introducing the same measure to pro-
vide a vehicle to again focus our atten-
tion on one approach to help deal with
the problem.
Mr. President, this legislation would
make it a Federal crime punishable by
a fine of $250,000 or imprisonment for
not more than 10 years, or both, to
engage in conduct in furtherance of a
fraudulent scheme that affects inter-
state commerce and involves the ob-
taining of insurance proceeds of
8100,000 or more by arson. This would
supplement the provisions of the Anti-
Arson Act enacted last Congress?
Public Law 97-298?that added the
crime of arson In the FBI major crime
reports and provided a more flexible
standard for appiication of current ex-
plosive statutes. .
Every reasonable weapon against
arson should be made available to the
law enforcement community. As I
noted last Congress, arson is a unique
crime. It generally occurs with no eye-
witnesses. Evidence of the crime is dif-
ficult to ascertain and often destroyed
in the course of the fire. Investigative
resources needed to determine the
origin and cause of a fire are frequent-
ly beyond the capability of most juris-
dictions. Arson-for-profit cases go even
further because they usually involve
detailed planning and extensive cover-
up activities. Losses from arson fraud
are estimated at over $1.25 billion a
year and increasing.
The Federal Bureau of Investigation
has recognized the growth of arson
fraud by organized crime and is devot-
ing substantial resources to deal with
these crimes. Unfortunately, the Fed-
eral law is not adequate to meet the
problem. Hopefully. this bill would
help fill this gap.
The bill follows:
S. 219
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congener assembled, That chap-
ter 5 of title 19 of the United Skates Code is
amended by addling at the end thereof a new
section as follows:
4 U. Arms is executing a sebeme to derrand
"(a) Whoever. hawing devised or intending
to devise a scheme or artifice to defraud or
to obtain property of another by means of a
false or fraudulent pretense, representation,
or promise, engages in conduct with intent
to execute each scheme or artifice and the
scheme or artifice affects interstate com-
merce and involves the obtaining of insur-
ance proceeds of $100,000 or more by arson
shall be fined net more than $288,000 or im-
prisoned not mere than ten years, or both.
"(b) As used in this section, 'arson' means
the substantial damage of a bedding, dwell-
rg, or structure by fire or explosion.".
Mr. THURMOND. Mr. President, I
am reintroducing today a major ad-
ministrationoupported bill to modern-
ize the international extradition proce-
dures of the United States. This legis-
lation has been under development for
some 4 years under the leadership of
both the Reagan and Carter adminis-
trations and was considered by the
Senate as S. 1949 last Congress- The
purpose is to modernize the conceded
obsolete provisions of current law
dealing with inteimational extradition.
Following hearings, in the 97th Con-
gress. the Senate Committee on the
Judiciary, on April 12. 1982. reported
S. 1940 (8. Rept.. No. 97-321). with sev-
eral amendments to the Senate with-
out a dissenting vote. The bill was
then sequentially referred to the
Senate Committee on Foreign Rela-
tions. On May 19, 1982, the Senate
Committee on Foreign Relations re-
ported the bill to the Senate with
some suggestions for further improv-
ing the bill. (8. Rept. 110.91-475). It is
this latter bill, 8. 1940 with amend-
ments agreeable to both Senate com-
mittees, that was passed by the Senate
an August 19, 1982. The bill I am in-
troducing today is the same bill that
passed the Senate in August 1982,
with only a few clarifying or organiza-
tional drafting changes.
Mr. President, the House of Repre-
sentatives also made major strides last
Congress in processing a companion
bill?H.R. 8948. This measure was re-
ported by the House Committee on
the Judiciary (H. Rept. No. 0hI-827).
but was not considered due to time
constraints on the floor of the House
in the final days of the Convene.
Mr. President, current extradition
statutes have been on the books for
more than a century without signifi-
cant change. Officials responsible for
administering extradition matters for
the United States informed the com-
mittee in hearings that current provi-
sions are increasingly inadequate to
deal with modem problems in control-
ling inteniational erhne, including
such serious areas as intomalional il-
licit drug trafficking and terrorism.
Due to a relatively small number of
cases in the past. minor inconven-
iences from deficiencies were a nui-
sance, but tolerable. Today, the
number and complexity of cans have
made such deficiencies a major prob-
lem.
Mr. President, it is unfortunate that
we did not complete action on this leg-
islation last Congress. It is time to
modernise U.S. extradition laws to
comport with the realities of interna-
tional criminal activity. I hope we can
act promptly.
A few of the highlights of the bill
are
Require the Attorney Cieneral to
serve as complainant to extradition
matters, thereby eliminating the possi-
bility of a foreign government?or
someone acting for a foreign govern-
ment?instituting unjustified extradi-
tion proceedings.
Permit an arrest warrant to be
Issued when the location of the fugi
tive is not known, thereby facilitating
law enforcement efforts in locating in-
ternational fugitives.
Permit extradition proceedings to be
commenced by means of a summons
rather than an arrest warrant where
the location of the fugitive is known
and flight is unlikely.
Set standards and conditions for the
release of the alleged fugitive in any
stage of the proceeding, not just prior
to the extradition hearing
Keep the "political offense" issue as
a matter for the courts, but define the
term to clarify and strengthen the
U.S. response to international terror-
ism.
Permit fugitives to be temporarily
extradited to the United States for
trial or sentencing.
Authorize the Attorney General to
make all arrangements to take custody
of fugitives found extraditable to the
United States by foreign countries.
Mr. President. I ask unanimous con-
sent that excerpts from both the Judi-
char and Foreign Relations Commit-
tee reports on 8. 1940 last Congress be
Inserted in the ReCoan.
The excerpts and bill follow:
AMENDMENTS TO Tuts 18 or TIM UNIT=
STATES CODE RELATING TO INTERNATIONAL
EXTRADITION
The Committee on the Judiciary, to which
was referred the bill (S. 1940) to amend
chapter 209 of title 18 of the United States
Code. relating to International extradition,
having considered the same, reports favor-
ably thereon and recommends that the bill
parn.
? ? ?
HISTORY OT THE LIGISLATION
Senator Thurmond introduced 8. 1639 on
September lg. 2981, to modernize the statu-
tory provisions relating to international ex-
tradition. One day of hearings was held on
October 14, 1981, during which the Commit-
tee heard from the Department of State,
the Department of Justice, a distinguished
professor, and a prastidng attorney. The
record was kept open AM more than two and
one-half months for other interested per-
sons to submit written statements and com-
ments for the record.' On December 11,
1961, Senator Thurmond introduced a clean
bfli?S. 1940--to incorporate severs/ amend-
ments suggested in the hearings. as well SI
to mske a numbs, of dallying amend-
ments. S. Mg differs from S. 1689 in two
significant respects. First. 8. 1940 as intro-
duced made it mandatory?rather than dis-
cretionary?ler the Secretary of State to
deny extradition when he Is persuaded that
the requesting State is seeking the person's
extradition "for a political offense or an of-
fense of a political character, or for the pur-
pose of promoting or punishing the person
for his political minims". Second, as intro-
duced. 8.1040 made it explicit in the statute
that this determination would not be sub-
ject tak judicial review.
This bM was the result of several years of
study by the Departments of State and Jus-
tice in cooperation with the professional
staff of the Senate Committee on the Judi-
ciary. It was original, oultimitklod that
the primary vehicle fee =dotal:Mg the ex-
tradition laws of the United States would be
the Federal crimind eode legislation. Since
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Januar), 27, 1983 CONGRESSIONAL RECORD ? SENATE
the subject matter, however, can be easily
separated out as a package, Senator Thur-
mond elected to follow a two track proce-
dure in this instance; thus, identical provi-
sions to this bill are also included as sub-
chapter B of chapter 32 in the new title 18
in the criminal code bill (S. 1830) reported
by the Committee on January 25, 1982. Leg-
islation separate from the criminal code bill
has the advantage of promoting early appli-
cation of this important reform to an in-
creasing case load involving international
fugitives from justice.
STATEMENT IN GENERAL
Chapter 209 of current title 18 of the
United States code (18 U.S.C. 3181-3195) in-
titled "Extradition" covers both interstate
rendition and international extradition.
This bill would retain chapter 209 for inter-
state rendition provisions and create a new
chapter 210 for international extradition
laws.
International extradition is the process by
which a person located in one nation is ar-
rested and turned over to another nation
for criminal trail or punishment. The new
chapter 210 consists of eight sections. Sec-
tions 3191 through 3196 deal primarily with
requests made to the Utlited States by for.
eign governments and set forth the proce-
dure for determining whether a person lo-
cated in this country should be delivered up
to a foreign power. Section 3197 deals with
the return of a fugitive extradited to the
United States from a foreign nation. Section
3198 contains definitions and a provision on
payment of the expenses incident to extra-
dition. The proposed chapter replaces IS
U.S.C. 3181 and 3184-3195. Other Federal
statutes on extradition, which include l&
U.S.C. 751, 752, and 1502, are not affected
by this legislation.
The provisions of the proposed chapter
substantially alter the present statutory law
for several reasons.
First, many of the statutes on extradition
have been in force without major alteration
since 1882. Several have not been signifi-
cantly changed since 1848. These antiquated
provisions have proven increasingly inad-
equate in dealing with the modern problems
In the international control of crime.
Second, there has been a marked increase
in the number of extradition request re-
ceived and made by the United States in
recent years. Those requests have revealed
problems in the extradition process. More-
over, the requests have generated a number
of published court decisions on constitution-
al and legal issues involved in international
extradition. The judicial interpretation of
the law contained in these court decisions
fills important gaps in the present statutory
law, and should be reflected in any new ex-
tradition legislation.
Third, the United States has concluded
new extradition treaties with many foreign
countries in the past few years. The lan-
guage of the present law is not adequate to
fully implement some of the provisions of
the new treaties, and therefore impedes ful-
fillment by the United States of its interna-
tional obligations.
In summary, the following significant im-
provements in international extradition are
accomplished by S. 1940:
(1) Permits the United States to secure a
warrant for the arrest of a foreign fugitive
even though the fugitive's whereabouts in
the United States is unknown or even if he
is not in the United States. This warrant
can then be entered into the FBI's NCfC
system so that if the fugitive attempts to
enter the United States or is apprehended
in the United States for other reasons, he
can be identified and arrested immediately
for extradition to the requesting country.
(2) Provides a statutory procedure for
waiver of extradition. This feature protects
a fugitive's rights while facilitating his re-
moval to the requesting country in instances
In which he is willing to voluntarily go to
the requesting country without a formal ex-
tradition hearing.
(3) Permits both a fugitive and the United
States on behalf of the requesting country
to directly appeal adverse decisions by an
extradition court. Under present law a fugi-
tive can only attack an adverse decision
through habeas corpus. The only option
available to the United States acting on
behalf of a requesting country is to refile
the extradition complaint with another
magistrate.*
(4) Clarifies the applicable standards for
bail at all stages of an extradition case by
adopting standards largely derived from
Federal court cases.
(5) Establishes clear statutory procedures
and standards applicable to all critical
phases of the handling and litigation of a
foreign extradition request.
(6) Makes the determination of whether
the requesting country is seeking extradi-
tion of a person for a "political offense" a
matter for the Secretary of State consistent
with statutory guidelines and subject to ju-
dicial review in the courts of appeal.
(7)Limits access to United States courts in
connection with foreign extradition requests
to cases initiated by the Attorney General.
(8) Permits use of a summons instead of a
warrant of arrest in appropriate cases.
(9)Codified the rights of a fugitive to
legal representation and to a speedy deter-
mination of an extradition request.
(10) Simplifies and rationalizes the proce-
dures for authenticating documents for use
In extradition proceedings.
(11) Facilitates temporary extradition of
fugitives to the United States.
PROVISIONS OF THE BILL AS REPORTED
SECTION 3191?EXTRADITION AUTHORITY IN
GENERAL
L Present Federal law
18 U.S.C. 3181 states that the present Fed-
eral laws authorizing the extradition of per-
sons from the United States shall continue
in force only if there is a treaty in force
with the foreign nation requesting extradi-
tion. 18 U.S.C. 3184 requires that an extradi-
tion treaty be in force before any court can
conclude that a person may lawfully be ex-
tradited to the foreign country hwolved. In
addition, 18 U.S.C. 3186 by imsdiestlen re-
quires that a court find that the person
sought is extraditable before the Secretary
of State may order surrender to the foreign
state. These provisions, read together.
permit the United States to surrender a
person to a foreign country.only in accord-
ance with an applicable treaty in force be-
tween the United States and the foreign
country involved.* This principle has
become a settled aspect of United States
practice in international extradition.
a Provisions of section 3191
Section 3191 of the proposed chapter on
extradition carries forward the basic princi-
ple of the present law. The provision speci-
fies that the United States may extradite a
person in this country only if there is a
treaty concerning extradition in force with
the country requesting extradition, and
only if the request falls within the terms of
that treaty. This section refers to a treaty
"concerning extradition" rather than an
"extradition treaty" because an obligation
to extradite a particular class of offenders is
sometimes included in international agree-
ments other than extradition treaties.*
However, the limitation established by this
section applies only to the surrender of fugi-
S 409
tives pursuant to the chapter, and does not
apply to any other legal process which may
result In a person facing trial or punishment
In another country. Thus, the surrender of
a United States serviceman to foreign au-
thorities for trial in accordance with the re-
ciprocal criminal jurisdiction provisions of a
Status of Forces Agreement.* or the depor-
tation of an alien who happens to face
criminal charges abroad.* remain governed
by the treaty provisions and statutes relat-
ing to those processes, and not by this chap-
ter.
SECTION 3192?INIT/AL PROCEDURE
This section sets forth the steps to be fol-
lowed in instituting court proceedings neces-
sary for extradition.
1. Present Federal law
Extradition proceedings under 18 U.S.C.
3184 commence when a complaint is filed,
under oath charging that a person has com-
mitted, within the jurisdiction of a foreign
government, any of the crimes for which ex-
tradition is provided under the treaty on ex-
tradition in force between the United States
and that foreign government. There is no
requirement under present law that a
formal diplomatic request for extradition be
made before the complaint is filed.
18 U.S.C. 3184 permits any Federal Judge
or justice, or duly authorized Federal magis-
trate, or any Judge of a State court of record
of general jurisdiction to receive complaint
and issue warrants of arrest in international
extradition matters. In practice, however,
such cases are almost invariably filed in the
Federal courts.
The present statutory scheme does not
specify by whom a complaint may be filed in
extradition matters. The rule developed by
the courts appears to be that any person
acting under the authority of the demand-
ing government may filed a complain for ex-
tradition.? Thus, international extradition
cases have been instituted by foreign diplo-
matic or consular representatives,* foreign
policy officers' and even private citizens
which claim to be acting on behalf of a for-
eign government.** This situation has re-
quired the courts to determine, in each case,
whether the person filing the complaint is
"authorized" to act on behalf of the foreign
government.** However, in recent year, the
United States Department of Justice has
become the complainant in the overwhelm-
ing majority of extradition cases. The De-
partment of Justice takes this action either
pursuant to provisions In the applicable ex-
tradition treaty requiring the government
of the requested state to provide assistance
to the government seeking extradition** or
pursuant to an informal international agree-
ment for reciprocal legal representation.
The complaint must be filed In a Federal
or State court in whose jurisdiction the fu-
gitive may be found. Unfortunately, in
many cases the international fugitive's loca-
tion In the United States is unknown.
Therefore, no complaint can be filed and no
arrest warrant can be issued. The ability of
United States law enforcement agencies to
locate and apprehend international fugi-
tives is greatly hampered by the lack of an
outstanding arrest warrant or other judicial
process in such cases.**
The present statutory scheme contains no
provision for the release of an alleged fugi-
tive on bail pending the extradition hear-
ing.14 However, the courts have claimed the
inherent right to release an alleged fugitive
on bail pending the extradition hearing in
cases where "special circumstances" require
such release.** The standard for release on
bail in extradition cases is more demanding
than in ordinary cases, and a clear presump-
tion against bail is recognized.**
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S 410 CONGRESSIONAL RECORD ? SENATE
2. Provisions of section 3192
Subsection (a) permits the Attorney Gen-
eral to file a complaint charging that a fugi-
tive is extraditable in the United States dis-
trict court for the district in which the fugi-
tive may be found. The subsection also per-
mits a complaint to be filed in the United
States District Court-for the District of Co-
lumbia if the fugitive's location is not
known. Under this provision, a complaint
could be filed, and an arrest warrant issued,
when the whereabouts of the fugitive in the
United States are still being ascertained, or
when it is believed that the fugitive has not
yet entered the United States but may be
about to do so. The word "found" is intend-
ed to have its usual, non-technical meaning,
and permits extradition proceedings to be
initiated in any district in which the fugitive
can be physically apprehended, without
regard to the manner in which the fugitive
entered the district."
Subsection (b) prescribes the contents of a
complaint for extradition. Since all United
States extradition treaties specify the docu-
ments and quantum of evidence necessary
for surrender, paragraph (1) states that an
extradition complaint is sufficient if it is ac-
companied by the evidence specified in the
treaty and a copy of the formal request for
extradition. Paragraph (2) deals with the
documentation necessary to support a "pro-
visional arrest," the process by which a fugi-
tive from justice is arrested to prevent fur-
ther flight while the foreign government
seeking extradition assembles the necessary
documents and evidence." Subparagraph
(A) of paragraph (2) provides that a com-
plaint will support an arrest under subsec-
tion (c) if it contains information sufficient
to identify the fugitive, explains the circum-
stances necessitating provisional arrest,"
and either indicates that a warrant for the
fugitive's arrest is outstanding in the for-
eign state," or outlines the essential facts
indicating that an extraditable crime has
been committed and that the fugitive com-
mitted it. Since many of the extradition
treaties contain articles which expressly set
out requirements for obtaining the arrest of
fugitives," subparagraph (B) of paragraph
(2) also permits the complaint to be filed if
It contains the information required by the
provisions of the applicable treaty.
Subsection (c) obliges the court to issue a
warrant for the arrest of the fugitive upon
receipt of the complaint unless the Attor-
ney General requests that a summons to
appear at the extradition hearing be issued
instead. The subsection requires that the
warrant of arrest be executed in accordance
with Rule 4(d) of the Federal Rules of
Criminal Procedure. This means that the
warrant may be executed anywhere in the
United States in the same manner as an or-
dinary Federal warrant of arrest. The sub-
section also requires that the person arrest-
ed be taken without unnecessary delay
before the nearest available Federal court22
for an extradition hearing. The language is
similar to that of Rule 5 of the Federal
Rules of Criminal Procedure, and is intend-
ed to insure that the person arrested under
this section is speedily informed by a judi-
cial officer of the reason for the arrest and
of his rights to counsel, to cross-examine
witnesses, and to introduce evidence on his
behalf. It is not intended to require the dis-
missal of extradition proceedings solely on
the ground that the fugitive arrested for ex-
tradition was taken without unnecessary
delay before a judge or magistrate later de-
termined not to be the "nearest" one. There
is no requirement that the extradition hear-
ing take place in the State in which the fu-
gitive is found," so long as there has been
compliance with the provisions of this chap-
ter.
Subsection (d)(1) provides that a fugitive
arrested for extradition may be released on
bail pending the extradition hearing only if
he can demonstrate that "special circum-
stances" warrant his release. The provision
continues the approach which has been fol-
lowed by United States courts" in setting
the standards for release on bail pending an
extradition hearing considerably higher
than the standards for release on bail pend-
ing trial on Federal charges in the United
States. This approach is necessary to assure
that the United States continues to carry
out its treaty obligation to surrender extra-
ditable fugitives. It is anticipated that the
courts will find the "special circumstances"
test satisfied "only in the most pressing cir-
cumstances and only when the require-
ments of justice are absolutely peremp-
tory."" Such special circumstances might
be found, for instance, when the incarcer-
ation of the fugitive would seriously damage
his health," or would endanger the welfare
of a third party who is wholly dependent
upon the fugitive for care.27 It is anticipated
that these circumstances would rarely be
encountered.
Subsection (d)(3) provides that even if
special circumstances are found, the release
of the fugitive shall be permitted only upon
such conditions as will reasonably assure his
appearance at future proceedings, and
assure the safety of other persons and the
community. Such conditions might include
surrender by the fugitive of any passport or
travel documents, posting of a substantial
bond, and the requirement that the fugitive
maintain contact with appropriate federal
agencies, such as the United States Mar-
shals Service.
Subsection (d)(2) gives the court the dis-
cretion to release the fugitive provisionally
arrested pursuant to this section if the evi-
dence or documents required by the applica-
ble treaty are not received within sixty days
of the arrest (unless a longer period of de-
tention is specified in the applicable treaty).
The subsection resolves and ambiguity per-
ceived by the courts with respect to the
commencement and conclusion of the time
period for provisional arrest by providing
that this period should be calculated from
the date on which the fugitive is taken into
custody for extradition 28 to the date on
which the documents are received by either
the court or the Department of State." If
the court is notified that the documents
have been received by the Department of
State before the expiration of the 60-day
period, the court is directed to defer release
of the fugitive for a reasonable time pend-
ing the prompt transmission of the docu-
ments to the court by the Department of
State. If a court does release the fugitive
from custody due to the non-receipt of the
documents within the applicable time
period, subsection (d)(3) requires that the
court frame conditions of release reasonably
calculated to assure that person's appear-
ance for future proceedings and the safety
of other persons and the community. Re-
lease of the fugitive under subsection (d)
does not terminate the proceedings, which
can resume once appropriate documentation
arrives."
This section does not carry forward the
little used authorization in 18 U.S.C. 3184
for extradition proceedings to be com-
menced before State judges. The section
also specifies that extradition proceedings
must be initiated by the Attorney General,
rather than by a foreign government or one
acting on behalf of a foreign government."
These changes reflect the fact that interna-
tional extradition is strictly a function of
the Federal Government," and determining
when and how to perform that function is
properly the business of Federal officials
January 27, 1,983
and Federal courts. The United States Gov-
ernment has a sufficient interest in the vig-
orous enforcement of the laws (including
the extradition law and treaties) to justify
the participation of its legal counsel, the
Department of Justice, in all court proceed-
ings aimed at determining whether extradi-
tion can take place. Indeed, this is the ap-
proach which has been adopted in most for-
eign countries, many of which do not permit
the United States to argue in court during
proceedings in connection with a United
States extradition request. In addition,
United States courts are freed from any
need to determine whether a private person
is "authorized" by an "appropriate" foreign
authority to initiate extradition proceed-
ings. It should also significantly reduce the
likelihood of extradition proceedings being
used by private individuals as a tool for ha-
rassment, debt collection, or other improper
purposes.
SECTION 3193-WAIVER OF EXTRADITION
HEARING AND CONSENT TO REMOVAL
/. Present Federal law
Present Federal law provides no specific
procedure by which a person arrested for
extradition may waive the formalities and
voluntarily return to the foreign country re-
questing surrender. This is especially unf or-
ttmate since a significant number of the fu-
gitives arrested under 18 U.S.C. 3184 choose
not to challenge the request for extradition
and wish to expedite removal to the foreign
country. Moreover, many of the newer ex-
tradition treaties to which the United
States is a party contain provisions obliging
the requested state to expedite the return
of a fugitive who has waived a hearing or
other procedures."
2. Provisions of section 3193
Section 3193 of the proposed extradition
chapter clarifies the method by which the
fugitive who does not contest extradition
can expedite his surrender. The provisions
of this section are based on Federal statu-
tory provisions governing a closely analo-
gous situation: the verification of a prison-
er's voluntary consent to transfer to his
country of nationality under treaties on the
execution of penal sanctions." The section
states that the court which would have han-
dled the extradition proceeding shall verify
that the fugitive's consent to be removed to
a foreign country has been given voluntarily
and with full knowledge of his right to con-
sult with counsel before making a decision
in the matter.
Under some circumstances, the foreign
government may not be willing to accept
custody of a fugitive who has offered to
waive extradition." There also may be situ-
ations in which the United States govern-
ment would consider waiver inappropriate."
Therefore, the provision does not permit re-
moval of the fugitive if the Attorney Gener-
al notifies the court that the United States
or the foreign state objects to the proposed
waiver.
SECTION 3194-EXTRADITION HEARING
1. Present Federal law
Under 18 U.S.C. 3184, an alleged fugitive
is entitled to a hearing at which a judicial
officer determines whether extradition is
lawful. 18 U.S.C. 3189 specifies that the
hearing must be held "on land, publicly, and
in a room or office easily accessible to the
public".
At the extradition hearing, the judicial of-
ficer must determine whether the offense
for which extradition is sought falls within
the terms of the treaty. He must also deter-
mine whether the acts for which the fugi-
tive is sought by the foreign country would
constitute a crime had they been committed
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In this country. This rule, known as "dual
criminality" or "double criminality", is gen-
erally considered a basic principle of inter-
national extradition law,s7 and is expressly
- required by many of the extradition treaties
to which the United States is a party." The
courts have held that the double criminality
requirement is satisfied whenever the acts
which the fugitive is charged with having
committed in the foreign country would be
punishable under Federal law, the law of
the State where the fugitive is found, or the
laws of a majority of the States, had those
acts been committed in this country."
A judicial officer must also determine
whether there is sufficient proof that an ex-
traditable offense in fact has been commit-
ted. Most of the treaties to which the
United States is a party require that an ex-
tradition request be supported by "such evi-
dence of criminality as, according to the
laws of the place where the fugitive shall be
found, would justify his commitment for
trial had the crime or offense been there
committed." Many years ago, the courts
veiwed the words "place where the fugitive
shall be found" as requiring the Federal
court to determine if the foreign govern-
ment's evidence is sufficient to Justify a
trial under the State laws of the State in
which the fugitive is apprehended." This
approach was a reasonable one eight dec-
ades ago, because , at that time Federal
courts had no uniform rules of criminal pro-
cedure and routinely followed the procedur-
al rules of the courts' of the State in which
they were located. However, the adoption of
the Federal Rules of Crimhsal Procedure
has made it generally unnecessary for Fed-
eral courts to refer to State law in these
matters." Moreover, extradition is a nation-
al act." and the quantum of evidence neces-
sary for extradition is precisely the kind of
Issue which should be determined by uni-
form national law, rather than by various
State laws. For these reasons, all of the
more recent extradition treaties contain lan-
guage essentially requiring that the Federal.
law standard of commitment for trial?prob-
able cause?be applied in weighing the suffi-
ciency of the evidence for international ex-
tradition."
The Federal Rules of Evidence do not
apply in extradition proceedings." where
unique rules of wide latitude govern the re-
ception of evidence on behalf of the foreign
government." It is settled law that hearsay
Is admissible, and the foreign government
usually presents its case by submitting affi-
davits, depositions, and other written state-
ments in order to satisfy the requirements
of the applicable treaty." 18 U.S.C. 3190
provides that originals or copies of deposi-
tions. warrants, or other papers are admissi-
ble in evidence at the extradition hearing if
authenticated so as to be admissible for sins
ilar purposes according to the laws of the
requesting country. The statute also pro-
vides that the certificate of the principal
diplomatic or consular officer of the United
States resident in the requesting country
shall be proof that the documents are au-
thenticated in the manner required. In es-
sence, the documents need only be genuine
and authentic?requirements that are
deemed fulfilled once it is shown that under
similar circumstances the requesting coun-
try's own courts would accept them as au-
thentic. The courts have held that extradi-
tion documents bearing a certificate which
is couched in the language of 18 U.S.C. 3190,
and signed by one of the specified officials,
are conclusively admissible." As a result of
these decisions, foreign governments rou-
tinely submit the documentation in support
of extradition requests to the appropriate,
United States Embassy abroad for certifica-
tion and transmission to the United States.
This practice imposes undesirable burdens
on the United States Foreign Service offi-
cers who must fill out the certification."
The present statutory scheme offers little
guidance with respect to the evidence which
can be introduced on behalf of the alleged
fugitive in an extradition hearing. Many
cases emphasize that whether such evidence
should be admitted is a decision for the
court, in its discretion, to make." The al-
leged fugitive is ordinarily permitted to tee
thy on his own behalf 1" or to have wit-
nesses testify for him." However, it is clear
from the case law that the alleged fugitive
may offer to explain ambiguities in the evi-
dence submitted against him, but may not
offer evidence which merely contradicts
that submitted by the requesting country,
or which poses a question of credibility, or
which raises an affirmative defense to con-
viction on the charges, or Which is incompe-
tent by the terms of the extradition treaty
under which surrender is sought." This re-
strictive approach is appropriate because
the issue before the court at an extradition
hearing is probable cause, not the ultimate
guilt or innocence of the accused.
Finally, the judicial officer must deter-
mine whether the treaty contains a defense
to extradition which would preclude surren-
der in .the case before him. Extradition trea-
ties frequently bar surrender if a statute of
limitations has foreclosed prosecution or
punishment for the offense in question," or
if the fugitive has been tried cc punished in
the requested state for the same offense,"
or if any of several other legal consider-
ations are present.
Virtually every extradition treaty contains
a provision barring extradition for a politi-
cal offgnse, and many treaties also preclude
extradition if the requesting country has
political motives for seeking the return of
the fugitive. Under the present case law, the
courts decide whether the crime for which
extradition has been requested is a political
offense" but traditionally have declined to
consider whether the requesting country's
motives in seeking extradition are politi-
cal" Since these issues are usually inter-
twined," the possibility for inconsistent re-
sults Is obvious.
If the judicial officer is persuaded that
the crime charged falls within the treaty,
that the acts involved would constitute an
offense in this country, that the evidence
submitted is sufficient to sustain the charge
under the treaty, and that no legal defense
to extradition is applicable, it is his duty to
certify these conclusions to the Secretary of
State. The judicial officer also must sand
the Secretary of State a copy of all the oral
testimony taken at the hearing. 18 U.S.C.
3184 requires the judicial officers to order
the commitment of the accused to jail pend-
ing surrender, and there is provision for re-
lease on bail at this stage of the proceed-
ings. If the judicial officer finds that the fu-
gitive is not extraditable, the proceedings
are terminated, and the fugitive is released
from custody:
Z Provisions of section 3144
Section 3194(a) requires that a judicial
hearing be held to determine whether the
person sought is extradictable (unless such
as hearing has been waived under section
3193) and sets out the procedure for the
hearing.
Section 3194(a) provides that the court
does not have jurisdiction to determine
whether extradition is sought for a political
offense or because of the person's political
beliefs, while section 3198(aX3) specifies
that the Secretary of State must decline to
order surrender of a person if, after taking
into account certain statutory principles
generally eliminating specified types of
S 411
crimes from the political offense exception
(e.g., crimes of violence and drug traffick-
ing), he is persuaded that the person's ex-
tradition is sought for one of these reasons.
The provisions taken together provide that
the Secretary of State shall have jurisdic-
tion to decide the applicability of the "polit-
ical offense" exception to extradition is
sought for one of these reseals. The provi-
sions taken together provide that the Secre-
tary of State shall have jurisdiction to
decide the applicability of the "political of-
fense" exception to extradition contained in
most extradition treaties, such decision to
be consistent with the statutory guidelines
and reviewable in the United States courts
of appeal based on a substantial evidence
standard. The Committee has concluded
that this approach, also discussed in dealing
with section 3198(aX3) Mfrs, is a desirable
one for several reasons.
First, the most modern United States ex-
tradition treaties specify that the executive
branch of the requested country shall
decide the applicability of the political of-
fense exception." In the absence therefore
of specific legislative endorsement of the
court developed rule?an unlikely prospect
In light of the trend ka magistrate embed:
tion decisions noted infte note 81?it is in-
evitable over the long term that the case
law rule reserving the political offense deci-
sion to the courts will become the exception
rather than the rule as the United Slates
continues its ongoing program of negatiat-
Mg new modern treaties. Moreover, as previ-
ously noted, under present case law the
courts generally shun deciding whether the
foreign government's extradition request to
politically motivated, preferring to leave
that decision to the executive brancb.. ft
should also be noted that the political of-
fense decisions are made endaudvely by the
executive branch of the government in sev-
eral foreign countries, Including Canada and
Germany.
Second, the decision to shield a criminal
from extradition for an otherwise extradit-
able offense on the ground that his offense
was "political" is not the type of Issue which
lends Itself to resolution through the Judi,
dal process." When dealing with a political
situation in a foreign country and the rela-
tionship of particular conduct to that situa-
tion, there are few truly objective criteria
by which a comprehensive definition of the
term "political offense" can be based."
Moreover, a public court proceeding is not
the most desirable forum for careful analy-
sis of a friendly foreign date% intentions or
political system. Such analysis and decisions
are inextricably intertwined with, and re-
quire the expertise of those versed in the
conduct of foreign relations. The Con:until-
tee has concluded that this ham is best left
to the Secretary of State, subject only to
limited review in the courts of appeal, along
with his traditional unreviareable responsi-
bilities with respect to political asylum.
Finally, a decision on the political offense
exception can have a devastating impact on
United_States relations with the requesting
country. The potentially crippling effect of
such decisions on foreign affairs is particu-
larly great where it could compromise
United State efforts to combat international
terrorism." The present law exacerbates
this situation, because frequently the
United States government, through the de-
partments of State and Justice, must takes
position on the applicability of the Political
offense exception while the case is before
the court. Moreover, the government must
take this position publicly, before all the
evidence and arguments are in, and despite
the fact that the court or the Secretary of
State may subsequently decide against ex-
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S 412 CONGRESSIONAL RECORD ? SENATE
tradition on other grounds. By contrast, the
approach taken by the proposed chapter
permits a more informed decision on extra-
dition to be made in a manner less likely to
be offensive to the friendly foreign govern-
ment involved in the case.
Subsection (b) supplements present law by
expressly, providing that the fugitive be in-
formed of his right to be represented by
counsel at the extradition hearing. Indigent
fugitives will be provided with counsel pur-
suant to the provisions of section 3401 relat-
ing to court-appointed 'counsel. The provi-
sion also requires that the fugitive be in-
formed of his right to introduce evidence In
his own behalf on matters within the juris-
diction of the court. The subsection thereby
leaves intact the extensive case law on this
point.62
Subsection (c) deals with evidence in an
extradition hearing. Paragraph 1 is designed
to clarify the circumstances under which
documentary evidence will be admissible on
behalf of either party in an extradition
hearing.
Many treaties specifically set out the
manner in which extradition documents
must be authenticated," and subparagraph
(A) of paragraph (1) provides that docu-
ments?so authenticated shall be admissible.
It also provides that documents authenticat-
ed in accordance with the provisions of
United States law shall be deemed admissi-
ble as evidence in the extradition hearing.
Thus, documents which comply with the re-
quirements of Article IX of the Federal
Rules of Evidence would be admissible in
extradition proceedings. However, the provi-
sion does not require the exclusion from the
hearing of evidence which fails to satisfy
the Federal Rules of Evidence. Rather, the
subsection merely underscores the common-
sense proposition that evidence which satis-
fies the high standards set out in the Rules,
and which would be admissible in civil or
criminal proceedings in this country, should
likewise be acceptable in extradition pro-
ceedings.
Subparagraph (B) of paragraph (1) is
based on 18 U.S.C. 3190 and provides that a
document authenticated accordance with
the applicable laws of the foreign country
requesting extradition shall be admissible if
it is accompanied by an attestation to this
effect from a judge, magistrate, or other ap-
propriate officer of the foreign state. The
phrase "other appropriate officer" would in-
clude an official of the foreign counterpart
of the Department of Justice, or any other
government official likely to be familiar
with legal matters in the foreign country. It
further requires that the signature and po-
sition of the person so attesting be certified
by a diplomatic or consular officer of the
United States posted in the foreign country,
or by a diplomatic or consular officer of the
foreign state assigned to this country." The
provision thus brings the essential require-
ments of 18 U.S.C. 3190 more into line with
Rule 902(3) of the Federal Rules of Evi-
dence.
Subparagraph (C) of paragraph (1) per-
mits the court handling an extradition
matter to accept as evidence any documents
which it is persuaded are in fact authentic,
regardless of compliance with either of the
two previous provisions. This rule is similar
to Rule 901(a) of the Federal Rules of Evi-
dence, and is in accord with established case
law permitting the authenticity of docu-
ments presented in extradition proceedings
to be established by the testimony from
expert witnesses or by other evidence."
Paragraph (2) of subsection (c) provides
that a certificate or affidavit by an appro-
priate State Department official as to the
existence or interpretation of a treaty is ad-
missible as evidence of that treaty or its in-
terpretation. ,
The overwhelming majority of extradition
treaties require that the requesting country
present such evidence of criminality as
would justify commitment for trial had the
crime or offense been committed in the
place where the fugitive has been found.
Under paragraph (2) such a treaty provision
may be satisfied by evidence establishing
probable cause to believe that a crime was
committed and that the person sought com-
mitted it. This is the usual standard for
commitment for trial in Federal criminal
cases.66 This approach permits the Federal
courts to apply the standard for commit-
ment with which they are most familiar,
and establishes a single, uniform standard
by which the sufficiency of evidence in ex-
tradition proceedings may be measured. It is
also consistent with the views expressed in
several recent court decisions pointing out
the advantages of dealing with the quantum
of evidence for extradition in a manner con-
sistent with Federal law.67
Paragraphs (1), (2), and (3) of subsection
(d) carry forward the requirements of 18
U.S.C. 3184 that instruct the court to find
the fugitive extraditable if the evidence pre-
sented is sufficient to sustain the complaint
under the provisions of the applicable
treaty, and also requires that the court find
probable cause that the person before it is
the person sought in the foreign state, and
that none of the defenses to extradition
which the court is empowered to consider
are applicable. Paragraph (4) bars extradi-
tion unless the acts for which the fugitive's
surrender is requested would constitute a
crime punishable under State or Federal
law in the United States. Finally, the sub-
section states that the findings required for
extradition maty be established by hearsay
evidence or certified documents alone. This
rule is similar to Rule 5.1 of the Federal
Rules of Criminal Procedure, which permits
a finding of probable cause to commit for
trial to be based on hearsay evidence. It is
also in accord with recent court decisions
which point out that the kind of evidence
necessary for extradition is an issue which
should be determined by uniform national
law.68
Subsection (e) details the procedures that
the court must follow at the conclusion of
the hearing. If the court finds that the fugi-
tive is extraditable, it must state, in writing,
its findings and rationale with respect to
each of the offenses for which extradition is
sought." These findings must be sent to the
Secretary of State, together with a tran-
script of the hearing.") If the court finds
that the fugitive is not extraditable, the
findings required by the subsection may be
accompanied by a report rather than a tran-
script of the hearing.
SECTION 3195-APPEAL
1. Present Federal law
Under present Federal law, there is no
direct appeal from a judicial officer's find-
ing in an extradition hearing.71 A person
found extraditable may only seek collateral
review of the finding, usually through an
application for a writ of habeas corpus.72
The foreign government that is dissatisfied
with the results of the hearing must insti-
tute a new request for extradition.76 The
lack of direct appeal in extradition matters
adds undesirable delay, expense, and com-
plication to a process which should be
simple and expeditious.
2. Provisions of section 3195
Section 3195 of the proposed chapter per-
mits either party in an extradition case to
appeal directly to the appropriate United
States court of appeals from a judge or mag-
January 27, 1983
istrate's decision. It is anticipated that
review on appeal will be very narrow, and
that any findings of fact by the lower court
will be affirmed unless they are clearly erro-
neous.
Subsection (a) specifies that the appeal
shall be filed within the time limits set out
in Rules 3 and 4(b) of the Federal Rules of
Appellate Procedure, i.e., 10 days for the
person sought and 30 days for the govern-
ment. These are the same deadlines for
filing a notice of appeal in criminal cases,
and while the an extradition hearing is not
a trial," or even strictly a criminal proceed-
ing,76 these deadlines adequately balance
the competing interests of fairness and ex-
pedition. It is anticipated that other aspects
of the appeal process (such as the prepara-
tion and submission of the record, briefing,
argument and decision) will be governed by
the applicable provisions of the Federal
Rules of Appellate Procedure.
If the fugitive has been found extradit-
able, subsection (a) requires that surrender
to the foreign government be stayed pend-
ing determination of the appeal by the
court of appeals." This provision prevents
the government from mooting the appeal by
spiriting the petitioner out of the country
while the matter is sub judice. The provi-
sion is designed to maintain the status quo
with respect to the fugitive's custody pend-
ing appeal. It is anticipated that the district
court will not ordinarily stay or delay any
other element of the extradition process,
such as the certification of its findings to
the Secretary of State under section
3194(e).
Subsection (b) provides that a person
found extraditable must remain in official
detention pending the appeal unless the
court of appeals finds that special circum-
stances require release. This is a slight ame-
lioration of present law, which does not
permit the release of a fugitive on bail after
he has been found extraditable.? The
change is desirable because the same kind of
pressing, unusual situation which might re-
quire that the person sought be released
from custody on bail pending the extradi-
tion hearing 78 could conceivably arise after
the extradition hearing. However, it is an-
ticipated that this authority to release a fu-
gitive on bail will be utilized even more spar-
ingly than the power to grant bail before
the extradition hearing, and only after the
most thorough and searching examination
of the claimed need for release. It is expect-
ed that the courts of appeal will keep in
mind that "no amount of money could
answer the damage that would be sustained
by the United States if [the fugitive] were
to be released on bond, flee the jurisdiction,
and be unavailable to surrender. . . ." 79
If the person was found not extraditable,
subsection (b)(2) permits the district court
to order that the person be released pending
an appeal by the government. Release shall
be ordered unless the district court is satis-
fied that the appellee is likely to flee before
the appeal is decided, or endanger the
safety of any other person or the communi-
ty.
A major purpose of section 3195 is to sim-
plify, and thereby expedite, the extradition
process by providing for a direct appeal
from a contested decision on extradition.
The direct appeal provided by this section
largely eliminates the present need for
habeas corpus proceedings in order to
obtain judicial review of the initial finding
that a person is extraditable. This purpose
would be frustrated if a fugitive bent on
dilatory tactics were permitted to pursue an
appeal under this section, a petition for cer-
tiorari to the Supreme Court, and then
begin one or more rounds of habeas corpus
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January 27, 1983 CONGRESSIONAL RECORD --- SENATE
proceedings. Such a course of action would
lengthen the extradition process rather
than shorten it. Therefore, subsection (c)
deprives any court of jurisdiction to review
a finding that a fugitive is extraditable
under this chapter unless the fugitive has
exhausted the appellate remedies available
to him by right in this section. It also fore-
closes an appeal, a petition for habeas
corpus, or declaratory judgement action if
the validity of the fugitive's commitment
for extradition has been ruled upon in prior
proceedings, unless grounds are offered
which could not have been presented previ-
ously.
The resolution of challenges to judicial
action in international extradition cases
should be especially prompt. Extradition
cases are quasi-criminal in nature. More-
over, in such cases, our goverruhent's will-
ingness to make a timely and ungrudging
execution of its solemn treaty obligations to
a friendly nation is in question." Therefore,
this section requires that courts of appeal
decide cases arising under this chapter expe-
ditiously.
SECTION 3196?SIIRRENDER OF A PERSON TO A
FOREIGN STATE
1. Present Federal law
Under 18 U.S.C. 3186, the Secretary of
State may order that any person found ex-
traditable by a court under 18 U.S.C. 3184
be delivered to an authorized agent of the
government seeking extradition. Although
It is generally agreed that the Secretary's
decision in this matter is discretionary,"
present law provides no indication of the pa-
rameters of the Secretary's discretion.
18 U.S.C. 3188 states that if a fxigitive
found extraditable under 18 U.S.C. 3184 is
not removed from the United States within
"two calendar months" of the court's com-
mitment order, he may be released from
custody unless there is "sufficient cause"
why release should not be ordered.'' The
courts have held that if the fugitive Insti-
tutes litigation challenging his extradition,
the two-month period commences when the
claims are finally adjudicated rather than
when the commitment order was issued's'
2. Provisions of section 3196
Subsection (a) carries forward the essence
of 18 U.S.C: 3186 by providing that the Sec-
retary of State shall make the final decision
as to extradition. The subsection requires
that the Secretary's decision be made in ac-
cordance with the chapter and the applica-
ble treaty, and lists the actions that the Sec-
retary may take.
Subsection (W(1) simply permits the
Secretary to order the surrender of a
person the court has found to be extradit-
able to a duly appointed agent of the for-
eign state.
Subsection (a)(2) permits the Secretary to
condition the surrender of a fugitive upon
the acceptance by the foreign state of re-
strictions or conditions he considers neces-
sary in the interest of justice or to effectu-
ate the purposes of the treaty. This provi-
sion underscores the Department of State's
authority to impose such restrictions where
humanitarian concerns 14 or questions con-
cerning trial procedures in the requesting
state exist," It would also permit the impo-
sition of restrittions expressly contemplated
in the provisions of some newer treaties."
Subsection (a)(3) provides that the
Secretary of State shall deny extradition
where he is persuaded that the foreign state
is seeking the person's extradition "for a po-
litical offense or an offense of a political
character, or for the purpose of prosecuting
or punishing the person for his political
opinions." The first of these determina-
tions?i.e., whether the offense is a "politi-
cal offense or an offense of a political char-
acter"?currently is decided by the courts.
The Committee concluded that the adver-
sary judicial procedure requiring State De-
partment expert testimony on an evaluation
of volatile political situations in foreign
countries Is an unsatisfactory way to resolve
this issue. Other fundamental reasons un-
derpinning structural alteration of the deci-
sion-making apparatus with respect tO the
political offense exception were addressed
in the discussion relating to section 3194
supra and are not repeated here. This bill
meets these problems by shifting the politi-
cal offense exception decision to the Secre-
tary of State, subject to judicial review
based on a substantial evidence test in the
court of appeals for the circuit in which the
extradition proceeding took place. With re-
spect to judicial review, it should be noted
that an adequate administrative record
must be made providing the factual basis
for the Secretary's decision.
In addition, the bill provides guidelines to
be applied by the Secretary of State that
are intended to prevent relief from extradi-
tion for the specified offenses except in the
most rare circumstances. This part of the
bill reads as follows:
When it is claimed that the foreign gov-
ernment is seeking the person for a political
offense or an offense of a political charac-
ter, the Secretary will make his determina-
tion in accordance with the following princi-
ples. A political offense or an offense of a
political character normally does not in-
clude?
(A) an offense within the scope of the
Convention for the Supression of Unlawful
Seizure of Aircraft, signed by The Hague on
December 16, 1970;
(B) an offense within the scope of the
Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation,
signed at Montreal on September 23, 1971;
(C) a serious offense involving an attack
against the life, physical integrity, or liberty
of internationally protected persons (as de-
fined in section 1116 of this title), including
diplomatic agents:
(D) an offense with respect to which a
treaty obligates the United States to either
extradite or prosecute a person accused of
the offense:
(E) an offense that consists of homicide,
assault with intent to commit serious bodily
Injury, rape, kidnapping, the- taking of a
hostage, or serious unlawful detention;
(F) an offense involving the use of a fire-
arm (as such term is defined in section 921
of this title) if such use endangers a person
other than the offender;
OW an offense that consists of the manu-
facture, importation, distribution or sale of
narcotics or dangerous drugs; or
(H) an attempt or conspiracy to commit
an offense described in paragraphs (A)
through (C) of this paragraph, or participa-
tion as an accomplice of a person who com-
mits, attempts, or conspires to commit such
an offense.
The first four criteria involve commit-
ments made by the United Stated pursuant
to international conventions or agreement,
such as aircraft hijacking and terrorist acts
against internationally protected persons.
The next two cover serious crimes of vio-
lence against the person, including endan-
gering others through the use of firearms or
explosives. The seventh criteria relates to
drug trafficking, while the eighth factor
deals with attempt, conspiracy, and accom-
plice liability for the preceding categories of
offenses.
It should be noted that the guidelines in
fact set forth certain types of offenses that
should not "normally" be found to be "polit-
ical offenses". Use of the term "normally"
S413
recognizes that there may be a rare situa-
tion in which the nature of, and events in, a
foreign country and the traditions of free-
dom and political democracy In the United
States combine to compel the Secretary of
State to find one of the listed offenses a po-
litical offense under the circumstances of
the case. While the Committee elected to
retain this narrow flexibility, it is noted
that the United States has well established
principles governing executive authority to
grant political asylum that should more
than adequately provide the alternative and
preferred basis for appropriate relief from
extradition on political grounds consistent
with the traditions, heritage, and foreign
policy principles of this country.
It should also be noted that this provision
provides that any evidence or arguments
the fugitive wishes to present to the Secre-
tary of State with respect to the alleged po-
litical nature of extradition shall be in writ-
ing. The Secretary is not required to provide
a formal hearing on a political offense ex-
ception application,u but it is expected that
the Secretary will utilize the resources of
the Department of State for gathering evi-
dence and assessing the claim.
Subsection (a) also makes it explicit in the
statute that the decisions of the Secretary
of State tinder paragraphs (1), (2), and (3) of
that subsection are in the nature of post-ju-
dicial "last step" final administrative deter-
minations prior to actually effecting the ex-
tradition and, as such, are not subject to ju-
dicial review.
Finally, subsection (a) expressly author-
izes surrender of United States nationals
unless surrender is expressly prohibited by
the applicable treaty.? This provision is
necessary in light of the decision in the Val-
entine" case in which the Supreme Court
held that language contained in many of
the older extradition treaties to 'which the
United States is a party does not permit the
surrender of United States citizens absent
explicit statutory authority for such surren-
der. The result of the Valentine decision has
been to effectively Immunize United States
citizens from extradition in many cases?a
result never intended by the negotiators of
the treaties involved. It is the policy of the
United States to treat its citizens and aliens
within its borders equally in extradition
matter,90 and this subsection permits that
policy to operate effectively.
Subsection (b) requires that the Secretary
of State notify all interested parties of his
decision on extradition.
Subsection (cX1) provides that the fugi-
tive shall be released from custody if the
Secretary of State does not order, or de-
clines to order, the person's surrender
within forty-five days after receiving the
record of proceedings from the court. Of
course, if the Secretary of State decides
within the forty-five days to refuse to order
extradition, the authority for holding the
person sought in custody under section
3194(eX1) immediately expires, and the
person should be released from detention at
once.
Subsection (c)(2) is based on the provi-
sions of 18 U.S.C. 3188, and provides that
when the Secretary of State has ordered a
person extradited, the foreign country in-
volved must take custody of the person and
remove him from the United States within
30 days. This 30-day time period does not
begin until all litigation challenging extradi-
tion has been completed. The subsection ex-
pressly excludes from consideration the
time during which surrender has been
stayed pending litigation.
? Subsection (c) requires a person found ex-
traditable to give the Secretary of State rea-
sonable notice that he will seek release be-
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CONGRESSIONAL RECORD ? SENATE January 27, 1983
cause of expiration of a time limitation set
forth in subsection (c)(1) or (c)(2), and for-
bids release if good cause is shown for the
delay in effecting surrender.
SECTION 3 19 7?RECEIPT OF A PERSON FROM A
FOREIGN STATE
1. Present Federal Law
18 U.S.C. 3192 authorizes the President to
"take all necessary measures for the trans-
portation and safekeeping" of a person ex-
tradited to the United States from a foreign
country. At one time the President relied
upon this statute to issue a warrant desig-
nating an agent to receive custody of a fugi-
tive from a foreign government. 18 U.S.C.
3193 authorizes such an agent to convey the
fugitive directly to the place of trial, and
grants to the agent "all the powers of a
Marshal of the United States, in the several
federal districts through which it may be
necessary for him to pass with (the] prison-
er . . .". The authority to issue warrants
and appoint agents under these sections has
now been delegated to the Secretary of
State." However, the Department of State
wishes to transfer to the Department of
Justice the authority to appoint agents and
issue warrants in these matters.
2. Provisions of section 3197
Section 3197 of the proposed chapter car-
ries forward the provisions of 18 U.S.C. 3192
and 3193, with minor modifications reflect-
ing present United States practice.
Subsection (a) authorizes the Attorney
General to designate an agent to receive
custody of a fugitive surrendered by a for-
,eign government, and permits the agent to
convey the fugitive to the place of trial in
the United States. The final sentence of the
subsection permits the extradited fugitive to
be taken directly to the Federal district or
State jurisdiction in which charges are out-
standing without removal proceedings
under Rule 40 of the Federal Rules of
Criminal Procedures or interstate rendition
proceedings.
Section 3197(b) is new, and is designed to
implement provisions, found in some of the
most recent United States extradition trea-
ties. The laws in many foreign countries re-
quire that extradition be postponed until
the person has satisfied any outstanding
criminal charges in that country.92 Fre-
quently, a person sought by the United
States has already been tried and convicted
of other charges in the requested country
and has a sentence to serve there. If the
sentence abroad is a long one, the postpone-
ment of surrender could compromise the
possibility of a speedy and fair trial in this
country.03 Some extradition treaties contain
provisions which deal with this problem by
permitting "temporary extradition". Under
these treaty provisions, a fugitive convicted
abroad would be surrendered to the United
States solely for purpose of trial and sen-
tencing here, then returned to the foreign
country involved to finish the sentence pre-
viously imposed there.," This process bal-
ances our government's interest in adjudi-
cating the charges while the evidence is
fresh with the foreign country's desire to
fully enforce its laws. It also works to a fugi-
tive's benefit by enabling him to answer the
charges in this country while evidence for
his defense is still available, and by creating
the possibility that the sentence imposed
upon conviction in this country could run
concurrently with that the fugitive must
serve abroad.
Section 3197(b) provides implementing
legislation for treaty provisions of this
types. It provides that when a foreign state
has delivered a person to the United States
on the condition that the person be re-
turned at the conclusion of the criminal
trial or sentencing, the Bureau of Prisons
shall keep the person in custody until the
judicial proceedings are concluded, and
thereafter surrender the person to a duly
appointed agent of the foreign country. It
also provides that the return to the foreign
state of the person is not subject to the re-
quirements of the chapter, such as an extra-
dition hearing or an order of surrender by
the Secretary of State.
SECTION 3 1 9 8?GENERAL PROVISIONS FOR
CHAPTER 210
1. In general
This section contains the definitions and
general provisions applicable to the extradi-
tion chapter.
2. Present Federal law
18 U.S.0 3198 requires that the foreign
government which sought extradition pay
all costs and fees resulting from the request.
The costs resulting from extradition re-
quests here frequently are so small that it is
uneconomical?and diplomatically embar-
rassing?to attempt to enforce this statute.
Moreover, many of the extradition treaties
to which the. United States is a party con-
tain provisions which modify this statutory
rule.95 Also, the United States has entered
into informal arrangements with some
countries whereby each country bears most
of the cost of the other's extradition re-
quest. In short, the present statute does not
adequately reflect government policy in ex-
tradition matters.
Present statutory law offers no guidance
as to who must pay the costs associated
with United States requests to foreign coun-
tries for the extradition of fugitives. The
Department of State requests extradition
on behalf of either the State within the
United States in which the fugitive is
charged, or, if Federal charges are involved.
on behalf of the United States. Therefore,
the long-standing policy of the Department
of State has been that the State jurisdiction
which sought the fugitive's return must pay
any expenses incurred in connection with
the extradition request, and the Depart-
ment of Justice must pay the expenses in-
curred in obtaining the extradition of a fu-
gitive Federal offender.
3. Provisions of section 3198
Subsection (a) of section 3198 sets forth
definitions for the terms "court", "foreign
state", "treaty", and "warrant".
Subsection (b) states that in general a for-
eign state which has requested the extradi-
tion of a. _fugitive located in the United
States must bear all costs and expenses in-
curred in connection with that request.
Since many of the extradition treaties con-
tain provisions specifically dealing with
costs in extradition matters, the subsection
authorizes the Secretary of State to direct
that this matter be handled in accordance
with terms of the applicable treaty or agree-
ment. Subsection (b) also requires that all
cost and expenses incurred in connection
with the execution of a request by a State
of the United States for the return of a fu-
gitive located in another country must be
paid by that State. When the request for ex-
tradition is made to secure the return of a
fugitive wanted for a Federal offense, the
expenses must be borne by the United
States. It is anticipated that when the fugi-
tive involved is sought for both Federal and
State offenses, the costs incurred abroad
will be allocated accordingly.
FOOTNOTES
'Extradition Act of 1981, Hearings before the
Committee on the Judiciary, U.S. Senate, 97th
Cong., 1st Sess. (1981) [hereinafter cited as Hear-
ings].
United States v. Mackin,?F.2d?(2d Cir. 1981).
? Valentine v. U.S. ex ret Neidecker, 299 U.S. 5
(1936); Argent? v. Horn, 241,. F.2d 258, 259 (6th Cir.
1957). cert, denied 355 U.S. 818 (1957); /wince/no v.
Artulcovic, 211 F.2d 565, 566 (9th Cir. 1954) cert.
denied, 34 U.S. 818 (1954); Emu. Legal Basis for
Extradition in the United States, 16 New York Law
Forum 525, 529-530 (1980); 6 Whiteman. Digest of
International Law 727 (1968).
? See e.g., Art. 14, Amending Protocol to the 1961
Single Convention on Narcotic Drugs, done at
Geneva. March 24, 1972, 26 U.S.T. 1439, T.I.A.S.
8118 (entered into force for the United States
August 8, 1975); Art. 8, Convention on Suppression
of Unlawful Seizures of Aircraft, done at The
Hague, December 16, 1970, 22 U.S.T. 1641, T.I.A.S.
7192 (entered into force for the United States Octo-
ber 14, 1971); Art, 8, Convention on the Prevention
and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents,
done at New York. December 14, 1973, 28 U.S.T.
1975, T.I.A.S. 8532 (entered into force for the
United States February 20, 1977).
'See. e.g., Holmes V. Laird, 459 F.2d. 1211, 148
U.S. App. DC. 187 (D.C. Cir. 1972), cert. denied, 409
U.S. 869 (1972); Williams v. Rogers, 449 F.2d 513
(8th Cir. 1971). cert. denied, 405 U.S. 926 (1972).
See e.g., Kalatijis v. Rosenberg, 305 F.2d 249
(9th Cir. 1962).
6 Whiteman, supra note 3. at 935.
8 United States ex rel Caputo v. Kelley, 92 F.2d 603
(2d Cir. 1937). cert. denied, 303 U.S. 635 (1938): Or-
new v. Ruiz, 161 U.S. 502 (1896); Castro V. DeUr-
ierte, 12 Fed. 250 (S.D. N.Y. 1882). See, generally, 6
Whiteman supra note 3, at 935; Note, United States
Extradition Proceedings, 16 New York Law Forum
420. 432 (1980).
0 1 Moore, A Treatise on Extradition and Inter-
state Rendition, 410-415, (1891).
"0 See, e.g., Schoenbrun V. Drieband, 268 F. Supp.
332 (ED. N.Y. 1967).
I' See, e.g.. United States ex rel. Caputo V. Kelley,
supra note 8.
"In re David, 395 F. Supp. 803. 807 (ED. Ill.
1975); United States ex rel. Petruschansky v. Mar-
asco, 215 F. Supp. 953, 957 (ED. N.Y. 1963) aff'd
325 F.2d 562 (2nd Cir. 1963). cert. denied, 376 U.S.
952 (1964).
"For example, many Federal, State, and local
law enforcement agencies rely on the FBI National
Crime Information Center-"NCIC"-in determining
whether an individual is wanted for arrest in an-
other jurisdiction. Since no complaint for extradi-
tion can be filed against a fugitive whose location is
unknown, there can be no Federal arrest warrant
issued, and no information on the person will
appear in NCIC. Thus, law enforcement officers
may have no way to learn that a particular person
is an international fugitive sought for extradition.
In Wright v. Henkel, 190 U.S. 40 (1903), the Su-
preme Court reviewed former section 596 of title 18
(now 18 U.S.C. 3141), in conjunction with former
section 591 (now 18 U.S.C. 3041). and concluded
that there was no statute providing for admission
to bail in cases of foreign extradition. The Bail
Reform Act (which amended Sections 3041, 3141-
3143, and 3568, and enacted 18 U.S.C. 3147-3152)
did not alter this result. The Act liberalized access
to bail in those cases to which the bail statutes
apply, but did not broaden the availability of bail
generally. Both the previous sections of the law and
the provisions of the Ball Reform Act apply only to
"person(s) charged with an offense," and the term
"offense" is expressly defined in 18 U.S.C. 3156 as
"any criminal offense . . . which is in violation of
any Act of Congress and is triable In any court es-
tablished by Act of Congress . . . ". Since fugitives
facing extradition to a foreign country are not ac-
cused of any Federal criminal offense, and will not
be tiled in any Federal court, the bail statute's pro-
visions do not apply to them. Cf. Kelley V. Sprin-
gette, 527 F.2d 1090, 1093 (9th Cir. 1975); Beaulieu
v. Comm* of Massachusetts, 382 F. Id 290 (1st Cir.
1967),
.8 United States V. Williams, 611 F.2d 914 (1st Cir.
1979); Beaulieu V. Hartigan, 554 F.2d 1 (1st Cir.
1977); Wright v. Henkel, supra note 14.
"Hu Yan-Leung V. Soscia,?F.2d?. (2d Cir. May
26. 1981).
"See, In re Chan Kam-Shu, 477 F.2d 333 (5th
Cir. 1973), cert. denied, 414 U.S. 847 (1973); Vardy v.
United States, 529 F.2d 404 (5th Cir. 1976), rehear-
ing denied., 533 F.2d 310 ,5th Cir. 1976); In re
Do,nd, 390 F. Supp. 521 and 395 F. Supp. 903 (ED.
Ill. 1975).
"Provisional arrest Is a well-recognized aspect of
international extradition procedure, and is specifi-
cally provided for in most of the extradition trea-
ties to which the United States is a party. See. e.g.
Art. 11, Extradition Treaty, United States-Canada;
signed Dec. 31. 1971, 27 U.S.T. 983, T.I.A.S. 8237
(entered into force March 27, 1976). See generally,
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Januctly 27, 1983 CONGRESSIONAL RECORD ? SENATE S 415
Reuschlein, Provisional Arrest and Detention in In-
ternational Extradition, 23 Georgetown Law Jour-
nal 37 (1934); Note, le New York Law Forum-420,
429-430 (1970).
" E.G., contains an indication that the fugitive is
likely to flee the jurisdiction and be unavailable by
the time the extradition documents arrive.
"See, 6 Wh1temen, supra note 3, at 931; Whitely
v. Warden, Wyoming, State Penitentiarli 401 U.S.
560, 588 (1970): United States V. McCraY, 468 F.2d
848 (5th Cir. 1967).
21 See, e.g., Caltagirone v. Grant, 829 F.2d 739(96
dr. 1980).
""Court" is defined in section 3198(aX1) to mean
a United States district court established pursuant
to 28 U.S.C. 132, or the District Court of Guam, the
Virgin Islands, or the Northern Mariana Islands, or
a United States magistrate authorized to conduct
an extradition proceeding.
sa Thus, the section eliminates the arbitrary rule
created by the Supreme Court in Pettit v. Walshe,
194 U.S. 205 (1904). See note 40, infra, and accom-
panying text. This rule Is unnecessary in light of
proposed section 3194(cX3).
"See notes 15 and 18. supra,
"In re Mitchell, 171 Fed. 289, 290 (S.D.N.Y.
1909).
"See, e.g., /n re Kaplan, ay. No. 79-2219 RP'
(C.D. Cal July 29, 1979).
" See, e.g., /n re Itoka, Misc. No. 79-1538?M (D.
N.M. Dec. 17, 1979).
"See, /n re Chan Kam-Shu, 477 F.2d 333, 339-340
(5th Cir. 1973) cert. denied, 414 U.S. 847 (1973).
"United States v. Clarke, 470 1'. Supp. 979 (D.
Vermont 1979).
"E.g., Art. 13(2). Extradition Treaty, United
States-Norway, signed June 9, 1977, ? U.S.T.
T.I.A.S. 9679 (entered into force March 8, 1980).
"It is anticipated that in most cases the Attor-
ney General will act through the United States at-
torney for the district in which the fugitive is locat-
ed. If the foreign government Involved feels the
need to participate in the judicial proceedings, it
can retain counsel and seek to enter the case as
antic= curial.
"Valentine V. United States ex rel. Neidecker, 299
U.S. 5, 8 (1936) i United States v. Rauscher, 119 U.S.
407, 414 (1886).
"See e.g., Art. 10, Extradition Treaty, United
States-Japan, signed March 3, 1978, ? U.S.T.
T.I.A.S. 9625 (entered Into force March 25, 1980) ;
Art. 18, Extradition Treaty, United States-Mexico,
signed May 4, 1978, ? U.S.T. T.I.A.S. 9658 (en-
tered into force January 24, 1980).
"See 18 U.S.C. 4107-4108.
" For example, a fugitive might wish to waive ex-
tradition on only one of many outstanding charges
against him in the requesting state. Under these
circumstances, that foreign state might conceivably
prefer to have extraditability determined as to all
of the charges.
"For example, many extradition treaties permit
the requested state to postpone extradition until
the person sought has been tried and punished for
criminal charges outstanding in that state. A
person facing criminal charges or imprisonment in
this country might well attempt to expedite his ex-
tradition to a foreign country where less serious
charges are pending, in order to avoid prosecution
or punishment here. In such circumstances, it
would not be appropriate for the United States to
permit expedited surrender, at least not until the
charges in this country have been resolved or the
sentence served.
"Shearer. Extradition in International Law, 137-
141 (1971) ; 8 Whiteman, supra note 3, at 773-779;
Freeman v. United States, 437 F. Supp. 1252, 1263
(Ni). Ga. 1977).
"See, e.g., Art. 2(1). Extradition Treaty, United
States-Japan, signed-March 3, 1978, ? U.S.T.
T.I.A.S. 9625 (entered into force March 25, 1980).
Cucuzella v. Kelitkaa, 638 F.2d 105 (9th Cir.
1981) ; Branch v. Raiche, 618 F.2d 843. (1st Cir.
1980) ; Freedman v. United States, supra note 37, at
1252, 1263.
"Pettit v. Wa1she, supra note 23 ; see e.g., U.S. ex
rel. LoPizzo V. Mathews, 38 F.2d 565 (3d Cir. 1929) ;
U.S. ex rel.. Rauch v. Stockinger, 170 F. Supp. 506
(E.D. N.Y. 1959), aff'd 269 F.24 681 (2d an 1959),
cert detiied, 371 U.S. 913 (1959) : O'Brien v. Roz-
mann, 554 F.2d 780 (6th Cir. 1977).
" Greet V. BirIcness, 527 F.2d 956, 958, at note 3
(1st dr. 1976) ; Application of D'Amico, 185, F.
Supp. 925-930, at note 6 (S.D.N.Y. 1980), appeal dis-
missed, 286 F.2d 320 (2d Cir. 1960), cert denied, 366
U.S. 963 (1982).
"8 Whiteman, supra note 3.
4' Great v. Bintness, supra note 41; Sindona v.
Grant, 461 F. Supp. 199 (S.D.N.Y. 1978); Branch v.
Raiche, supra note 39.
? Saime V. Shipley, 418 F.2d 879, 885 (5th Cir.
1969), cert. denied, 390 U.S. 903 (1970).
"Rule 1101. Federal Rules of Evidence,
" The Supreme Court has Indicated -that requir-
ing the foreign state to produce live witnesses in ex-
tradition hearings would tend to "defeat the whole
object of the treaty." Bingham v. Bradley. 241 U.S.
511, 517 (1918): see also, Collins v. Lobel, 259 U.S.
309, 317 (1922): Sayne v. Shipley, supra note 44 /n
re David, supra note it O'Brien v. Rozmann, supra
note 40.
"United States V. Milani., 429 F.25 1215, 1225-
1229 (D. Conn. 1977), rev'd on other grounds, 588
P.96234, 240(96 Cir. 1977): Shapiro v. Ferrandina,
478 F.2d 894, 903 ad Cir. 1973); In re Ednionson, et
al. 352 F. Supp. 22,24 (D. Minn. 1972).
"The consular and diplomatic officers who must
sign the certificate are usually not lawyers, and it Is
difficult for them to know whether the documents
presented to them are in fact acceptable "for simi-
lar purposes" in the courts of the requesting state.
"Freedman v. United States, supra note 37: U.S.
ex rel. Petrushansky V. Marasco, *nem note 12.
so Coppelman, Extradition and Rendition.' Histo-
ry-Law-Recommendations, 14 Boston Lit 591; 614
(1934).
"18 U.S.. 3191 provides for compulsory process
to secure the attendance at extradition hearings of
witness on behalf of indigent fugitives. However,
the statute applies only to witnesses who are resi-
dent in the United States. Merino V. United States
Marshal, 328 F.2d 5, 11 (9th Cir. 1984), cert. denied,
377 U.S. 997 (1964).
"Matter of Sindona, 450 F. Supp. 872 (S.D.N.Y.
1978); Shapiro v. Ferrandina, supra note 47; Freed-
man v. United States, supra note 37: Sayne v. Ship-
ley, supra note 44; First National City Bank v. Arts-
tequieta, 287 F.2d 219, 228 (2d ar. 1980); Desmond
v. Eggers, 18 F.2d 503, 503-506 (9th Cir. 1927); Col-
lins v. Loisel, supra note 48; Charlton V. Kelley, 229
U.S. 447, 45(19I3).
"See, generally, 6 Whiteman, supra note 3, at
859-885; Note, Statute of Limitation: in Interna-
tional Extradition, 48 Yale L.J. 701 (1939).
"See, e.g., Galante V. Palianck, 568 F.2d 234 (96
Cir. 1978).
"In re Recta et at, 82 Fed. 972 (Ni). Cal. 1894).
Basically, under current case law, some courts have
said that there are "pure" political offenses, such
as treason or sedition, and "relative" political of-
fenses, such as one "committed in the course of fur-
thering civil war, insurrection or political commodi-
Won." Id.; Karadzole V. Artukovic, 242 F.2d 198 (9th
Cir. 1957,) rev'd on other grounds, 344 (U.S. 393
(1957); United States ex teL Karadsole V. Artulcovic,
170 F. Supp. 383 (Si). Cal. 1959); Ramos v. Diaz,
179 F. Supp. 459 (S.D. Fla. 1959); see Hannay, Inter-
national Terrorism and the Political Offense Excep-
tion to Extradition, 18 Columbia Journal of Trans-
national Law 381 (1980).
"In re Lincoln. 228 Fed. 70 (E.D.N.Y. 1915), aff'd
per curium, 241 U.S. 651 (1917); /n re Gonzalez, 217
F.2d 717. 722 (S.D.N.Y. 1963); Garcia-Guillerin V.
United States, 450 F.2d 1192 (5th Cir. 1971); /n re
Locatelli, 468 F. Supp. 568, F. Supp. 588, 575
(S.D.N.Y. 1979); Sindono V. Grant, supra note 43.
"Compare Rived Abu Ecin V. Wilkes, 841 F.2d
504 (7th Cir.), cert. denied.?U.5.?(1913l), with the
Memorandum decision of the Secretary of State in
the case of Ztyad Abu lain, Hearings pp. 133-139.
"See, e.g., Art. 5(1). Extradition Treaty, United
States-Mexico, signed May 4, 1978,?U.S.T.?.
T.I.A.S. 9656 (entered into force January 25, 1980).
"For an excellent discussion of the political of-
fense exception to extradition and the impact of
recent cases, see Hearings, pp. 25-28, statement of
William M. HannaT. Hannay, supra note 55.
"See Hearings, pp. 3. 4, 25-28, statements of
Daniel McGovern and William M. Hannay; Levy.
Contemporary International Law: A Concise Intro-
duction, 190 (1979). The courts in various countries
differ widely on what kinds of offenses are covered
by the term, and legal scholars here and abroad
have proposed a host of different?and frequently
contradictory?proposals on the topic. See general-
ly, Carbonneau, The Political Offense Exception to
Extradition and Transnationa/ Terrorists.' Old Doc-
trine Reformulated and New Norms Created, 1
ASILS International Law Journal 1 (1977); Hannay,
supra note 55.
"Three recent extradition cases graphically il-
lustrate this point. In the Peter McMullen case.
McMullen was charged with the bombing of a Brit-
ish army installation in England. In the Desmond
Mackin case, Mackin was charged with an attempt
to murder a British soldier dressed in civilian
clothes in a Belfast bus station. In the third case,
Abu Rain V. Wilkes, supra Abu Eain was charged
with the bombing murder of several children in an
Israeli resort town. In both the McMullen and
Mackin cases the magistrates denied extradition on
the grounds that the offenses charged were "Politi-
cal offenses". In the Abu Zan case the court of ap-
peals held the political offense exception inapplica-
ble. William Hannay, commenting on this judicial
line drawing, observed (Hearing. p. 14):
In each of these cases, the test set forth in the
lgth century English case of hi re Cunard . . .
accepted as the operative definition of a "relative"
political offense. The court In a Castioni stated
that a political offense is. crime which was "Inci-
dental to and formed a port of political
disturbances", . . The absurdity and ultimate cru-
elty of applying this test or any other "test" of a
political offense Is illustrated by the assertion of
the magistrate in McMullen who taking the excep-
tion to its Insane but logical end, stated: "(elven
though the offense be deplorable and heinous, the
criminal action will be excluded from deportation if
the crime is committed under these pre-
requisites,". . . Mechanically applying the Cas-
tioni test the magistrates In Mackin and McMullen
concluded that extradition was prohibited since
"political disturbances" were taking place in North-
ern Ireland and the attempts by Mackin and
McMullen to kill British soldiers were natural inci-
dents of these disturbances.
(With respect to the Seventh Circuit decision in
Abu Rain) I find shocking the notion that the "po-
litical offense" exception is cut so far loose from
any ethical mooring that Abu Eain's defense team
could argue in apparent good faith that terror
bombing of civilians is a legitimate technique in an
"Insurrection-liberation struggle." and that the po-
litical offense exception prevents extradition for
such a crime. It was ? sad spectacle to see a former
Attorney General of the United States, represent-
ing Abu Ealn, stand before the Seventh Circuit and
utter that bankrupt shibboleth of moral relativism,
"one man's terrorist is another man's freedom
fighter." Second, the court's application of the (ju-
dicial] test for a political offense] in Abu lain was
ultimately just as mechanical as that in Mackin
and McMullen and left the unmistakable impres-
sion that the court would have denied extradition if
Abu Plain had directed his attacks at Israeli mili-
tary or governmental officials. . . . We should, I
suppose, feel some relief that the Seventh Circuit
recognized that the killing of children on the
streets of a resort town did not constitute a "politi-
cal offense."
Hannay has raised the issue factually (see
Hannay, supra note 55 at 382) but has not speculat-
ed on the llne the Seventh circuit would draw with
respect to the bombing assassination of Lord Louis
Mountbatten that incidentially killed his grandson,
a local youth, and the mother-In-law of his daugh-
ter.
"See supramote 52, and accompanying text.
"See, e.g., Art. 10(6). Extradition Treaty, United
States-Mexico, signed May 4, 1918. ? U.S.T.
T.I.A.A. 9658 (entered into force January 25, 1980).
The United States will also be a party to the Con-
vention Abolishing the Requirement of Legaliza-
tion for Foreign Public Documents, done at The
Hague, October 26, 1980, 527 U.N.T.S. 189 (ratified
by the Senate Nov. 28 1979). This Convention will
eliminate a substantial portion of the authentica-
tion requirement with respect to extradition docu-
ments submitted by one signatory country to an-
other.
"It is anticipated that in most cases the foreign
state's diplomatic or consular personnel assigned to
the United States will make the certification re-
quired by the section, thereby relieving U.S. diplo-
matic and consular officers abroad of this chore.
"See, generally, United States v. Galanis, 429 F.
Supp. 1215 (D. Conn. 1977), rev'd on other grounds,
568 F.2d 234 (2d Cir. 1978).
"See Rule 5.1, Federal Rules of Criminal Prem-
.
"Great v. Birkness, supra note 41; Breach V.
Raiche, supra note 39.
"U.S. ex re/. Sakaguchi v. Kaulukukui, 520 F.2d
728, 728 (9th Cl,', 1975); Shapiro v. Ferrandina,
supra note 47.
"This requirement is consistent with the prac-
tice followed by the courts today. See Kaplan v.
Voices, ? F.2d ?, (9th an July 6, 1981; Shapiro v.
Ferrandina, supra note 47.
"Present law (18 U.S.C. 3184) only requires that
the court send the Secretary a transcript of the tes-
timony taken at the hearing. By providing the ex-
ecutive branch with a fuller record of the proceed-
ings the Secretary of State will be more fully in-
formed in making his decision on extradition.
"Collins v. Miller, 252 U.S. 364,369 (1920).
"See, e.g., Sindona v. Grant, supra note 43.
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S 416 CONGRESSIONAL RECORD - SENATE January 27, 1983
"Hooker v. Skin, 573 F.2d 1360 (9th Cir. 1978); EXTRADITION ACT OP 1981 amendments. Specifically of interest to the
United States V. Mackin, supra note 2. The Committee on Foreign Relations, to Committee on Foreign Relations, the Judici-
14 Gluckman V. Henkel, 221 U.S. 508, 512 (1911).
*I United States ex rel. Oppenheim v. Hecht. 16 which was referred sequentially from the ary Committee amended section 3196(a) of
F.24 955. 956 (2nd Cir. 1927) United States ex rel. Committee on the Judiciary the bill. S. 1940 S. 1940 to provide that the Secretary of
Klein v. Mulligan, 1 F. Supp. 635, 636 M.D. N.Y. to amend Chapter 209 of Title 18, United State's authority to determine application
1922).of the political offense exception would be
States Code, relating to extradition, and for
"The automatic stay of extradition expires when other purposes, for the purpose of consider- subject to judicial review and be upheld by
the court of appeals issues its mandate in the Ing only "political offense" and related pro- the reviewing court if it is supported by
matter. Thus, the automatic stay would not ordi-
narily protect a fugitive seeking further, discretion-
visions, having considered the same, reports susbtantial evidence.
ary review, such as an applicant for a writ of certi- favorably thereon with amendments and COMMITTEE AcTioN
rail from the Supreme Court. Of course, the fugi- recommends that the bill as amended do S. 1940, as reported by the Committee On
Live whose case merits further review is free to re- pass. the Judiciary, was referred to the Conunit-
quest that either the court of appeals or the Su- PURPOSE tee on Foreign Relations on April 19.
Preine Court exercise its discretion by staying sur-
render while certiorari or other relief is considered. The purpose of S. 1940 is to modernize Following referral, majority and minority
"In fact, 18 U.S.C. 3184 specifically provides that federal practices and procedures with re- staff of the Committee jointly reviewed the
a person found extraditable must be committed "to spect to international extradition. The record from the three days of hearings held
the proper jail, there to remain until. . . surrender amendments to S. 1940 proposed by the in the House and Senate on revision in the
shall be made.
"See supra notes 23 and 24, and accompanying Committee on Foreign Relations are intend- extradition law. Staff also consulted with
text. ed to retain limited court jurisdiction with and reviewed the comments of represents-
', Jimenez V. Aristequieta, 314 F.2d 849 (5th Clr, respect to application of the political of- tives of the Departments of Justice and
1963). fense exception in international extradition State, the staffs of the House and Senate
.0* magisano v. Locke, 545 F.2d 1228, 1230 (9th Cir. proceedings while providing specific guid- Judiciary Committees, a panel of experts as-
1976). ance to the courts in making such findings. sembled by the American Society of Inter-
81 See, generally, Note, Executive Discretion in The proposed amendments carry forward in national Law, representatives from the
Extradition, 62 Columbia Law Review 1313 (1962).
"In re Factors Extradition, 75 F.2d 10 (7th Cir. slightly different format the proposal of the American Civil Liberties Union, practicing
1934); In re Norman?, 7 F. Supp. 329 (D. Mass. Judiciary Committee to provide the Secre- attorneys, and scholars concerning S. 1940
1934); 6 Whiteman, supra note 3, at 1064-69. t,ary of State with the sole authority to in- and the political offense exception.
*s Jimenee v. United States District Court for the quire into the motivation of the foreign At its business meeting on May 19, the
Southern District of Florida, 84 8. Ct. 14. 11 L. Ed. state in requesting extradition and to deter- Committee met to consider its proposed
2nd 30(1963); Barrett v. United =ace, 590 F.2d 624 mine whether extradition would be tricorn- amendments to S. 1940, as reported by the
cath Cir. 1978). patible with humanitarian considerations. Committee on the Judiciary on April 15.
44 See, e.g.. Perot/ V. Hylton. 542 F.2d 1247, 1249
(4th Cir. 1976), cert. denied, 429 U.S. 1062 (1977); In making either of the above determina- The proposed amendments concerned the
Sindona v. Grant, supra note 43 at 207 ; see Note, tions, the Secretary would be required to political offense exception and related pro-
Columbia Law Review. supra note 81. consult with the appropriate Bureaus and visions as set forth in S. 1940. Following dis-
sr, For example, the Department of State has fre- Offices of the Department of State, includ- cussion of S. 1940, the Committee by voice
quentlY conditioned Surrender of a fugitive convict- lug the Bureau of Human Rights and Hu- vote with a quorum present unanimously
ed in absentia upon a promise by the foreign court- manitarian Affairs. approved the proposed amendments de-
try involved to permit a retrail. See. 6 Whiteman, scribed in this Report.
repro, note 3, at 1051, 1117-1122. aAcKsItOuND
"For example, some treaties permit the request- The present bill, S. 1940, was originally in- CoMMITTEE COMMENTS
ed state to condition extradition upon satisfactory troduced as S. 1639 on September 18, 1981. The political offense exception is a stand-
assurances that the death penalty will not be im- by Senator Thurmond. On December 11, ard provision in U.S. extradition treaties
Posed. See e.g., Art. 6, Extradition Treaty. Canada-
united States. signed December 31. 1971. 27 U.S.T. 1981, Senator Thurmond introduced a clean and in its usual form provides that there
983, T.I.A.S. 8237 (entered into force March 27, bill, S. 1940, to incorporate changes that shall be no extradition for crimes of a politi-
1)76). had been suggested during the course of the cal nature. Political offenses are generally
s'i Peroff v. Hylton, 563 F.2d 1099. 1102-1103 (4th Judiciary Committee's consideration of the divided into two classes-"pure" political of-
cll.. 1977). original bill. The changes of specific interest fenses and "relative" political offenses. Pure
"At present, no extradition treaty to which the to the Committee on Foreign Relations political offenses include treason, sedition,
United States is a party expressly prohibits surren- were twofold, as the Report of the Commit- and espionage: crimes of political dissent
der of citizens of the requested state.
"299 U.S. 5(1936), supra note 32. tee on the Judiciary notes: that can only be committed against the
"Many foreign countries do not extradite their "First. S. 1940, as introduced made it man- state. Relative political offenses involve
citizens because those countries can Instead pros- datory-rather than discretionary-for the common crimes that are linked to political
ecute and punish their citizen for crimes commit- Secretary of State to deny extradition when motivation or circumstances. Under one
ted in another country. As a general rule, the he is persuaded that the requesting State is commonly-used standard, extradition for
United States has no such ability. Escobedo and seeking the person's extradition "for a polit- such offenses has been barred when the
Castillo V. ?brach, 623 F.24 1098 (5th CLr. 1980); 6 ical offense or an offense of a political char- state from which extradition is sought de-
Whiteman, nisra note 3. at 876-875.
"Executive Order 11517, 35 red Flee. 4937 (1970). acter, or for the purpose of prosecuting or termines that the political content of the
reprinted in 1970 U.S. Code Cong. & Ad. News, at punishing the person for his political opin- act outweighs the harm that may have been
6332. ions." Second, as introduced, S. 1940 made it done in committing the offense. This atti-
oil See, e.g.. Extradition Act, R.S.C. 1952, c. 322 explicit in the statute that this determina- tude, according to a leading expert, resulted
(Canada); s. 24, Ley de ExtracUcion (Dec. 29, 1975), tion would not be subject to judicial review, from the "growth and evolution of political
Art. 11 (Mexico). (Senate Report.No. 97-331, p. 3)" institutions towards the liberal state
"United States V. Rowbotham, 430 F. Supp. 1254
- (D. Mess. 1977); United States v. Dolack 484 F.2d On February 3, 1982, Senator Percy wrote (which) together with the rise of individual-
527 (7th Cir. 1973). It is well to remember that both to Senator Thurmond and requested that S. ism sparked the concern for the political of-
the prosecution and the defense suffer when a 1940 be referred sequentially to the Com- fender, especially where he had escaped
criminal trial is delayed too long. Indeed, as the mittee on Foreign Relations for a reason- from a nation with more 'benighted' views
Court of Appeals trenchantly remarked in United able period of time. The request for sequen- of government." 1
States v. hank 487 F. 2,:i 418, 418 a,th cir. 1972); tial referral was based In large part on the Another expert has characterized the ex-
". . . all practiced trial lawyers are well aware that Committee's interest in those aspects of S. ception in the following terms:
attrition from . . . delay is more damaging to the
prosecutor's case than to that of the defense. This 1940 concerning the "political offense ex- "The political offense exception is the em-
will be so as long as the prosecution has the burden ception"-a standard provision in U.S. bi- bodiment of the notion that political dis-
of proof." lateral extradition treaties. The request for senters or rebels ought not be turned over
"Cf. 6 Whiteman, supra note 3, at 1052-1053. sequential referral was also prompted by for trial and punishment to the very govern-
"For example, Art. 21, Extradition Treaty, the longstanding interest of the Committee ment which they have opposed. This con-
United States-Mexico, signed May 4. 1978, -, U.S.T. in matters concerning international extradi- cept is now well accepted in customary in-
-, T.I.A.S. 9656 (entered into force January 25, tion stemming from the Committee's pri- ternational law. . . It is in keeping with the
1980) requires that the requested state bear all of
the expenses of extradition except those incurred mary jurisdiction over all treaties, including very purpose of the political offense excep-
for the translation of the documents or the trans- those relating to extradition. For example, tion that its definition be a flexible one,
portation of the fugitive. Extradition treaties are -during the first session of the 97th Con- which may encompass and protect a broad
considered self-executing. Bassiotud. International gress, the Committee on Foreign Relations range of legitimate political dissent. A broad
Extradition and World Public Order 30-31 (1976). considered and favorably reported two ex- definition need not be a mechanistic or all-
and supersede the provisions of prior Inconsistent tradition treaties: a U.S.-Colombian agree- inclusive one. The word 'political' may have
federal legislation. Restatement (Second) of For. ment and a U.S.-Netherlands agreement.
eign Relations Law of the United States, 5 141. Six extradition treaties were approved by
Comment (b) at 433 (1965). Therefore, whether 18. Epps, Valerie, "The Validity of the Political Of-
U.S.C. 3195 or a differing treaty provision is appli- the Committee during the 96th Congress. fender Exception in Anglo-American Judson-
cable in a particular extradition case depends on On April 15, the Committee on the Judici- dance." Harvard International Law Journal,
when the treaty entered into force. ary reported S. 1940 with Committee Winter 1979, pp. 69-88.
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January 27, 1988 CONGRESSIONAL RECORD ? SENATE S 417
different meanings in different contexts,
and the United States is under no legal or
moral obligation to shelter a fugitive from
extradition sharply because he claims apolit-
ical motive for his crime. (Professor Steven
Lubet testifying before the House Commit-
tee on the Judiciary, Subcommittee on
Crime, February 3, 1982).*
While the assertion of a "pure" political
offense is seldom at issue in extradition pro-
ceedings. claims of "relative" political of-
fenses have been litigated in a number of
extradition cases and have generated consid-
erable academic debate about its present
day utility. During the past decade, particu-
lar concern has been raised over the me of
the exception to bar extradition for acts of
international terrorism which ostensibly are
associated with political activity or protest.
For example, in two recent cases, by con-
vincing the courts to invoke the political of-
fense exception, members of the Provisional
Irish Republican Army (PIRA) successfully
resisted extradition to the United Kingdom
for violent crimes that they were alleged to
ha,ve committed against a British soldier
and government property.' However, in an-
other case involving a PLO member, Zyad
Abu Eain, who was sought by the Israeli
government for his participation in a bomb-
ing randomly directed at civilians in a mar-
ketplace in the country, the court refused to
finely the political offense exception.' Sub-
sequently, Abu Eain was extradited to Israel
to stand trial.
The PIRA cases and the case of Abu Eain
have raised serious questions about the abil-
ity of the courts to interpret consistently
the political offense exception. Both the
Carter and Reagan Administrations have
argued that because of loose and inconsist-
ent application of the exception, the United
States may be viewed by international ter-
rorists as a potential safehaven where their
crimes may go wenanished if presented in
the guise of justifiable political actions.
Consequently, both Administrations have
urged successively that clear guidelines be
established to guide the determination of
political offense exceptions. It has also been
suggested, as reflected in the version of 8.
11148 reported by the Judiciary Committee
that the courts are Moquipped to decide
Issues that turn so betray on questions of
U.S. foreign polio, and that, consequently,
the Secretary of State should be vested with
the sole authority te determine the applica-
tion of the exception subject to limited judi-
cial review.
? ? ? ? ?
Sacrion-sySzericur ANALYSES or Tams
Paovnuons or S. IMO AS RiPORTED SY TIM
COMMITS= on rice Josicasite, PROPOS= To
SE Amoroso wr ens Colour= on FOREIGN
RELATIONS
The major provision of S. 1948, as report-
ed by the Committee an the Judiciary, and
their comparison to present federal law are
set forth in Senate Report No, 87-331. The
Report of the Committee on Foreign Rela-
tions relates solely to a discussion and anal-
yses of the amendments set forth above as
reported on May 19 by the Committee on
Foreign Relations.
Section 3194(a), as reported by the Com-
mittee on the Judiciary, provides that the
courts do not have jurisdiction to determine
*Professor Steven Lubet testifying before the
Rouse Committee an the Judiciary. Subcommittee
on Crime, February 3. 1982.
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S 418 CONGRESSIONAL RECORD ? SENATE January 27, 1983
an otherwise criminal act. For the court to partment of State, including the Bureau of "5 3191. Extradition authority in general
make such a determination the test should Human Rights and Humanitarian Affairs. ,,The United States may extradite a
be focused upon the individual and whether Requiring the Secretary to consult with person to a foreign state pursuant to this
the offense for which he is sought was a that Bureau is intended to ensure that the chapter only if?
consequence of the violation of his interna- Secretary is fully advised on the political ..(a) there is a treaty concerning extradi-
tionally recognized civil or political rights and social conditions in the foreign state at tion between the United States and the for-
by the state requesting extradition. Acts of issue. It also reinforces the Committee's eign state; and
indiscriminate or excessive violence or acts belief that determinations by the Secretary "(b) the foreign state requests extradition
of deliberate brutality would presumably of State concerning foreign state motivation within the terms of the applicable treaty.
never fall within the exception, in requesting extradition, as well as any de-
In short, while the occasions for recogniz? terminations involving humanitarian consid- '13192. Initial procedure
ing the political offense exception will nec- erations, should build upon existing princi- "(a) IN GENERAL.?The Attorney General
essarily be few and far between, the Com- ples governing asylum requests. As such may file a complaint charging that a person
mittee believes that it should continue to be they should be executive determinations is extraditable. The Attorney General shall
within the authority of U.S. courts to deter- and not judicial findings. Presently, the file the complaint in the United States dis-
mine that the exception should apply, sub- Bureau of Human Rights and Humanitarian trict court?
ject to the procedural innovations and ex- Affairs advises the Secretary of State and "(1) for the district in which the person
elusions introduced in this legislation. the Department of Justice on asylum issues. may be found; or
The belief that such findings are expected The proposed amendment is, therefore, in "(2) for the District of Columbia, if the
to be rare is further reinforced by the keeping with the Bureau's current role in Attorney General does not know where the
amendment proposed by the Foreign Rela- such matters, person may be found
tions Committee in section 3194(e) provid- The remaining amendments proposed by "(b) COMPLAINT.?The complaint shall be
Ing that the person claiming application of the Committee on Foreign Relations and made under oath or affirmation, and shall
the exception must establish by clear and contained in section 3196 of S. 1940 as re- specify the offense for which extradition is
convincing evidence that any offense for ported by the Committee on the Judiciary sought. The complaint?
which such person may be subject to pros- are technical revisions setting forth the au-
ecution or punishment if extradited is a po- "(1) shall be accompanied by a copy of the
thority of the Secretary of State in matters
necessarily litical offense. This ily includes of- request for extradition and by the evidence
relating to international extradition in ac- and documents required by the applicable
fenses that may not be subject to the ex- pittance with the amendments proposed by treaty; or
traordinary circumstances standard estab- the Committee on Foreign Relations in sec-
lished in section 3194(e)(2). Shifting the "(2) shall be accompanied by the materi-
tion 3194 supra.
burden of the proof to the person seeking als specified in paragraph (1)?
application of the political offense excep- ? ? "(A) shall contain?
tion reinforces the Committee's belief that S. 220 "(i) information sufficient to identify the
its legitimate application should be infre- Be it enacted by the Senate and House of person sought;
quent and also in accords with the guide- Representatives of the United States of "(ii) a statement of the essential facts con-
lines established in section 3194(e) (1) and America in Congress assembled, That this stituting the offense that the person is be-
(2). Act may be cited as the "Extradition Act of lieved to have committed, or a statement
Section 3194(g) (1) and (g) (2) restrict the 1982". that an arrest warrant for the person is out-
jurisdiction of the courts with respect to SEC. 2. Chapter 209 of title 18, United standing in the foreign state; and
questions that may turn largely on the con- States Code, is amended as follows: "(iii) a description of the circumstances
duct of U.S. foreign policy, thus falling (a) Section 3181 is deleted. that justify the person's arrest; or
within the domain of the executive branch. (b) Section 3182 is redesignated as section "(B) shall contain such other information
Section 3194(g)(1) clearly establishes the "3181." as is required by the applicable treaty;
sole authority of the Secretary of State to (c) Section 3183 is redesignated as section and shall be supplemented before the extra-
deny extradition if a foreign state is seeking
"3182" and is amended by striking out "or dition hearing by the materials specified in
the person's return for the purposes of the first sen- para
pros-
ecuting or punishing the person because of the Panama Canal Zone" in graph (1).
tence. "(c) Amu= on SummoNs.?Upon receipt of
his or her political opinions, race, religion,
or nationality and if the applicable extradi- (d) A new section 3183 is added as follows: a complaint, the court shall issue a warrant
for the arrest of the person sought, or, if
tion agreement provides the Secretary with '13183. Payment of fees and costs
the Attorney General so requests, a sum-
the authority to deny extradition for such "All costs or expenses incurred in any in- mons to the person to appear at an extradi-
reasons. This authority would, when appli- terstate rendition proceeding and appre- tion hearing. The warrant or summons shall
cable, follow the rule of non-inquiry where- hending, securing, and transmitting a fugi- be executed in the manner prescribed by
by the courts refrain from making findings tive shall be paid by the demanding authori- rule 4(d) of the Federal Rules of Criminal
on issues largely concerned with the inter- ty.". Procedure. A person arrested pursuant to
nal political or social circumstances in a for- (e) Sections 3184 through 3195. are de- this section shall be taken without unneces-
eign state. The Secretary of State, however, leted. sary delay before the nearest available court
is considered uniquely qualified to make (f) The chapter heading and section anal- for an extradition hearing.
such inquiries as this practice is already a ysis are amended to read as follows: "(d) DETENTION OR RELEASE OF ARIII'STED
significant aspect of his foreign policymak-
ing responsibilities. Section 3194(g)(2) pro- "CHAPTER 209?INTERSTATE PERSON.?
vides the Secretary with the sole authority RENDITION "(1) The court shall order that a pt-rson
to determine if the person's extradition is "3181. Fugitives from State or Territory to arrested under this section be held in o ffi-
compatible with humanitarian consider- State, District, or Territory. cial detention pending the extradition hear-
incompatible
such as the age or infirmity of the "3182. Fugitives from State, Territory or irg unless the person establishes to the sat
person being sought as well as the propor- Possession into extraterritorial isfaction of the court that special cirrm-
n
tionality of the punishment that may be im- jurisdiction of the United stances require his release.
"(2) Unless otherwise provided by the ap-
posed in relation to the crime that may States.
have been committed. This authority may "3183. Payment of fees and costs.". plicable treaty, if a person is detained pur-
be exercised so long as the applicable extra-
dition agreement provides the Secretary SEC. 3. A new chapter 210 of title 18 of the which the complaibt is filed under subscc-
with the authority to deny extradition for United States Code is added as follows: tion (b)(2), and if, within sixty days of the
such reasons. Sections 3194(g)(1) and (g)(2) "CHAPTER 210?INTERNATIONAL person's arrest, the court has not received?
should in most cases provide the preferred ExTRADITION "(A) the evidence or documents required
procedure
I
basis for appropriate relief from extradition ?sec. by the applicable treaty: or
on grounds consistent with the traditions, ? "(B) notice that the evidence or docii-
3191. Extradition authority in general.
Depart-
heritage, and foreign policy principles of ments have been received by the Depart-
"3192. Initial .
this country. Further, the Committee on ment of State and will promptly be trans-
Waiver of extradition hearing
"3193. and
Foreign Relations considers it desirable to mitted to the court; the court may order
consent to removal.
provide for the authority established in sec- that the person be released from official de-
"3194. Extradition hearing-
tions 3194(g)(1) and (g)(2) in any future ex- h tention pending the extradition hearing.
tradition agreements to which the United "3195. Appeal. "(3) If the court orders the release of the
States may become a party. "3196. Surrender of a person to a foreign person pending the extradition hearing, it
Section 3194(g)(3) as proposed by the state. shall impose conditions of release that will
Committee on Foreign Relations requires "3197. Receipt of a person from a foreign reasonably assure the appearance of the
the Secretary of State to consult with the state. person as required and the safety' of any
appropriate Offices and Bureaus of the De- "3198. General provisions for chapter. other person and the community.
Approved For Release 2008/11/07: CIA-RDP95B00895R000200030008-3
Approved For Release 2008/11/07: CIA-RDP95B00895R000200030008-3
January 27, 1988 CONGRESSIONAL RECORD ? SENATE S 419
"93193. Waiver of estaaditlon hearing and eon- "(1) a deposition, warrant, or other docu- "(E) an offense that consists of the raanu-
sent to removal ment, or a cony thereof, is admissible as evi- facture, importation, distribution, or sale of
"(a) hiroasurra THE COURT or WAIVER AND deuce in the hearing if? narcotics or dangerous drugs;
Consairr.?A person against whom a coin- "(A) I t is authenticated in accordance with "