Reform of the extradition laws of the United States : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, Ninety-eighth Congress, first session, on H.R. 2643 ... April 28 and May 5, 1983 online

REFORM OF THE EXTRADITION LAWS
OF THE UNITED STATES



HEARINGS

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPEESENTATIVES

NINETY-EIGHTH CONGRESS
FIRST SESSION

ON

H.R. 2643

REFORM OF THE EXTRADITION LAWS OF THE UNITED STATES



APRIL 28 AND MAY 5, 1983



Serial No. 58




Printed for the use of the Committee on the Judiciary



REFORM OF THE EXTRADITION LAWS
OF THE UNITED STATES



HEARINGS

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPEESENTATIVES

NINETY-EIGHTH CONGRESS

FIRST SESSION

ON

H.R. 2643

REFORM OF THE EXTRADITION LAWS OF THE UNITED STATES



APRIL 28 AND MAY 5, 1983



Serial No. 58




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
30-993 WASHINGTON : 1984



COMMITTEE ON THE JUDICIARY



PETER W. RODINO, Jr.

JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, Jr., Michigan
JOHN F. SEIBERLING, Ohio
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
SAM B. HALL, Jr., Texas
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
HAROLD WASHINGTON, Illinois
BARNEY FRANK, Massachusetts
GEO. W. CROCKETT, Jr., Michigan
CHARLES E. SCHUMER, New York
BRUCE A. MORRISON, Connecticut
EDWARD F. FEIGHAN, Ohio
J. SMITH, Florida



LAWRENCE
HOWARD L.
FREDERICK



, New Jersey, Chairman

ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, Jr., New York
M. CALDWELL BUTLER, Virginia
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida
E. CLAY SHAW, Jr., Florida
GEORGE W. GEKAS, Pennsylvania
MICHAEL DeWINE, Ohio



BERMAN, California
C. BOUCHER, Virginia

Alan A. Parker, General Counsel

Garner J. Cline, Staff Director

Alan F. Coffey, Jr., Associate Counsel



lU

y



-21

C9



Subcommittee on Crime

WILLIAM J. HUGHES, New Jersey, Chairman
CHARLES E. SCHUMER, New York HAROLD S. SAWYER, Michigan

BRUCE A. MORRISON, Connecticut E. CLAY SHAW, Jr., Florida

EDWARD F. FEIGHAN, Ohio F. JAMES SENSENBRENNER, Jr.,

LAWRENCE J. SMITH, Florida Wisconsin

Hayden W. Gregory, Counsel

Virginia Sloan, Assistant Counsel

Charlene Vanlier, Associate Counsel



(II)



CONTENTS



Page

April 28, 1983 1

May 5, 1983 67

WITNESSES

Halperin, Morton, director, Center for National Security Studies 59

Helton, Arthur, director, political asylum project, Lawyers Committee for

International Human Rights 74

Letter from, dated May 23, 1983, to Hon. William J. Hughes 389

Letter from, dated September 28, 1983, to selected Members of Congress ... 401

Prepared statements 77

Lubet, Steven, professor of law. Northwestern University 87

Letter from, dated May 16, 1983, to Virginia Sloan 387

Letter from, dated August 23, 1983, to Virginia Sloan 399

Prepared statement 92

McGovern, Daniel W., Deputy Legal Adviser, Department of State 33

Prepared statement 39

Olsen, Roger, Deputy Assistant Attorney General, Criminal Division, Depart-
ment of Justice 33

Prepared statement 34

Palermo, Hon. Peter, magistrate. Southern District of Florida 68

Letter from, dated May 16, 1983, to Hon. William J. Hughes 386

Solf, Waldemar A., adjunct professor of law, Washington College of Law,

American University 155

Prepared statement 160

ADDITIONAL MATERIAL

Bassiouni, M. Cherif, professor of law, DePaul University, letter from, dated

July 18, 1983, to Virginia E. Sloan 185

Goodman, William M., attorney, Topel & Goodman:

Letter from, dated May 2, 1983, to Hon. William J. Hughes 382

Letter from, dated May 31, 1983, to Hon. William J. Hughes 394

Prepared statement, summary 395

Granting of bail to fugitives arrested in the United States for extradition to

foreign countries: 1980-82 (table) 42

Hughes, Hon. William J., a U.S. Representative in Congress from the State of

New Jersey, prepared statement 31

Jabara, Abdeen M., attorney, Jabara, Fadel, Saleh & Abrahim, letter from,

dated May 25, 1983, to Hon. William J. Hughes 391

Neukom, William H., secretary, American Bar Association, letter from, date

August 17, 1983, to Hon. Peter W. Rodino, Jr 396

"The 1983 Extradition Act: Legislative History and Critical Appraisal" (arti-
cle), by M. Cherif Bassiouni 186

Textof H.R. 2643 2

Watkins, Ralph, legislative associate. Church of the Brethren, letter from,

dated August 19, 1983, to Dear Representative 398

(III)



REFORM OF THE EXTRADITION LAWS OF THE

UNITED STATES



THURSDAY, APRIL 28, 1983

House of Representatives,

Subcommittee on Crime
OF the Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to call, at 1:50 p.m., in room
2237, Rayburn House Office Building, Hon. William J. Hughes
(chairman of the subcommittee) presiding.

Present: Representatives Hughes, Smith, and Sawyer.

Staff present: Hayden W. Gregory, chief counsel; Virginia E.
Sloan, assistant counsel; and Charlene Vanlier, associate counsel.

Mr. Hughes. The Subcommittee on Crime will come to order.

Today the Subcommittee on Crime will hold its first hearing on
H.R. 2643, a bill to reform the extradition laws of the United
States. The bill is similar to the one I introduced in the last Con-
gress, along with my colleague, Hal Sawyer of Michigan, which was
reported by the full Judiciary Committee for consideration by the
full House.

Unfortunately, with the press of business during the postelection
session of the last Congress, the bill was not able to be considered
on the floor. We must, therefore, begin anew our efforts to modern-
ize the extradition laws.

I think it is universally agreed that these laws need to be mod-
ernized. H.R. 2643 represents the first comprehensive reform of the
extradition laws in over a century. It attempts to meet the concern
that our current laws are not sufficient to meet the challenges of
transnational crime, and that significant legal and practical prob-
lems exist under the current structure. H.R. 2643 is an attempt to
improve and modernize current law, while at the same time to
retain the basic structure of current law.

[The bill, H.R. 2643, follows:]



(1)



98th congress
1st Session



H. R. 2643



To amend title 18 of the United States Code with respect to extradition, and for

other purposes.



IN THE HOUSE OF REPRESENTATIVES

Apbil 20, 1983

Mr. Hughes (for himself and Mr. Sawyer) introduced the following bill; which
was referred to the Committee on the Judiciary



A BILL

To amend title 18 of the United States Code with respect 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 of the United States

5 Code is amended —

6 (1) by striking out section 3181 and inserting in

7 lieu thereof the following:



2

1 "§ 3181. Payment of fees and costs

2 "All costs or expenses incurred in any proceeding under

3 this chapter in apprehending, securing, and transmitting a

4 fugitive shall be paid by the demanding authority.";

5 (2) in section 3182, by adding at the end the fol-

6 lowing: "An agent appointed as provided in this sec-

7 tion who receives the fugitive into custody is empow-

8 ered to transport the fugitive to the State or Territory

9 from which the fugitive fled.";

10 (3) by striking out "or the Panama Canal Zone"

11 in the first sentence of section 3182;

12 (4) by striking out section 3184 and all that fol-

13 lows through section 3195; and

14 (5) so that the chapter heading and the table of

15 sections at the beginning of the chapter read as fol-

16 lows:

17 "CHAPTER 209— INTERSTATE RENDITION

"Sec.

"3181. PajTTient of fees and costs.

"3182. Fugitives from State or Territory to State, District or Territory.
"3183. Fugitives from State, Territory, or possession into extraterritorial jurisdic-
tion of the United States.".

18 Sec. 3. Title 18 of the United States Code is amended

19 by inserting after chapter 209 the following new chapter:

20 "CHAPTER 210— INTERNATIONAL EXTRADITION

"Sec.

"3191. General statement of requirements for extradition.

"3192. Complaint and preliminary proceedings.

"3193. Waiver of hearing.

"3194. Hearing and order.



"3195. Appeal from determination after hearing.

"3196. Surrender of a person to foreign state after hearing.

"3197. Cooperation with transit through United States for foreign extradition.

"3198. Receipt of a person from a foreign state.

"3199. Definitions and general provisions for chapter.

1 "§ 3191. General statement of requirements for extradition

2 "The United States may extradite a person to a foreign

3 state in accordance with this chapter only if —

4 "(1) there is an appHcable treaty concerning ex-

5 tradition between the United States and such foreign

6 state;

7 "(2) the foreign state requests extradition in ac-

8 cordance with the terms of that treaty; and

9 "(3) the appropriate court issues an order under

10 this chapter that such person is extraditable.

11 "§ 3192. Complaint and preliminary proceedings

12 "(a)(1) The United States district court for the district in

13 which the person sought to be extradited is found may issue

14 an order in accordance with this chapter that such person is

15 extraditable, upon a complaint filed by the Attorney General.

16 "(2) If the Attorney General has previously sought an

17 order that a person is extraditable under this chapter with

18 respect to a specific extradition request of a foreign state the

19 Attorney General may not file another complaint under this

20 section based upon the same factual allegations as a previous

21 complaint, unless the Attorney General shows good cause for

22 filing another complamt.



4

1 "(3) If extradition of an individual is requested by more

2 than one foreign state, whether for the same or different of-

3 fenses, the Secretary of State may in the discretion of the

4 Secretary of State determine which request to honor after

5 consideration of all relevant factors, including —

6 "(A) those set forth in an applicable treaty con-

7 ceming extradition;

8 "(B) the nationality of the iiidi\adual;

9 "(C) the state in which the offense is alleged to

10 have occurred; and

11 "(D) if different offenses are involved, which of-

12 fense is punishable by the most severe penalty, and if

13 the penalties are substantially equal the order in which

14 the requests were received.

15 "(b) A complaint under this section shall —

16 "(1) be made under oath or affirmation;

17 "(2) specify the offense for which extradition is

18 sought;

19 "(3) contain any matter not otherwise required by

20 this chapter but required by the applicable treaty con-

21 cerning extradition; and

22 "(4) either—

23 "(A) be accompanied by —

24 "(i) a copy of the request of the foreign

25 state for extradition; and



5

1 "(ii) the e\adence and documents re-

2 quired by the appHcable treaty concerning

3 extradition; or

4 "(B) contain—

5 "(i) information sufficient to identify the

6 person sought;

7 "(ii) a statement —

8 "(I) of the essential factual allega-

9 tions of conduct constituting the offense

10 that the person sought is believed to

11 have committed; or

12 "(TO that a judicial document

13 authorizing the arrest or detention of

14 such person on account of accusation or

15 conviction of a crime is outstanding in

16 the foreign state seeking extradition;

17 and

18 "(iii) a description of the circumstances

19 justifying such person's arrest.

20 "(c) The Attorney General may file a complaint under

21 this chapter in the United States District Court for the Dis-

22 trict of Columbia if the Attorney General does not know

23 where the person sought may be found. WTien the person is

24 found, the matter shall be transferred to the United States



6

1 district court to which the person arrested is taken under

2 subsection (d) of this section.

3 "(d)(1) Upon the fiUng of the complaint under this sec-

4 tion, the court shall issue a warrant for the arrest of the

5 person sought, or, if the Attorney General so requests, a

6 summons to such person to appear at an extradition hearing

7 under this chapter. The warrant or summons shall be execut-

8 ed and returned in the manner prescribed for the execution

9 and return of a warrant or summons, as the case may be,

10 under the Federal Rules of Criminal Procedure. A person

11 arrested under this section shall be taken without unneces-

12 sary delay before the nearest available United States district

13 court for further proceedings under this chapter,

14 "(2) During the first ten days following the arrest of a

15 person under this section, the court shall order such person

16 detained and not order release of such person under section

17 3199(c) of this title, pending the disposition of the complaint

18 under this chapter, unless the Government is ready to pro-

19 ceed under this chapter before the end of such ten-day period

20 or such person shows by the preponderance of the evidence

21 that if so released —

22 "(A) such person does not present a substantial

23 risk of flight;

24 "(B) such person does not present a danger to any

25 other person or the community; and



8



7

1 "(C) no relationship with a foreign state will be

2 jeopardized with respect to a treaty concerning extradi-

3 tion.

4 "(3) The ten-day period referred to m paragraph (2) of

5 this subsection may be extended for successive five-day peri-

6 ods upon the application of the Government and a showing ef

7 good cause.

8 "(e) The court shall order the release, pending the ex-

9 tradition hearing, of a person arrested under this section if

10 there has not been filed with the court before the end of sixty

11 days after the arrest of such person the evidence and docu-

12 ments required by the applicable treaty concerning extradi-

13 tion or notice that such evidence and documents have been

14 received by the Department of State and will promptly be

15 transmitted to the court. The court may extend such sixty-

16 day period for successive periods of fifteen days each upon a

17 showing of good cause by the Attorney General with respect

18 to each such extension. In any case, if the applicable treaty

19 concerning extradition requires such release before the end of

20 the period otherwise specified by this subsection, the court

21 shall order such release in accordance with such treaty.

22 "§ 3193. Waiver of hearing

23 "(a) A person against whom a complaint is filed under

24 this section may, with the consent of the Attorney General,

25 waive the requirements of this chapter for a hearing by in-



8

1 forming the court that such person consents to removal to the

2 foreign state requesting extradition. Such a waiver may not

3 be revoked unless the court determines that an extraordinary

4 change of circumstances warrants such revocation.

5 "(b) The court shall—

6 "(1) inform a person making a waiver under this

7 section of such person's right to representation by

8 counsel, including counsel appointed without cost to

9 such person if such person is financially unable to

10 obtain counsel; and

11 "(2) inquire of such person and determine whether

12 such waiver is —

13 "(A) voluntary and not the result of threat or

14 other improper inducement; and

15 "(B) given with full knowledge of its

16 legal consequences.

17 "(c) If the court determines the waiver is one described

18 in subsection (b)(2) (A) and (B) of this section, the court shall

19 order the person making such waiver extraditable and certify

20 a transcript of the court's proceeding in the matter to the

21 Secretary of State. The Attorney General shall notify the

22 foreign state requesting extradition of the order of extradition

23 and the time limitation under section 3196(c) of this title on

24 detention of the person sought. The Attorney General shall,

25 except as otherwise provided by this chapter, surrender the



10



9

1 person so ordered extraditable to the custody of an agent of

2 the foreign state requesting extradition.

3 "§ 3194. Hearing and order

4 "(a) The court shall, as soon as practicable after arrest

5 or summons of the person sought to be extradited, hold a

6 hearing to determine issues of law and fact with respect to a

7 complaint filed under section 3192 of this title unless such

8 hearing is waived under section 3193 of this title.

9 "(b)(1) At a hearing under this section, the person

10 sought to be extradited has the right —

11 "(A) to representation by counsel, including coun-

12 sel appointed without cost to such person if such

13 person is financially unable to obtain counsel;

14 "(B) to confront and cross-examine witnesses; and

15 "(C) to introduce evidence with respect to the

16 issues before the court.

17 "(2) The guilt or innocence of the person sought to be

18 extradited of the charges with respect to which extradition is

19 sought is not an issue before the court.

20 "(c) The court shall inform the person sought to be ex-

21 tradited of the purpose of the hearing and of the rights de-

22 scribed in subsection (b) of this section.

23 "(d)(1) Except as othervdse provided in this chapter, the

24 court shall order a person extraditable after a hearing under

25 this section if the court finds —



11



10

1 "(A) probable cause to believe that the person

2 before the court is the person sought;

3 "(B)(i) probable cause to believe that the person

4 before the court committed the offense for which such

5 person is sought; or

6 "(ii) the evidence presented is sufficient to support

7 extradition under the provisions of the applicable treaty

8 concerning extradition; and

9 "(C) the conduct upon which the request for ex-

10 tradition is based —

11 "(i) would be punishable under the laws of —

12 "(I) the United States;

13 "(11) the majority of the States of the

14 United States; or'

15 "(TTT) the State where the fugitive is

16 found; and

17 "(ii)(D at least one such offense is punishable

18 by a term of more than one year's imprisonment,

19 in the case of a person before the court who is

20 sought for trial; or

21 "(11) more than one hundred and eighty days

22 of imprisonment remain to be served with respect

23 to such offense, in the case of a person before the

24 court who is sought for imprisonment.



12



11

1 "(2) The court shall not order a person extraditable

2 after a hearing under this section if the court finds —

3 "(A) such person is charged with an offense with

4 respect to which the limitations provided by the appU-

5 cable treaty concerning extradition, or, if such treaty

6 provides none, the limitations of the law of the pros-

7 ecuting foreign state, on conamencement of prosecution

8 have run;

9 "" "(B) the applicable treaty concerning extradition

10 provides an applicable defense against extradition; or

11 "(C) the person has established by the preponder-

12 ance of the evidence that any offense for which such

13 person may be subject to prosecution or punishment if

14 extradited is a political offense.

15 "(e)(1)(A) Upon motion made by the person sought to be

16 extradited or the Attorney General, the United States district

17 court may order the determination of any issue under subsec-

18 tion (d)(2)(C) of this section by a judge of such court.

19 "(B) No issue under subsection (d)(2)(C) of this section

20 shall be determined by the court and no evidence shall be

21 received vdth respect to such issue unless and until the court

22 determines the person sought is otherwise extraditable.

23 "(2) For the purposes of this section, a poUtical offense

24 does not include —



13



12

1 "(A) an offense within the scope of the Conven-

2 tion for the Suppression of Unlawful Seizure of Air-

3 crait (signed at The Hague on December 16, 1970);

4 "(B) an offense within the scope of the Conven-

5 tion for the Suppression of Unlawful Acts Against the

6 Safety of Civil Aviation (signed at Montreal on Sep-

7 tember 23, 1971);

8 "(C) a serious offense involving an attack against

9 the life, physical integrity, or liberty of internationally

10 protected persons (as defined in section 1116 of this

11 title), including diplomatic agents;

12 "(D) an offense with respect to which a multilat-

13 eral treaty obligates the United States to either extra-

14 dite or prosecute a person accused of the offense;

15 "(E) an offense that consists of the manufacture,

16 importation, distribution, or sale of narcotics or danger-

17 ous drugs; or

18 "(F) an attempt or conspiracy to commit an of-

19 fense described in subparagraphs (A), through (E) of

20 this paragraph, or participation as an accomplice of a

21 person who commits, attempts, or conspires to commit

22 such an offense.

23 "(3) For the purposes of this section, a political offense,

24 except in extraordinary circumstances, does not include —



30-993 O— 84-



14



13

1 "(A) an offense that consists of homicide, assault

2 with intent to commit serious bodily injury, kidnaping,

3 the taking of a hostage, or a serious unlawful

4 detention;

5 "(B) an offense involving the use of a firearm (as

6 such term is defined in section 921 of this title) if such

7 use endangers a person other than the offender;

8 "(C) rape; or

9 "(D) an attempt or conspiracy to commit an of-

10 fense described in subparagraph (A), (B), or (C) of this

11 paragraph, or participation as an accomplice of a

12 person who commits, attempts, or conspires to commit

13 such an offense.

14 "(4)(A) Any issue as to whether the foreign state is

15 seeking extradition of a person for the purpose of prosecuting

16 or punishing the person because of such person's political

17 opinions, race, religion, or nationality shall be determined by

18 the Secretary of State in the discretion of the Secretary of

19 State.

20 "(B) Any issue as to whether the extradition of a person

21 to a foreign state would be incompatible with humanitarian

22 considerations shall be determined by the Secretary of State

23 in the discretion of the Secretary of State.

24 "(f) The court shall state the reasons for its findings as

25 to each charge or conviction, and certify —



15



14

1 "(1) a transcript of its proceedings in the case of

2 an order of extraditability; or

3 "(2) such report as the court considers appropriate

4 in other cases;

5 to the Secretary of State.

6 "(g)(1) Documents at a hearing under this section may

7 be authenticated as provided —

8 "(A) in an applicable treaty;

9 "(B) in the Federal Rules of E\ndence for pro-

10 ceedings to which such Rules apply; or

11 "(C) by the applicable law of the foreign state,

12 and authentication under this subparagraph may be es-

13 tablished conclusively by a showdng that —

14 "(i) a judge, magistrate, or other appropriate

15 officer of the foreign state has signed a certifica-

16 tion to that effect; and

17 "(ii) a diplomatic or consular officer of the

18 United States who is assigned or accredited to the

19 foreign state, or a diplomatic or consular officer of

20 the foreign state who is assigned or accredited to

21 the United States, has certified the signature and

22 position of the judge, magistrate, or other officer.

23 "(2) An affidavit by an appropriate official of the De-

24 partment of State is admissible in a hearing under this section



16



15

1 as evidence of the existence of a treaty relationship between

2 the United States and a foreign state.

3 "(3) The court may in making its decision consider hear-

4 say evidence and properly certified documents in a hearing

5 under this section.

6 "(h) If the applicable treaty relating to extradition re-

7 quires that such evidence be presented on behalf of the for-

8 eign state as would justify ordering a trial of the person if the

9 offense were committed in the United States, the requirement

10 is satisfied by evidence establishing probable cause to believe

11 that the offense was committed and that the person sought

12 committed that offense.

13 "(i) The court shall, upon petition after reasonable