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Articles - Law and treaties
Written by Howard Marks   
Sunday, 12 December 1999 00:00

Extradition, US drug policy and the erosion of individual liberties
By Howard Marks

The purpose of this monograph is to elucidate the meanings and mechanics of extradition.

Particular attention is drawn to extradition treaties with the United States and the manner by which that country circumvents, or ignores, well entrenched protections of the individual when drug offences are involved.

Extradition is the process by which one country, upon the request of another, surrenders a person for trial and/or punishment for a crime punishable by the laws of the requesting country. Any two countries may or may not possess a formal agreement between other relating extradition procedures.

In addition to the handful of countries which are not Members of the United Nations, there is a surprisingly large total of sixty three countries without bilateral extradition arrangements with the United States. Slightly over half of these nations (thirty two) are within the African continent. None is within the European or South American continents. Twenty are in the Orient and, with the exception of the USSR, China, and Mongolia, the remainder are small island nations scattered throughout the world.

There is a distinction between deportation and extradition. Deportation is a country’s unilateral action of expelling aliens who are neither native born nor in any other way naturalized citizens of that country and whose presence within that country is undesirable to the appropriate immigration authorities. A nation’s immigration laws usually require the alien to be deported to the country of which he or she is a citizen or to the country from which he or she arrived (see, for example, United States’ Immigration and Nationality Act, Section 243). There are no legal means to deport the alien to any country which happens to require the alien’s presence in the absence of an extradition agreement.

Extradition from a particular country is regulated within that country by the language of its extradition act. Extradition between countries may be regulated by diplomatic treaties or less formal conventions such as declarations of reciprocity. The purpose of extradition acts is to specify the extraditable crimes, clarify the procedures and safeguards used to extradite, and stipulate the relationship between the act and the international treaties. These relationships vary greatly among different nations. Some countries’ extradition acts mandate that extradition from its territory be in accordance with the provisions of a bilateral extradition treaty, while other countries’ extradition acts function entirely independently of treaties. There are no treaties, however, between countries that do not have extradition acts.

A country without an extradition treaty or convention, has no authority to surrender a fugitive criminal to a requesting foreign government, unless that foreign government is of a country to which the fugitive can rightfully be deported. In some circumstances, therefore, countries may, if they wish, grant perpetual asylum to the most heinous of criminals.

The existence of an extradition treaty obliges both parties to surrender an accused person in accordance with the provisions of the extradition act pertaining to the country in which the accused person is to be found. The terms of the treaty mandate the surrender, and the requested country has no discretion outside of that provided in the treaty which is itself based on the country’s extradition act.

Extradition to the United States in the absence of treaties

The lack of an extradition treaty has not hampered extradition to the United States in the case of drug offences. One country not maintaining any formalized extradition arrangements with the United States is the Republic of the Philippines.

Countries with no extradition treaties with the United States

Afghanistan

Gabon

Philippines

Algeria

Guinea

Qatar

Angola

Guinea Bissau

Rwanda

Bahrain

Indonesia

Samoa

Bangladesh

Iran

Sao Tome e Principe

Benin

Ivory Coast

Saudi Arabia

Bhutan

Jordan

Senegal

Botswana

Kuwait

Somalia

Brunei

Laos

Sudan

Burkina Faso

Lebanon

Syria

Burundi

Libya

Togo

Cambodia

Madagascar

Tunisia

Cameroon

Mali

Uganda

Cape Verde

Maldives

USSR

Central African Republic

Mauritania

United Arab Emirates

Chad

Mongolia

Vanuatu

China

Morocco

Vietnam

Comoros

Mozambique

Yemen

Djibouti

Nepal

Yemen South

Equatorial Guinea

Niger

Zaire

Ethiopia

Oman

Zimbabwe

The case of William Robb

During the summer of 1988, British subject William Robb was admitted to a Manila hospital to undergo a series of surgical operations. A few months earlier, he had been caught in heavy crossfire between rival political activists and had sustained multiple injuries. Halfway through his treatment, the Philippine Narcotic Command, under instructions from the United States Drug Enforcement Administration (DEA), entered the hospital, arrested Mr. Robb, and threw him into a Philippine dungeon. There were no charges outstanding against him in the Philippines, but an indictment, accusing him of performing an extremely minor role in a marijuana conspiracy, had been returned in that epicentre of drug hysteria - Miami, Florida.

Months later, after steadfastly refusing to allow Mr. Robb to receive any of his urgently needed medical treatment and finding themselves without any statutory authority to expel any non-American to the United States, the Philippine authorities became noticeably embarrassed as media interest was awakened to the situation. As pointed out above, the immigration authorities of any country can expel, if they wish, a non-resident alien back to his own country without the necessity of providing justification. Accordingly, Mr. Robb was placed on board a K.L.M. flight to Amsterdam and furnished with a ticket for the onward journey to London.

The flight made an intermediary stop at Dubai which also has no extradition arrangement with the United States. In case Mr. Robb had any bright ideas to disembark, a DEA agent, accompanied by a person in Dubai national dress, temporarily boarded the aeroplane and strongly advised him against taking such measures.

On arrival at Schipol Airport, Amsterdam, Mr. Robb was met by another DEA agent and members of the Dutch narcotic police who promptly locked him up in a local jail and prevented him from taking his onward flight to London.

The Netherlands does have an extradition agreement with the United States. Mr.Robb’s extradition was formally applied for, granted, and executed by United States Marshalls who took him from Amsterdam to Miami during the beginning of October, 1989.

Subsequent to his arrival in the United States, Mr. Robb tried, unsuccessfully, both to obtain a speedy trial and get his worsening injuries treated. Almost a year later, he was offered immediate release in exchange for a plea of guilty. Reluctantly, Mr. Robb accepted the offer, left the United States, and was immediately admitted into a European hospital for emergency surgery.

The case Of Dominique Orsini

Senegal is one of the thirty two African countries that do not have extradition treaties with the United States. During the 1970s, Dominique Orsini decided to take refuge there as the result of a United States indictment charging him with involvement in a drug conspiracy. On arrival at the capital city of Dakar, Mr. Orsini was met by DEA agent Tryal and a local United States embassy official who persuaded the Senegalese authorities to put Mr. Orsini in prison, wherein he remained for a few weeks while ‘arrangements’ were made between DEA agents and Senegalese officials. Eventually, he was escorted to Dakar airport and put aboard a flight to New York. The DEA escorts admitted that Mr.Orsini suffered injuries during the journey to the airport and further admitted that they had sedated him with an injection of Valium.

At about the same time that Mr. Orsini was subsequently arraigned at a New York federal court, a Newsweek article (August 16th, 1976) alluded to a host of instances of bribery of foreign officials by United States personnel in order to obtain physical custody of United States fugitives. A federal agent was quoted as saying:

"Clearly we have paid for some of these people. It might not have been a specific ‘quid pro quo’ but we would give x dollars or x cases of ammunition to officials who helped get these people on planes.

Dominique Orsini alleged that bribery had taken place in Dakar, and he attempted to subpoena the federal official that had been quoted in the Newsweek article. The presiding judge, Judge Bramwell, deemed Mr.Orsini’s request as irrelevant stating:

"Mere showing of bribery of foreign officials by American agents to obtain physical control and custody over a defendant in a foreign country is not sufficient to constitute a deprivation of due process of law."

When the Orsini case is contrasted with, for example, Brazil’s refusal to extradite train robber Ronald Biggs to the United Kingdom despite the existence of formalized extradition agreements between the two countries, one begins to wonder as to what precisely the rules and regulations governing surrender of fugitives may be.

Drug trafficking and extradition to the United States

Drug trafficking is a business which necessitates a high degree of international movement of commodities, money, and personnel. There is a significant likelihood that a fugitive from a country’s drug laws will be located outside that country. Consequently, the United States spearheaded ‘war on drugs’ has resulted in an increasing number of bilateral extradition treaties being newly created or radically reformed.

It is debatable as to when, precisely, the ‘war on drugs’ commenced. The ‘reefer madness’ of the 1930s and earlier alcohol prohibition are doubtless fundamental components; nevertheless, it is plausible to regard the present hysterical situation as having its origins, or at least its most recent ones, in the creation of the DEA at the beginning of the 1970s. The DEA determines which drugs should be illegal and which offenders to prosecute. Since the early 1970s, a total of thirty three countries have either established or updated bilateral extradition treaties with the United States. The newly formed treaties are primarily with Caribbean and Central American nations regarded by the DEA as either drug producing or drug transiting. The updating of existing bilateral extradition treaties tends to indicate contorted efforts of the United States to wriggle out of unappreciated limitations previously imposed and invariably entails an explicit statement that all drug offences are extraditable.

Even where treaties exist, abductions are carried out despite the ostensible respect accorded to treaty in United States legislation. Article IV, Clause 2 of the American Constitution states:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding". (Emphasis supplied)

Furthermore, the United States is a signatory to the United Nations Charter which, in Article 2, paragraph 2, clearly implies that removal of persons from a particular country, without adhering to that country’s extradition procedures, is a blatant violation of territorial sovereignty.

One would expect the above provisions to at least curb the ‘gung ho’ antics of DEA agents stationed overseas. This, however, is by no means the case. Alleged drug offenders have been forcibly abducted by DEA agents from: Bolivia, Brazil, Argentina, Colombia, Guatemala, Honduras, Uruguay, Mexico, Panama, Peru, Paraguay and Thailand.

An alleged drug offender, abducted from a foreign country and brought to a federal court within the United States, will be deemed as properly before the court.

An exception may only be granted when the authorities of that country formally object to that abduction after it has occurred. The reasoning behind this seems to be that an extradition treaty is not to be viewed as being contravened in the absence of an objection from a contracting party alleging that it has been so contravened. Generally, foreign officials are persuaded, one way or another, to participate in the accused’s abduction, thereby rendering any objection both unlikely and ineffectual.

The DEA backfires

There appears to be only one example of E country objecting to an abduction on its soil by DEA agents. This was made by Mexico in response to the kidnapping of Dr. Alvarez Machain during 1990. Dr. Machain was allegedly involved in the murder of DEA agent Enrico Camarena. This abduction proved counterproductive to the DEA as the Mexican authorities had already agreed to extradite Dr. Machain through the conventional extradition procedures pursuant to the United States/Mexico treaty. In the circumstances, the Californian federal court was obliged to divest jurisdiction over Dr. Machain in order to preserve United States/Mexican relations, and the DEA may have lost its man. The prosecution, of course, appealed against the court’s decision, and, at the time of writing, Dr. Machain is still in custody awaiting the outcome of this appeal. (United States v. Caro-Quintero.)

Bending the Constitution

The abduction by DEA agents from countries maintaining extradition treaties with the United States, with little in the way of objection, has become so commonplace that every court upholds the correctness of the abducted person’s arraignment before it by appealing to what is known as the ‘Ker-Frisbie’ doctrine which states:

"Forceable abduction is not so egregious a Constitutional violation so as to require dismissal of the prosecution." (Ker v. Illinois and Frisbie v. Collins)

Acknowledgement has been made to a very narrow exception to this doctrine which obtains only when the method of abduction involves:

"Acts of tortures or other shocking governmental conduct sufficient to convert an abduction which is simply illegal into one which sinks to violation of due process." (United States v. Lujan)

If this occurs, the court is again obliged to divest itself of jurisdiction over the accused and set him or her free. The following case, however, shows how difficult it is to establish the ‘shocking’ nature of government conduct.

The case of Francisco Toscanino Francisco Toscanino was tricked by Uruguayan officials, acting under the instructions of DEA agents, into leaving his Montevideo home. He was knocked unconscious, gagged and bound, and bundled onto the back seat of a car. He was then taken to the Brazilian border where he was met by Brazilian officials, again under DEA instructions, who took him into their physical custody. Denied any food or water, Mr. Toscanino was brought to the capital, Brasilia, where he was incessantly tortured and interrogated for seventeen days. A DEA agent was present throughout and, with the full knowledge of the United States prosecuting attorney, participated in the interrogation. The only form of nourishment administered to Mr. Toscanino was given intravenously and was barely sufficient to sustain life. He was deprived of sleep for days at a time. When incapable of standing after being forced to walk up and down a hallway for eight hours at a time, he was kicked and beaten. When refusing to answer questions, his fingers were pinched with metal pliers, alcohol was flushed into his eyes and nose, and other fluids were forced up his anal passage. DEA agents themselves attached electrodes to Mr. Toscanino’s earlobes, toes, and genitals. (United States v. Toscanino)

The judicial conscience of the New York court was not shocked by the above account, maintaining that the DEA agents did not actively take part in the barbaric proceedings described therein. Accordingly, it did not divest itself of jurisdiction over Mr. Toscanino.

In a more recent case, that of Raul Perez Degollado in 1988, a similar degree of torture was applied to the defendant. Again the court held that the DEA agents ‘merely witnessed’ rather than participated in the torture.

Political responses and the Mansfield Amendment

The foreign participation of DEA agents in arrests, abductions, interrogations, and witnessings of torture at one time caused concern in political circles. Politicians were apprehensive of the consequences of growing United States involvement in other countries’ domestic relations. As United States Senator Mansfield put it:

"Before I go any further, Mr. President, let me express the general concern that I have about this type of bilateral assistance. It is the type of assistance that inevitably draws us deeper and deeper into the internal affairs of another country. (121 Congressional Record, 38994 (1975))

This concern eventually resulted in the enactment of what has come to be known as the ‘Mansfield Amendment’:

"No officer or employee of the United States may directly effect an arrest in any country as part of any foreign police action with respect to narcotic control efforts, notwithstanding any other provision of law." (22 United States Code 2291 © (1))

"No officer or employee of the United States may interrogate or be present during the interrogation of any United States person arrested in any foreign country with respect to narcotics control efforts without the written consent of such person." (22 United States Code 2291 © (5) )

The 1978 Report of the Senate Foreign Relations Committee explained the purpose of the above ‘interrogation clause’ by stating that:

"The Committee feels that the Drug Enforcement Administration’s primary emphasis overseas should be on intelligence gathering and analysis. " (Senate Reporter No. 841, 96th Congress, Second Session 13)

Sadly, the Mansfield Amendment turned out to be no more than lip service of the most hypocritical and ineffectual kind.

It has been, and is being, totally ignored by the DEA. In the previously mentioned case of Raul Perez Degollado, DEA agents participated in his Mexican arrest. There is also the case of marijuana smuggler Angel John Sabaneh, whose arrest in Guatemala was directly effected by DEA agents during 1988.

The reason that the Mansfield Amendment is completely ignored is that it neither prescribes penalties against those who violate it nor allows a personal right of action by those aggrieved by its infringement. It is challenging to conjecture as to what its purpose could possibly be.

Protections of the individual and their erosion

Despite the foregoing catalogue of abductions and other lawbreaking activities of DEA agents stationed abroad, most foreign located fugitives from United States justice are brought to a federal court through the use (but often the misuse) of extradition procedures.

An extradition treaty will specify sets of conditions which discharge the requested country from the obligation of surrendering the fugitive. As each condition is generally embodied in the extradition act of one or both, of the countries concerned the conditions are often referred to as ‘protections’ of the individual whose extradition has been sought. A few of these ‘protections’ are important rights of the accused while he or she maintains a physical presence within the requested country These protections are discussed below.

Nationality

Some countries statutorily forbid themselves from extraditing their own nationals, spouses of nationals, or parents of nationals. Most treaties, however, simply modify the general surrender obligation to one of discretionary surrender in the case of accused persons falling into the above categories. Brazil is an example of a country which refuses to extradite a spouse of one of its nationals, whereas Spain, and some other countries, will exercise its discretion in extraditing its citizens.

Extradition laws of some countries are entirely independent of nationality status, such as those of Great Britain.

Political Offense

If the extradition request is based on an arrest warrant for a purely political offense, then surrender of the accused is almost invariably forbidden. Interesting cases exist which attempt to establish a line of demarcation between politically motivated criminal offences and bona fide purely political ones. Discussions of these, however, are out of place here. Suffice to say that no strategy relying on the political offense exception has been successful in preventing the extradition of anyone accused by the United States of committing a drug offense.

Principle of Dual Criminality

This protection limits extradition to those crimes which are punishable by the laws of both of the contracting parties. lt is generally adhered to except in the case of drug offences charged by the United States.

Many countries do not have a conspiracy law; many more have no money laundering statutes. No country other than the United States has laws remotely akin to ‘racketeering’ or ‘operating a continuing criminal enterprise’. Nevertheless, if any charge based on the violation of these statutes makes the merest mention of the word ‘drugs’, the offense immediately becomes an extraditable crime.

Double Jeopardy

The protection against double jeopardy prohibits the granting of extradition when the person whose surrender is sought has been tied and discharged, or punished, for the offense for which his or her extradition has been requested. This protection is a fundamental principle of all countries with a well developed legal system.

Statutes of Limitation

This protection prohibits the granting of extradition when the prosecution, or the enforcement of the penalty for the offense, has become barred by lapse of time according to the laws of either of the contracting parties. Some countries, for example Great Britain, do not have statutes of limitation of any kind.

Double jeopardy and the statutes of limitation ceased to protect individuals when the United States decided to target drug offenders with its formidable RICO ,: (Racketeering Influenced and Corrupt Organizations) statute. It is a grotesquely complicated piece of legislation, but the relevant effect, simply put, is that a RICO drug violation creates an entirely new drug offense from the mere commission of two or more previous drug offences within a ten year period. This is to say: one could be convicted of a particular drug offense, punished for it, released, convicted of another drug offense occurring after release, punished for that offense, released, and then further charged with having committed these two particular drug offences within a ten year period. Conviction of this RICO offense would make one liable to a further twenty years imprisonment. A more blatant example of pure sentence enhancement achieved by violating traditional double jeopardy and statutes of limitation protections is difficult to conceive.

Not surprisingly, these consequences are achieved by counter intuitive definitions of words like ‘enterprise’, ‘pattern’, and racketeering. Unfortunately, a full discussion of both RICO and its equally objectionable sister statute ‘Continuing Criminal Enterprise’ would be too distracting from the main theme of extradition.

Countries to whom the United States has made extradition requests for RICO offences make not the slightest attempt to determine whether or not the tacit acceptance of these as extraditable crimes contravenes their own legislative principles. The extradition judges seem content to naively reason that as the accused has not been previously charged with RICO, there is no double jeopardy; and as the most recent date mentioned in the RICO charge is in the not too distant past, there is no statute of limitations problem.

Jurisdictional Priority

This allows the requested country to use its discretion in cases where the accused may either (a) be the subject of an extradition request from more than one country, or (b) be prosecutable for the identical conduct by a statute embodied in its own legislation.

In (a), the criteria used are the timing of the extradition request, the nationality of the accused, and the relative seriousness of the offences on which the different extradition requests are based. Generally, drug smuggling to the United States is regarded as the most serious of all offences, and this usually takes top priority. There was, however, a notable departure from this ranking of priorities in the case of Medellin Cartel leader, Jorge Luis Ochoa, whom Spain extradited to his native Colombia rather than to the United States.

In (b), conduct simultaneously violating the legislation of both contracting parties invariably used to be prosecuted in the requested country which, of course, would be the first country to maintain physical custody of the alleged offender. Lately, this has given way to the requested country prosecuting such conduct only if its authorities were the first to initiate investigatory proceedings. If the United States is the requesting country, however, even this option is not taken, and the accused is invariably extradited to the United States.

Prima Facie Case Requirement

Extradition treaties may insist on the requesting country providing enough evidence to warrant trial had the alleged offense been committed within the requested country’s jurisdiction. Treaties with Great Britain are examples of this. Alternatively, the treaty may simply grant either of the contracting countries the option of requiring such prima facie evidence if it wishes to, or if its own extradition act demands it. Treaties with Spain exemplify this type. The accused does not have the right to present facts which may conradict the prima facie evidence against him or her, although in some cases he or she may be allowed to explain it.

Principle of Speciality

This protection is designed to limit prosecutions in the requesting country, after extradition, specifically to those for which extradition was officially requested and granted (unless, of course, the extraditee commits further offences after his arrival in the requesting country). A typical formulation of this principle is:

"No person surrendered by either of the Contracting Countries to the other shall be prosecuted or punished for any offense committed before the demand for extradition, other than that for which the extradition is granted, unless he expressly consents to it in open Court, which consent shall be entered on the record, or unless, having been at liberty during one month after his final lease to leave the territory of the Country making the demand, he has failed to make use of such liberty." (United States - Switzerland Treaty on Extradition)

Again, the United States has an atrocious record of violating this principle with literally scores of instances of it being flouted and flagrantly contravened. One would have thought that by affirmatively undertaking extradition proceedings and limiting the scope of prosecution by the requesting country, the requested country was implicitly protesting prosecution on any bases not specified by the particular extradition request. One would have further reasoned that this implicit protest would furnish the individual with the requested country’s rights and standing in that regard. The United States, however, takes the position that only when the requested country, which may well be totally unaware of particular post-extradition proceedings, specifically objects to newly preferred charges, does the principle of speciality apply. If the requested country does not object, then it will be deemed to have waived its right to do so; and, according to the United States’ Interpretation, any violation of international law is thereby redeemed resulting in the loss of the individual’s standing to object on this basis. Contorted reasoning such as this is typical of federal judgements.

Maximum Imposable Sentence

Many countries’ extradition laws mandate a maximum sentence that the requesting country may impose in the event of the accused’s conviction. This may be the maximum sentence which the requested country could have imposed had the accused been convicted under its own judicial system for an equivalent offense. More often it is simply the maximum sentence that the requested country may impose for any offense, no matter how serious. In Spain, for example, the maximum sentence for any offense is thirty years, which normally results in ten to fifteen years of actual incarceration depending on institutional conduct. Spain, therefore, routinely imposes a maximum of thirty years on any sentence given to a person who has been extradited from its soil and convicted in the requesting country. Many other countries adopt identical practices.

The United States regularly sentences drug offenders, extradited or not, to sentences in excess of thirty years but pays lip service to the requested country’s sentence limitation by restricting the actual time spent incarcerated to thirty years. No matter how adeptly the wording of this particular extradition safeguard can be juggled around to permit this interpretation, the requested country’s intention is obvious.

Conclusion

Rational explanations of the philosophy of the United States’ drug policies have eluded all those in favour of present credos and many of those against. Explanations of other countries’ acquiescence to the United States’ judicial colonialism in the realm of drug offences, however, may well be found by a reading of its "Foreign Relations and Intercourse" (United States Code, Title 22) particularly Section 2291, "International Narcotics Control", which outlines some of the regulations and procedures governing the disbursement of ‘United States Assistance’ to various foreign countries. To determine a country’s suitability for receiving such generosity, annual reports are prepared, which include:

"A discussion of the extent to which such country has cooperated with the United States narcotic control efforts through the extradition or prosecution of drug traffickers and where appropriate a description of the status of negotiations with such country to negotiate a new or updated extradition treaty relating to narcotics offences." (22 United States Code 2291 (e) (2) (D)) .

United States Assistance includes:

(1) Sales, credits, and guarantees under the Arms Export Control Act.

(2) Sales and donations under the Agricultural Trade Development and Assistance Act.

(3) Other financing programs of the Commodity Credit Corporation for export sales of non food commodities.

(4) Financing under the Export-Import Act. (22 United States Code 2291 (i) (4)0

Once certified as eligible to receive ‘United States Assistance’, the country becomes subjected to further annual scrutiny:

"The President shall consider the following

(I) Has that government made necessary changes in legal codes in order to enable law enforcement to move effectively against narcotics traffickers such as new conspiracy laws and new asset seizure laws? (J) Has that government expeditiously processed United States extradition requests relating to narcotics trafficking? (22 United States Code 22910 (3))

Individual bribery of individuals seems to have been replaced by the institutional bribery of nations.

We hear a great deal these days of the ‘new world order’ threatened by, and presumably intended to be headed by, President George Bush - his world and he will give the orders.

It is unclear whether or not other countries want the United States to dictate to them their domestic drug policies, instruct which laws should be enacted, and thrust the services of the DEA upon them for enforcement purposes. This, however, is clearly the current trend.

EXTRADITION, my own case

Howard Marks was arrested in Spain in 1988 for trafficking in marijuana. He was extradited to the USA for trial, convicted and is currently serving 25 years in Indiana State Penitentiary

During July of 1988, I, my wife, and eight codefendants were apprehended in seven different countries pursuant to extradition requests from the United States. The countries were The Philippines, Spain, The Netherlands, Great Britain, Pakistan, Thailand, and Canada.

The Philippines

William Robb was the co-defendant arrested in the Philippines, and his case has been described in the preceding pages.

Spain

Spain was the country that initiated the investigation and consulted a DEA agent stationed in Madrid to assist Spanish police officers attempting to translate telephone conversations taking place in English.

Spain declined to assert its option of jurisdictional priority despite the fact that virtually all the alleged criminal conduct of the four people arrested took place within its territory.

Spain ignored the principle of dual criminality. Spain has no conspiracy statutes, no money laundering laws, and its legal code does not include racketeering.

Nevertheless, it saw fit to extradite people for precisely those offences. Gerard Lynch, a professor of law at Columbia University in New York, offered to give expert testimony at the Madrid extradition court so that the relationship between racketeering and safeguards such as double jeopardy could be understood. The court prohibited him from testifying.

Spain refused to examine prima facie evidence to determine whether or not it met the standard set under Spanish law.

Spain refused to allow the extradition decision to be applied to the Spanish Supreme Court.

The Netherlands

The Netherlands declined to assert jurisdictional priority over alleged criminal conduct occurring within its own territory and which had previously been investigated by the Dutch narcotics police.

The Netherlands accepted clearly self-contradictory reports as being sufficient to establish the required prima facie evidence.

Great Britain

Great Britain declined to assert jurisdictional priority over alleged criminal conduct occurring in London by a British citizen. This conduct has been observed and documented by Her Majesty’s Customs and Excise before the DEA took an interest in the case.

Pakistan

Pakistan contravened every one of its constitutional protections when it proceeded to extradite its own national. DEA agents themselves have admitted that this extradition would not have occurred unless Ms Bhutto was anxious to establish a firm rapport with the Bush administration. United States financial assistance to Pakistan was substantially increased at the same time (22 United States Code 2375).

Thailand

At the time of writing, Thailand has just extradited the British subject its authorities arrested pursuant to the United States extradition request. Details of his case are not yet available.

Canada

Canada adamantly refused to extradite the co-defendant its authorities apprehended on the basis of the principles of prima facie evidence and dual criminality. On release the defendant, a British subject, flew to Amsterdam where he was promptly arrested by Dutch police pursuant to the same extradition request. He is not optimistic.

TABLE OF CASES

Cases discussed in the text

United states v Orsini. Fed Supp Vol 424 p.229 1976

Un,ted States v. Caro-Qu­ntero Fed Supp Vol 745 p.613 lggo (Dr.Alvarez Machain)

United states v Toscanino Fed 2nd Rep Vol 55 p.267 ts74 United States v Dego,lado Fed supp Vol 696 p 1136 t988 United states v Zabaneh Fed 2nd Rep Vol 837 p.1249 1988

Cases involving abductions from treaty bearing nations

United States v Lopez Fed 2nd Rep Vol s42 p.283 1976 (Dominican Republi United States v. Lara Fed 2nd Rep Vol 539 p.495 1976 (Panama) United states c. Herrera Fed 2nd Rep Vol 504 p.859 1974 (Peru)

Un,ted States v. Verdugo Fed 2nd Rep Vol 856 p.1214 1988 (Mexico)

Matta sallesteros v. Henman Fed Supp Vol 697 p.1040 1988 (Honduras)

United States c. Valot Fed 2nd Rep Vol 625 p.308 1980 (Thailand)

United States v Lujan Fed 2nd Rep Vol 510 p.62 1975 (solivia & Argentina)

Cases contravening the principle of speciality

United States v. Cuevas Fed 2nd Rep Vol 847 p.1417 t988 (Switzerland)

United states v. Kaufman Fed 2nd Rep Vol 8s8 p.ss4 1988 (Mexico)

United States v. Lehder-Rivas Fed Supp Vol 668 p.l523 1987 (Colombia)

United States v. Rossi Ped 2nd Rep vo, 545 p.814 1977 (Spain)

Case in which maximum imposable sentence is exceeded

United States v Casamento Fed 2nd Rep Vol 887 p.1141 1989 (Spain)

Additional cases referred to in the text

Ker v. Illinois U.S. Vol 119 p.436 1888

Frisbie v. Collins U.S. Vol 342 p.519 1952

Statutes

United States Code, Ttle 8, Aliens and Nationality.

United States Code, Title 22, Foreign Relations and Intercourse.

Fed Supp = Federal Supplement.

Fed 2nd Rep = Federal Second Reporter

Both publ¡shed by: West Pusl­sh­ng Co., St.Paul, M­nnesota.

U.S. = Un­ted States Supreme Court Reports, Lawyens Edition.

Published by: The Lawyens Cooperat­ve Publishing Co., Rochester, New York.

 

Our valuable member Howard Marks has been with us since Sunday, 19 December 2010.

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