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Enforcement Edge
September 4, 2020

International Extradition from the Inside: Law, Diplomacy and Inter-Agency Dynamics

Enforcement Edge: Shining Light on Government Enforcement

Last week, a Ghanaian citizen extradited to the United States on August 21 made her first appearance in federal district court in the Southern District of New York (Case No. 1:18-CR-201). Federal prosecutors allege that Deborah Mensah participated in a conspiracy that resulted in the theft of millions of dollars from businesses and vulnerable individuals across the United States. Mensah is the eighth defendant charged in the case.

The FBI has touted Mensah's case as an example of the robust international law enforcement cooperation that occurs between the US government and its "formidable network" of foreign extradition partners. This network involves line prosecutors in the United States, lawyers and policy officials at the Department of Justice and Department of State, their foreign counterparts, and embassy and consulate staff around the world, all working to interpret and implement the provisions of carefully negotiated extradition treaties and to navigate complex issues of domestic and international law, diplomatic relations and inter-agency dynamics.

We've seen extradition from many sides in our former roles with the Justice and State Departments—Amy as a federal prosecutor and Justice Department Attaché at the US Embassy in London, and Sam as a senior legal and policy official with the Department of State. Now, in private practice, we represent individuals facing possible extradition both to and from the United States. So what does the process of international law enforcement cooperation actually look like in a case like Mensah's? 

Request by US Prosecutor

Because US extradition treaties are reciprocal in nature, extradition is possible in either direction. Extraditions like Mensah's, which involve the transfer of a person from a foreign country to the United States, begin with a request from a federal, state or local prosecutor in the United States, filtered through the Department of Justice's Office of International Affairs. OIA, which is the Justice Department's subject-matter expert on extradition, oversees all outgoing extradition requests. The extradition process is centralized at the national level in the United States and must be managed carefully in accordance with our international treaty obligations.

Review by OIA and State

OIA conducts a sufficiency review of the proposed extradition request, which includes determining whether: (1) an extradition treaty is in force between the United States and the country where the person sought for extradition is located; (2) the requirements of the treaty are satisfied; and (3) no exceptions apply. If OIA determines that the request is sufficient, it forwards it to the State Department's Office of Law Enforcement and Intelligence, located within the Office of the Legal Adviser, which conducts its own review. The State Department is responsible for transmitting the formal extradition request to the foreign treaty partner through diplomatic channels. Many treaties also permit the Justice Department to make an emergency request for provisional arrest if there is a concern that the person sought will flee while the United States is drafting the full extradition request.

Review by Foreign Treaty Partner

Extradition treaties are intended to operate like contracts and create a binding obligation to extradite, provided that the requirements of the treaty are met and no exceptions apply. Each country has its own procedures for reviewing incoming extradition requests, often involving both executive-branch officials and judicial authorities. Domestic proceedings in extradition cases can take months or years, particularly in high-profile or controversial cases.

Back to the Beginning

A foreign government's decision to extradite a person to the United States for trial does not mean that the foreign government has made a finding of guilt. It simply means that the foreign government has determined that the US government's submission meets the treaty's requirements for a successful extradition request. Overseas extradition proceedings, like those in the United States, address procedural and some substantive legal questions, but it is important to note that they are not a trial on the merits. Thus, when the extradited person arrives in the United States, the criminal proceedings start at the beginning—just as they would for a criminal defendant arrested and charged on US soil.

In line with this framework, Mensah appeared in US court last week and entered a plea of not guilty. Following an initial pre-trial conference, the court set dates for the government to complete discovery, the defendant to file motions, and trial to begin (currently scheduled for May 2021). The criminal case will now proceed, and lawyers and extradition specialists in the United States and Ghana will turn to the next request.

For questions about the intersection between international extradition and US criminal law, the procedures for extradition to and from the United States, the interpretation of US extradition treaties, potential defenses to extradition, and any other aspect of the law and practice of international extradition, please reach out to the authors or any of their colleagues in Arnold & Porter's White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.