The 2003 extradition treaty between Britain and America continues to create controversy, with its critics protesting that it puts the UK at a disadvantage vis-à-vis the United States.

Extradition is the response to a simple problem: what to do when a person has committed a crime in one country but can’t be found there. The classic extradition situation involves criminal suspects who flee the jurisdiction, hoping to find sanctuary or anonymity somewhere else. For centuries, countries have responded to this problem with extradition treaties – agreements that create a process for requesting the return of a fugitive. Most of the time, extradition is routine; people suspected of serious crimes are apprehended and returned to face trial. But alongside these routine cases, extradition has always had a controversial side. For example, the fugitive might fear mistreatment after being returned for trial. Or, the fugitive might contend that the alleged offense is a political crime – perhaps brought in retaliation for opposition political activities – rather than an ordinary crime.

In the United States, the country’s first extradition – of alleged mutineer Jonathan Robbins to Great Britain, which promptly tried and hanged him – created a political firestorm. President Adams was accused of violating Robbins’ rights by handing him over without sufficient judicial process. Robbins was also portrayed as a freedom fighter, and the British Navy’s brutal practice of impressment and the autocratic powers of British captains highlighted the larger differences between monarchy and democracy. Extradition itself was attacked as inappropriate for the United States, because a democracy should give safe haven to anyone resisting tyranny. Not only did the Robbins extradition become an important theme in the 1800 election that Adams lost; the United States did not extradite anyone else for more than 40 years.

In the mid-nineteenth century, after agreeing to extradition treaties with, among others, Britain and France, the United States began responding to extradition requests again. And, again, confusion ensued about the appropriate roles of judges and politicians. The problem is that international relations, including control of borders and the movement of persons across them, are usually under the control of executive officials, not judges. But the decision whether a person should be seized, imprisoned, and ultimately expelled from the country to face charges somewhere else involves questions typically entrusted to judges. Ultimately, the United States settled on a process by which a hearing before a judge was necessary but not sufficient for extradition. Once a judge determined that the alleged offense came within the treaty and that there was sufficient evidentiary support to justify the filing of criminal charges, he would certify that the fugitive was extraditable, but the Secretary of State would then decide whether, in fact, to carry out the extradition.

When it works properly, the process for extraditing people from the United States accommodates the legal and political aspects of extradition: the purportedly objective legal questions about the specific charges and the sufficiency of the evidence, and the subjective political and diplomatic questions about the desirability and ramifications of extradition. In theory, this process also allows the person whose fate is on the line to raise concerns about mistreatment or political motivations for the criminal charges. In practice, however, those concerns receive little consideration in the U.S. Typically, courts follow the “rule of non-inquiry” and hold that the question of possible mistreatment overseas is something for the Secretary of State to decide. For at least some U.S. courts, the rule applies even to claims of torture. One would hope that the Secretary of State would refuse extradition where there is a reason to believe that mistreatment could occur, but the Secretary’s political review of extradition cases – which is not subject to judicial review – usually elevates diplomacy above the individual interests of the fugitive.

Still, U.S. courts did develop a relatively robust “political offense” exception to deal with cases in which the fugitive claims that the prosecution arises from political activities that ought to receive protection, not punishment. Four times in the 1980s, U.S. judges and courts refused to consent to the extradition of men accused of committing violent crimes in support of the Irish Republican Army. Concerns about possible mistreatment of these men in British prisons might also have played a role in the courts’ decisions. In response to protests from the British government, the two countries negotiated a supplemental treaty that narrowed the political offense exception and ultimately agreed to an entirely new extradition treaty in 2003. The new treaty excludes crimes of violence from the category of political offenses. Other recent treaties between the United States and other countries impose similar limitations on the political offense doctrine.

But instead of quieting British concerns about extradition, the 2003 treaty has continued to create controversy. The problem now is not that the United States is still denying extradition requests, because the U.S. has not refused a single U.K. request under the new treaty. Instead, opponents of the treaty charge that it puts the United Kingdom in an unequal position vis-à-vis the United States. For example, the 2003 treaty provides that, for requests to the United States, British prosecutors must supply “such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.” U.S. prosecutors do not have the same obligation for their requests to the U.K. I don’t have the expertise to comment on how all of this plays out in the U.K., but U.S. extradition proceedings are notoriously one-sided. Ordinary rules of procedure do not apply; the person facing extradition from the United States has little ability to challenge the sufficiency of the evidence or to present her side of the story; and the evidentiary standard of probable cause is so low that the government almost always prevails. If U.K. courts apply an even lower standard (and the research I’ve done indicates that this is a matter of dispute), then perhaps something really is wrong – but unless the U.K. is prepared to abrogate the treaty, it is bound by its agreement until a new agreement comes into force.

A second issue in the U.S.-U.K. extradition relationship is the willingness of the United States to criminalize conduct committed in another country that has harmful effects within the U.S., and then to seek the extradition of the people who have committed those actions. So long as its legislation is reasonable, the U.S. is on solid international law ground in criminalizing this conduct and in seeking to prosecute those responsible for it. Further, the treaty specifically addresses offenses “committed outside the territory of the Requesting State”; it requires extradition if the laws of both countries criminalize this kind of conduct, and it permits extradition even when they do not. As a matter of legal doctrine, the treaty is completely equal on this issue, and it explicitly creates discretion in this area when the substantive criminal laws of the two countries are out of alignment. If the British government has failed to use its discretion not to extradite under the treaty, then that is an issue of internal politics.

The Home Secretary has proposed enactment of a “forum bar” that would allow British courts to prohibit extraditions where prosecution is possible in the U.K. It is not clear to me how much this proposal responds to the issue I outlined above or, instead, whether it is simply designed to protect British citizens from extradition. Efforts to protect British citizens would not correct an imbalance in the treaty; instead they would create one, for the document provides that “[e]xtradition shall not be refused based on the nationality of the person sought.” Here again, the underlying issue seems to be that the United States is more aggressive than the U.K. in criminalizing overseas conduct and then seeking to prosecute people who engage in that conduct. If those actions are unreasonable as a matter of international law, then it seems to me that the U.K. quite properly can resist extradition requests – but if it takes such a step, then it ought to apply a standard that, on the one hand, does not abrogate the treaty and, on the other hand is more coherent than “fairness.”

A third issue is human rights, which provided the public rationale for refusing the U.S.’s request for the extradition of Gary McKinnon. Efforts are apparently underway to entrust British judges with human rights issues relating to extradition. On this issue, the United Kingdom is ahead of the United States. As I discussed above, U.S. courts still follow the rule of non-inquiry and turn a blind eye to human rights claims in extradition cases, even as U.S. political officials also give short shrift to such claims. Allowing judges to decide these issues in the U.K. will also strengthen compliance with the European Convention on Human Rights, which imposes restrictions on extradition that go beyond those of treaties or common law (or of U.S. law).

And then, of course, there is Julian Assange, about whom I will say as little as possible. The European Arrest Warrant exists precisely to allow the easy extradition within Europe of people who are credibly accused of common crimes. Two British courts have determined that the allegations against Assange are sufficient. There is not, and there never has been, a requirement or even a practice of deciding in extradition cases whether the requesting country will ultimately be able to prove its case. Perhaps Assange will be acquitted if he ever faces trial, or perhaps not. But there is little, if any, merit in the arguments he has made so far on the specific issue of extradition, particularly those that relate to possible extradition to the U.S. No charges are pending against Assange in the United States, and prosecution of a foreigner for espionage based on receiving leaked documents would be extremely difficult. Perhaps he has a right to be paranoid, but for anyone who is not a conspiracy theorist, it is hard to understand why the United States would avoid a direct request and instead engage in secret machinations to have Assange extradited to Sweden, so that he could face another extradition process that would send him to the U.S. (Although it is easy to see why the U.S. government would be delighted by the prospect of prosecution in Sweden for sex crimes.) Nor would Assange face the death penalty if extradited to the U.S., because the European Convention on Human Rights forbids extradition under such circumstances. As for the conditions he would endure in a U.S. prison, he almost certainly would not be placed at Guantánamo (as he claims). Instead, he would receive the same treatment as any other federal prisoner (which is not at all to say that the conditions would be humane).

International extradition is an important law enforcement tool, particularly in an era of increasing international and transnational law enforcement activities. But its use will always raise political issues, especially for countries that allow extradition of their own citizens. The best approaches to extradition use courts to balance political concerns against legal doctrines. But as I have tried to make clear, court involvement, by itself, does not ensure the protection of human rights, particularly when the pressure to extradite is intense. Britain is moving in the right direction with its proposals to give judges greater power to decide on human rights issues in extradition cases. I hope the United States will pay attention.

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