Caitlan M. Sussman1Caitlan M. Sussman is a J.D. Candidate at the University of Chicago Law School, Class of 2022. She received her B.A., summa cum laude, from Cornell University in 2016. The author would like to thank the members of the Law Review’s Online Team for their invaluable comments and edits. She would also like to thank her family for their unconditional support.
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When British authorities dragged Julian Assange out of the Ecuadorian embassy in London in April 2019, the Australian-born founder of the whistleblowing platform, WikiLeaks, was no stranger to displacement. Granted political asylum by Ecuador in 2012 while on the run from U.S. authorities, Assange spent seven years confined to a converted corner office in the Ecuadorian embassy in London. However, Assange’s life was thrust back into limbo when Ecuador revoked his asylum and subsequently nullified his Ecuadorian citizenship. Assange, currently detained in a maximum-security British prison, faces extradition to the United States on an eighteen-count indictment that includes charges of conspiracy to commit computer intrusion and violation of the Espionage Act. If convicted of all charges and successfully extradited, Assange could incur a maximum penalty of 175 years in a U.S. prison.
After a U.K. lower court initially rejected the U.S. extradition request on the grounds that American prison conditions were too harsh, the Biden Administration gave assurances to the British government that Assange would be treated humanely if extradited. On December 10, 2021, the U.K. High Court gave the go-ahead for Assange’s extradition and approved his appeal to the U.K. Supreme Court.2The High Court granted the appeal based on the timing of when the United States provided the assurances that Assange would be humanely detained. If his appeal fails, he will be extradited to the United States to be prosecuted. If extradited, Assange’s ability to challenge his American prosecution under the provisions of the applicable United States-United Kingdom treaty will determine his fate.
Extradition is a cooperative response among nation states to “gain custody” of individuals accused or convicted of transnational crimes, meaning crimes that “transcend[ ] international borders, transgress[ ] the laws of several states or hav[e] an impact on another country.”3Barry E. Carter, Allen S. Weiner & Duncan B. Hollis, International Law 1106–07 (7th ed. 2018) (internal citation omitted). This Essay will explore the question of whether extradited defendants have standing to challenge their American prosecution under an extradition treaty’s “rule-of-specialty” provision—which states that a defendant can only be arrested, detained, or tried for offenses charged in the extradition proceedings in the absence of an objection by the surrendering nation.
Circuit courts are split on this issue—some allow standing when an extradited defendant brings an individual challenge to his prosecution, and others require an affirmative challenge by the surrendering nation to confer standing. This Essay will argue for a new test that, combined with the language and history of the U.S. extradition statutes, suggests extradited defendants have standing to bring specialty challenges despite lack of objection by the extraditing nation, provided that they only raise challenges that the surrendering nation would have brought.
“It is universally recognized that every state has the power to regulate conduct within its territory and, beyond it, such other conduct which affects its legitimate interests.” The stakes in extradition cases are therefore particularly high because their disposition implicates both the sovereignty and jurisdiction of nation states. This question has significant implications. The resolution of the specialty question would facilitate or bar an extradited defendant’s ability to challenge his or her prosecution on specialty grounds. Courts have explored its boundaries in recent high-profile cases like that of Mexican drug lord Joaquín Guzmán Loera, known to the public as “El Chapo,” who was extradited to the United States in 2017 and unsuccessfully challenged his prosecution under the specialty doctrine. And it would provide guidance on pending cases like those of Assange and NSA whistleblower Edward Snowden—wanted for extradition on U.S. espionage charges and currently exiled in Russia—if those individuals are successfully extradited. But more broadly, resolution of this question has profound consequences for the application of due process to foreign defendants. While courts have generally stopped short of recognizing a clear congressional intent to apply U.S. laws abroad, domestic case law has recognized that U.S. courts “may not disregard constitutional due process protections afforded foreign defendants haled into United States courts.” In fact, the Supreme Court has suggested that such foreign defendants must be afforded the same due process protections as U.S. citizens. If extradited defendants’ constitutional or procedural rights are abridged in U.S. courts during prosecution, this could strain relations between sovereign states. The extradition process, in which nation states impose purposeful limits on their sovereignty over defendants in exchange for reciprocity from another nation, could be thrown into jeopardy. Extradition allows nations to protect themselves from crimes implicating their national security and sanction violators accordingly, but it only works to the extent that both nations contract to be bound by an extradition treaty. A definitive answer to the question of an individual defendant’s standing to raise specialty challenges will help preserve both fundamental tenets of international relations and the institution of extradition itself.
Part I of this Essay will provide a brief overview of the extradition process and the rule of specialty. Part II will discuss the circuit split that gave rise to the present question. Part III will analyze the legislative history and structure of the Extradition Act to inform the standing analysis. Finally, Part IV will synthesize U.S. circuit court and Supreme Court opinions and propose that domestic courts adopt a three-part, context-specific test to resolve the question. Part V will examine how the proposed framework may be applied to the Assange case and similar cases going forward by use of an analogy to the recent extradition case of El Chapo.
I. Extradition and the Specialty Doctrine
A. The Extradition Process
Extradition is form of legal cooperation between nation states.4Carter, Weiner & Hollis, supra note 3, at 1107. During the extradition process, one nation (the “requested nation,” “surrendering nation,” or “asylum nation”) surrenders to another (the “requesting nation”) an “individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other” for prosecution or punishment.
The extradition process for fugitives located outside the United States is initiated when federal, state, or local prosecutors make an extradition request to the executive branch. The Department of Justice’s Office of International Affairs (OIA) is the first to review extradition requests. For each extradition request, the OIA reviews several factors to decide whether that request is legally sufficient and, if so, whether to ask the Department of State to make a formal extradition request. These factors include:
- Whether an extradition treaty exists between the US and the requested country;
- Whether the offense/offenses for which extradition is sought are extraditable. Under the doctrine of “dual (or double) criminality,” the offense for which a defendant is charged “must be a crime in both the requesting and requested state” before a fugitive may be transferred to the requesting state.5Id.
- Whether the fugitive is extraditable based on procedural factors including nationality, facts of the accused offense, and posture of the case; and
- Whether any applicable statutes of limitations have expired.
The OIA may also consider factors such as the location of the accused crime and whether capital punishment may be sought.6In cases in which extradition is sought from the United States, the process differs in some respects, which are beyond the scope of this Essay.
Prosecutors may request the fugitive’s provisional arrest while awaiting the executive branch’s ruling on a formal extradition request, as long as the fugitive is a flight risk and the treaty allows for such an arrest. The OIA will evaluate whether the facts meet the requirement of urgency under the treaty. If this requirement is satisfied, the OIA will request provisional request; if not, the prosecutor must make continue through the formal extradition request route.
If the OIA approves the extradition request, it forwards the request to the Department of State. The Department of State then sends the request through diplomatic channels to the requested nation. Once the extradited nation has received the request, its authorities will undertake a similar review to the United States, including executive approval and judicial review. Extradition requests may take months or years to complete, and may be appealed. Once the requested nation has finalized its view of an extradition request, it will notify the U.S. government. If the request is denied, the OIA may work with prosecutors and the Department of State to find alternative ways to gain custody of the fugitive, such as deportation.
B. Extradition Treaties
Extradition treaties create an obligation to extradite under international law and are the most common means of “extracting” fugitives from other nations. States may, however, choose to surrender individuals to requesting nations with which they do not maintain an extradition treaty or for offenses not covered under a treaty “solely out of comity.”7Carter, Weiner & Hollis, supra note 3, at 1107. Although some states will not extradite their citizens, the United States will generally do so as long as the applicable extradition treaty allows for such extradition.8Id.
Comity is the international legal principle that sovereign nations will show mutual respect for each other’s “legislative, executive, and judicial acts.” Nonetheless, states—including the United States—have occasionally evaded extradition treaties by force or by abducting fugitives without the asylum nation’s consent.9This process, known as “irregular rendition” (or “extraordinary rendition”), is controversial as it often takes place without the consent of the nation in which the fugitive is located. Irregular rendition, although ripe for research in a separate essay, is beyond the scope of this piece.
Modern extradition treaties “(1) identify the offenses for which extradition will be granted, (2) establish procedures to be followed in presenting extradition requests, (3) enumerate exceptions to the duty to extradite, [and] (4) specify the evidence required to support a finding of a duty to extradite.”10The statute of limitations for extradition varies, and many extradition treaties specify which country’s statute of limitations should apply. U.S. domestic law specifies the procedures by which states may satisfy their obligations under extradition treaties.11Carter, Weiner & Hollis, supra note 3, at 1107. The Extradition Act of 1981 governs extradition of foreign defendants under U.S. law. This limited statutory framework provides that requests for extradition of an individual who has committed crimes abroad may be granted if there is an existing extradition treaty between the United States and such foreign government, or if comity weighs in favor of extradition. The United States concluded its first extradition treaty with the United Kingdom in 1794 and currently maintains extradition treaties with over one hundred nations.
The “political offenses” exception provides a narrow defense against extradition for defendants charged with offenses of a political nature.12Id. An act is generally not a political offense if it violates international law or is “inconsistent with international standards of civilized conduct.” Some nations, however, have sought to limit the exception in recent years. In 2003, the United States and the United Kingdom negotiated a new extradition treaty, effective in 2007, that further narrowed the political offenses exception. Its definition in Article 4 exempts from the political offense category serious violent offenses like “murder, manslaughter, malicious wounding, or inflicting grievous bodily harm” as well as kidnapping, hostage taking, and conspiracy to commit any such offenses.
Notwithstanding these provisions, the requested nation will refuse to extradite if state authorities deem the extradition request to be politically motivated. However, an offense is not of a political nature if a “multilateral international agreement” obligates both parties “to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution[ ].” The U.K. Extradition Act of 2003 removed the previous statutory exception for political offenses, suggesting that the U.K. government intended to eliminate the exception altogether.
Assange did, in fact, raise a political offense argument as a defense against his extradition. The lower court, however, rejected his claim based on the Parliament’s removal of the exception in the Extradition Act. It is possible that defendants facing extradition from other nations may be able to raise a political offense exception but not when the United Kingdom is the requested nation.
The provisions found in extradition treaties provide the outer bounds for permissible actions by states during and after extradition. Despite the probable inapplicability of the political offenses exception (at least in the United Kingdom), extradited defendants have still found ways to challenge their extradition within the four corners of the applicable extradition treaties. The rule of specialty (or the “specialty doctrine”) is the most common issue to arise after extradition under a treaty.
The rule of specialty, the subject of this Essay, is a widely accepted principle of international law frequently incorporated into extradition treaties. Once a defendant has been extradited, specialty bars the receiving country “from detaining or bringing additional charges against a defendant other than the ones for which he was extradited.” After receiving the extradition request, the surrendering nation inspects the substantive charges specified in the request and “may choose to grant extradition for only the extraditable offenses listed in the treaty.” In other words, “a defendant may be tried only for the offense for which he was delivered up by the asylum country.” The doctrine “generally requires a country seeking extradition to adhere to limitations placed on prosecution by the surrendering country.” Thus, by definition, defendants can only bring specialty challenges once the extradition is complete and they face prosecution in the requesting state. The requesting state is responsible for ensuring its compliance with the specialty principle. A requested nation may, however, waive specialty to allow the prosecution of crimes beyond those for which a defendant was extradited. In addition, courts have recognized that “a country may act outside an extradition treaty as a matter of international comity.”
Mary-Rose Papandrea aptly summarizes one rationale for the doctrine:
Realists argue that because sovereign states have no duty to surrender individuals to another state in the absence of an extradition treaty, but rather have an absolute right to grant asylum, the doctrine of specialty is needed “to protect the extraditing government against abuse of its discretionary act of extradition.” When a state enters into an extradition treaty, it sacrifices a limited portion of its right to grant asylum to the accused individual. Under the realist view, the doctrine of specialty functions to protect the remaining sovereign rights of the asylum state, which continue to immunize the defendant from prosecution for those acts not covered by the extradition request.
Conversely, when an asylum state waives specialty, it denies the extradited individual asylum for any other crimes not specified in the relevant treaty. This, Papandrea writes, leaves the defendant “at the state’s mercy.”
II. Interpretations of the Specialty Doctrine: United States v. Rauscher, Ker v. Illinois, and the Resulting Circuit Split
Two Supreme Court cases decided over 100 years ago are the most frequently referenced regarding the specialty doctrine. However, their ambiguities have given rise to a circuit split. The seminal case is United States v. Rauscher (1886). In Rauscher, the Supreme Court held that an individual extradited to the United States pursuant to an extradition treaty “can only be tried for one of the offences described in that treaty” and not offenses outside of it. Commentators have interpreted this holding to mean that “the specialty doctrine applies to every extradition treaty to which the United States is a signatory, even if specialty is not explicitly mentioned.” Rauscher’s holding suggests that “an individual extradited to the United States has standing to assert the doctrine when the surrendering state also clearly objects to the additional charges not mentioned in the extradition request.” Referring to the Act’s predecessor statutes, the Court stated that these statutes were “conclusive upon the judiciary of the right conferred upon persons brought from a foreign country into this under such [extradition] proceedings.” This language has been read to imply that “the U.S. extradition statutes are a source of a derivative personal right to specialty.”
In Ker v. Illinois (1886), decided the same year, the Court rejected a defendant’s argument that an extradition treaty creates a right not to be taken from an asylum state outside such treaty’s terms. The Court ruled that the defendant did not have the right to challenge his prosecution independently of a challenge by the Peruvian government. However, in the wake of Rauscher and Ker, it is still unclear under what circumstances an individual defendant has standing to allege a violation of the specialty doctrine when his or her asylum country does not explicitly object to the added charge. The Supreme Court has repeatedly declined to rule on this narrower issue. Three years ago, it denied certiorari in Hamilton v. Clarke (2018), the most recent case seeking to reach the Court on this question, deepening the longstanding circuit split.
On one side of the split, the Second and Seventh Circuits have taken a “classical” or “positivist” approach, holding that individuals lack standing to raise rule-of-specialty claims absent an “affirmative protest from the surrendering country.” These circuits have reasoned that extradition treaties are agreements between “independent nations” and not between nations and individuals; therefore, they do not create individual rights. The specialty doctrine “exists to protect only the surrendering state, [so] only the surrendering state may insist on strict adherence to specialty.”
In 2017, the Second Circuit in United States v. Barinas (2nd Cir. 2017) denied standing to a defendant accused of drug trafficking, who sought to raise a rule-of-specialty challenge to the court’s finding of a supervised release violation after his extradition to the United States. The court reasoned that the requested nation, the Dominican Republic, did not object to his prosecution, and the relevant treaty gave no indication that its provisions were intended to be enforced by individual defendants. It stated that “international treaties establish rights and obligations between States-parties—and generally not between states and 9 individuals, notwithstanding the fact that individuals may benefit because of a treaty’s existence.” And in the most recent high-profile extradition case, United States v. Beltran-Leyva (Guzman Loera) (2nd Cir. 2022), the Second Circuit rejected the defendant’s specialty challenge to his prosecution for importing more than one million kilograms of narcotics into the United States as well as his cartel’s use of violent tactics “to control territory throughout Mexico and to subdue opposition.” Similarly, the Seventh Circuit ruled in Matta-Ballesteros v. Henman (7th Cir. 1990) that a Honduran defendant charged with narcotics offenses who brought a habeus petition after he was extradited to the United States lacked standing to raise a treaty violation defense under the specialty doctrine in the absence of any protest by Honduras.
In contrast, the Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have taken a “natural law” approach, granting defendants standing to individually (i.e., separate from objections raised by their state of origin) raise claims under a treaty’s rule-of-specialty provision. The natural law conception of a defendant’s rights “limit[s] the court’s in personam jurisdiction to the offense charged in the extradition request.” Specifically, courts granting standing have held that defendants have a derivative personal right to bring specialty challenges. This means they have standing to raise such challenges as long as those challenges are limited to ones “that the [sur]rendering country might have brought,” with roots in treaties or statutes.
In United States v. Cuevas (9th Cir. 1988), the Ninth Circuit held that a defendant extradited to the United States pursuant to a Swiss extradition order for drug conspiracies and currency reporting offenses could “raise whatever objections the extraditing country would have been entitled to raise.” The Eighth Circuit drew on the same principle but reached an opposite result based on the specific facts of the case. In United States v. Lomeli (8th Cir. 2010), a Mexican defendant was convicted in a U.S. federal district court of conspiracies to commit money laundering and distribute marijuana. The Eight Circuit rejected his claim that the consideration of his prior criminal history in determining his sentence violated the specialty doctrine. The court held that “the doctrine of specialty does not operate to bar consideration of all pre-extradition conduct when determining a defendant’s punishment for the extradited offense.”
Interestingly, the Third Circuit has tended to fall on both sides of the debate, seeming to recognize the possibility of individual derivative standing while also denying standing to individual defendants based on lack of objection from the extraditing nation.
Previous scholarship has attempted to resolve the split. One view conceptualizes extradition treaties as contracts between nations. The treaty-drafting process and the extradition itself entail bargaining whereby both states purposely limit their sovereignty by restricting the conditions under which the requesting state may exercise jurisdiction over the defendant and by which the surrendering state may grant the defendant asylum. Thus, the requesting nation is the intended beneficiary of the principle of specialty. By extension, some scholars have argued, an extradited individual is a third-party beneficiary and can assert rights under the bilateral treaty. Nevertheless, the contract approach alone does not provide a definitive resolution because “whether a U.S. court adopts this perspective depends on the U.S. court’s method of interpreting the underlying bilateral extradition treaty, if such a treaty is in effect between receiving and surrendering states.”13M. Cherif Bassiouni, International Extradition: United States Law and Practice 614 n.565 (6th ed. 2014). This context-specific element in a standing analysis will be discussed in detail in Part IV. Other scholars have argued that political pressures on ratifying states to extradite defendants may lead surrendering states not to protest a treaty violation; thus, the defendant is the best-suited to do so. Lastly, some scholars have argued that efficient treaty enforcement weighs in favor of standing. Otherwise, surrendering nations would need to keep track of all relevant proceedings, including those against the defendant. However, scholars have not yet come up with a comprehensive rule-based framework to analyze this question.
III. Legislative History and Structure of the U.S. Extradition Act
An exploration of the legislative history and structure of the Extradition Act (“the Act”), which governs extradition of foreign defendants, will assist in the standing analysis. Discussion of the U.S. extradition statutes in scholarship regarding foreign defendants extradited to the United States is relatively scarce. This is, in part, due to the fact that the statutory framework for extradition in the United States has historically been divorced from the extradition treaties themselves.14See S. Rep. No. 97-331 (1982) (Senate Judiciary Report on S. 1940); H.R. Rep. No. 97-627, pt. 1 (1982) (House Judiciary Report on H.R. 6046). In addition, the Act’s scope primarily covers extraditions from the United States to a foreign country or between U.S. states.
Although the current version of the Act clearly addresses the procedures underlying extradition requests made to the United States, it is still relatively ambiguous with regard to extradition requests made by the United States and does not directly consider the American prosecution of extradited defendants for their accused crimes. Some pundits have thus argued that an analysis of the Act will not assist much in resolving this circuit split.
The Act does, however, allude to the specialty doctrine. Section 3192, still unchanged today, provides for physical protection of the extradited defendant in the United States “until the final conclusion of his trial for the offenses specified in the warrant of extradition” (emphasis added). This suggests the United States should adhere to specialty principles. Therefore, although the Act provides no further elaboration, analysis of its provisions can assist in answering the question of whether defendants may challenge their prosecution on specialty grounds absent the requested state’s explicit objections.
Under the original version of the Act, M. Cherif Bassiouni writes, “the United States [could] lawfully extradite an individual only pursuant to  a formal request made by another state in reliance upon  a treaty concerning extradition between the United States and the requesting state.” However, it did not provide a valid legal framework for extradition solely on the basis of the Act, contrary to the approaches of other countries.15Other nations, like the United Kingdom, have much more robust statutory frameworks to handle extradition, addressing detailed specialty considerations within these statutes. Rather, it affirmed the need to rely on an extradition treaty. Therefore, the Act was a relatively disjointed and ambiguous supplement to treaties.
Congress amended the Act in 1996. Scholarship subsequent to Bassiouni has not addressed the 1996 amendments, calling for an updated analysis. As referenced in Part II, since the late 1970s and early 1980s, extradited defendants have alleged specialty violations many times. In Rauscher, one hundred years before the amendments to the Act, Justice Gray’s concurrence examined the text of the Act’s predecessor statute. In addition, the language of 18 U.S.C. § 3192 directly implicates specialty. And there have been instances in which foreigners within the United States have challenged their extradition abroad in U.S. federal court based on an alleged specialty violation. Therefore, analyzing the history and text of the 1996 amendments is helpful in exploring converse situations in which foreign defendants extradited to the United States wish to challenge their American prosecution.
The 1996 amendments were enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. The amendments aimed to “deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes.” First, Congress modified 18 U.S.C. § 3181, altering the “scope and limitation” of the Act. In the past, § 3181 had only consisted of part (a) stating that “the provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government” (emphasis added). The 1996 Act added two new subsections reflecting a recognition that “some countries [like the United Kingdom] grant extradition without a treaty, and of those that do, most require an offer of reciprocity.” The relevant subsection provides (emphasis added):
(b) The provisions of this chapter shall be construed to permit, in the exercise of comity, the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government if the Attorney General certifies, in writing, that—
(1) evidence has been presented by the foreign government that indicates that had the offenses been committed in the United States, they would constitute crimes of violence as defined under section 16 of this title; and
(2) the offenses charged are not of a political nature.
Congress also amended § 3184 governing the extradition of defendants to the United States. This provision, like § 3192, recognizes specialty principles. Section 3184 codifies the process whereby district or magistrate judges may issue warrants for the apprehension and extradition of any person over which the court has jurisdiction who has “committed within the jurisdiction of any . . . foreign government any of the crimes provided for by . . . treaty or convention.” The 1996 amendments to § 3184 added references to § 3181(b) throughout, allowing the two sections to operate in tandem.
These amendments loosened the treaty-based extradition language in the interest of comity. This is presumably because other nations, in exchange for their extradition of fugitives to the United States, expect reciprocity. Congress clearly wished to permit the U.S. government to relinquish some sovereignty by relinquishing jurisdiction over foreign nationals in aid of international relations. In turn, Congress likely hoped to better facilitate extradition of individuals to the United States.
The 1996 amendments recognized the reality of an extradition framework that often operates outside of formal treaties and relies on mutual relations between nations. Furthermore, this language imposed purposeful limits on the U.S. government’s ability to extradite defendants and thereby relinquish sovereignty over those individuals. In keeping with double criminality, the Attorney General must certify that the requesting nation has submitted evidence indicating “that had the offenses been committed in the United States, they would constitute crimes of violence.”
The “crimes of violence” language in § 3181, and the Act’s purpose of deterring terrorism and providing justice for victims, are instructive. On one hand, the language suggests that national security concerns are paramount in most U.S. extradition cases, predominating over the individual rights of fugitives. On the other hand, the Act’s language reveals Congress’s particular concern with protecting its citizens from crimes of violence. Section 3181 codifies the political offenses exception by excluding crimes of a “political nature” from its coverage. Therefore, defendants accused of non-violent crimes like whistleblowing might have more leeway to bring individual specialty challenges than those, like El Chapo, accused of violent crimes.
Most importantly, the 1996 Congress did not alter any prior references to specialty in the Act. Nor did it add to the statute any sections governing prosecution of defendants extradited to the United States. The Act allowed the U.S. executive branch (the Departments of Justice and State) to retain primary responsibility for making extradition requests and prosecuting extradited defendants. In cases of requested extradition from the United States, the foreign state’s executive and judicial branch maintained an active role in supplying evidence of a fugitive’s criminality (see 18 U.S.C. § 3181). In cases of extradition to the United States, the requested nation purposely and willingly limits its jurisdiction over the defendant once the individual is extradited. Therefore, as scholars have noted, defendants, and not states, are the best-situated entities to bring specialty challenges in response to alleged treaty violations.
The Extradition Act’s history and provisions legitimize extradited defendants’ ability to challenge their prosecution on specialty grounds. Congress did not prohibit individual standing through the Act or its amendments, even after numerous courts had ruled on the issue and broadened the circuit split. This suggests an intent to allow a defendant standing to challenge specialty violations—or at least an intent not to interfere with that right—if the surrendering nation does not object on a defendant’s behalf. Although Congress is not a monolith, its inaction on this issue suggests that a derivative personal right to bring specialty challenges is, for now, consistent with U.S. extradition law.
IV. A Three-Step Framework for Analyzing Standing Under the Specialty Doctrine
This Essay proposes a three-step framework for analyzing the question of individual standing for extradited defendants. The test is comprised of factors courts have considered at different times to answer the standing question, but these factors have never been considered as a cohesive unit. This Essay argues that these factors—(1) the treaty’s coverage of the offense; (2) the defendant’s waiver of rights and/or prosecution restrictions; and (3) the signatory nations’ actions and intent—should be examined together and in order.
Under this proposed framework, a court must first consider whether the crime for which the defendant was extradited or the punishment he received after prosecution in the United States is covered under the relevant extradition treaty. If the crime or punishment is covered, the prosecution does not violate the specialty doctrine. If the crime or punishment is not covered under the treaty, the defendant may have suffered a cognizable injury and there may be a specialty violation, unless the intent of the two contracting nations suggests a desire to extradite defendants for such a crime.16Although the U.S. statutory framework for extradition permits “reliance on multilateral treaties as a legal basis for extradition,” the United States has never relied on a multilateral treaty for this purpose. Therefore, this Essay will focus only on bilateral extradition treaties between two signatory nations.
In the case of a potential violation, in order to determine whether a defendant has an individual right to challenge his American prosecution in the absence of a nation’s objection, a court must consider two additional factors. First, a court should consider whether the surrendering nation expressly waived any restrictions on the defendant’s prosecution or punishment. If so, the court need not determine whether specialty was violated because its application has been waived. Second, courts should ask whether the nations’ actions or intent are probative of the validity of the extradition and/or the subsequent prosecution. Importantly, all of these factors are subject to international comity principles which provide that sovereign states should endeavor to avoid actions that would conflict with another state’s laws, to the extent possible. Even if there is no specialty violation, comity may sometimes require that contracting nations act outside the confines of the treaty if doing so would be mutually beneficial.
Although the underlying specialty principles are similar across extradition treaties, the specific language varies, as do the circumstances of the extradition itself. In addition, sometimes nations request extradition of defendants for crimes not specified in a treaty, but courts have imputed intent to extradite for those crimes by analogizing to other crimes that are covered in the treaty. Given the variety of specific situations governing nations’ behavior pursuant to extradition treaties, some flexibility must be built into the test. For this reason, the third factor, which considers the signatory nations’ intent, employs a standard-based approach within the larger rule-based framework. It leaves room for courts to address specific differences in both the context and language of each treaty. It is, however, important to note that this approach does not negate the analysis in which circuit courts have engaged that has given rise to the circuit split. Rather, it builds a standard into the final step of the test in order to determine which of the rules promulgated by the circuit courts—standing or no standing in the absence of explicit objections by the surrendering nation—courts should apply going forward. The subsections below will explore each of the proposed steps of the test in turn.
A. Step One: Treaty’s Coverage of the Offense
Extradited defendants have invoked rule-of-specialty provisions to challenge different elements of their prosecution and punishment. However, regardless of what element of the offense is challenged, courts have maintained that in order for a defendant to have standing, the element of the offense or the offense itself must not be covered in the extradition request or be consistent with the extradition treaty. “[T]he prosecutable offense from an extradition proceeding is the offense specified in the warrant of extradition.” This concept, echoed in the statutory language of § 3192, is the first step of the standing analysis: if the defendant has been prosecuted for a crime covered by the extradition request and consistent with the extradition treaty, there is no ground for a suit and the analysis stops at the first step. Conversely, if the crime is not covered in the order or is not consistent with the applicable treaty, the defendant’s suit can proceed.
All courts that have decided this question have considered coverage under the relevant order and treaty. In United States v. Puentes (11th Cir. 1995), the Eleventh Circuit held that the Uruguayan defendant had a derivative personal right to bring a specialty challenge to his prosecution for conspiracy to import cocaine under the applicable United States-Uruguay treaty. Nevertheless, the court found no specialty violation and upheld his conviction. Because “the [surrendering] Party may refuse the extradition request if an examination of the case in question shows that the warrant is manifestly ill-founded,” and Uruguay had not done so, the court held the introduction of the evidence in Puentes’s case to be proper. Similarly, the Ninth Circuit in Cuevas denied the defendant standing to bring an evidentiary challenge to his trial and conviction. “Cuevas was not tried on any charge for which he was not extradited,” the court reasoned.
The only exception to the coverage rule is if the proponent of extradition can demonstrate that the contracting nations intended for the treaty to include that crime as a prosecutable offense. In such cases, the defendant’s challenge will fail. The Tenth Circuit recognized this exception in United States v. Levy (10th Cir. 1990). The court ruled that a defendant extradited from Hong Kong for operating a continuing criminal enterprise had standing to challenge his prosecution. Even though the extradition order surrendering him to American authorities neither mentioned the crime by name nor recited its elements, the court analogized to Hong Kong drug trafficking offenses, holding that the “totality of the circumstances” suggested that “Hong Kong intended to extradite [the defendant]” on the continued criminal enterprise charge. This exception, as applied by courts, demonstrates the need for built-in flexibility within the proposed rule-based framework. The exception is inextricably related to the third step outlined in Section C below.
The above cases demonstrate that while there are varied considerations inherent in all forms of specialty challenges, it is always necessary to ask whether the relevant offense or punishment is covered under the extradition order and treaty. If the crime is covered, or a court infers coverage via an intent-based analysis, a defendant cannot bring a specialty challenge and the analysis stops there. Any waiver of specialty by the requested nation further indicates that such a challenge will fail.
B. Step Two: The Defendant’s Waiver of Rights and/or Prosecution Restrictions
A common thread runs through each case in which a circuit court has found standing based on rule-of-specialty challenges in the absence of explicit objections by the surrendering nation. Every court that has considered the standing question has held that standing is contingent upon the surrendering nation not waiving or otherwise disclaiming the defendant’s rights under the rule of specialty. This was the Eleventh Circuit’s primary holding in Puentes. The waiver consideration constitutes the second step of the standing test.
In United States v. Riviere (3rd Cir. 1991), for example, the Third Circuit determined that the defendant, extradited to the United States from the Commonwealth of Dominica, lacked standing to challenge his prosecution for firearms offenses, drug offenses, and assault of a federal marshal. The court reasoned that Dominica had expressly waived any restrictions on extradited defendants’ prosecutions in the United States and had made no specific objection to Riviere’s extradition. Dominica “effectively expressed its intention that it would not grant asylum to Riviere for any offense for which the United States intended to prosecute him, an act completely within Dominica’s discretion as a sovereign nation.” This rationale echoes Papandrea’s explanation for the specialty doctrine referenced in Part I. A waiver of objection to prosecution is a recognition of comity principles—the surrendering state relinquishes part of its sovereignty over the defendant and allows the requesting nation to step in. The above cases also clearly demonstrate that any private right of enforcement to which the defendant may otherwise be entitled is contingent upon the signatory nations’ actions and intent.
C. Step Three: The Signatory Nations’ Actions and Intent
If there has been no waiver of specialty by the surrendering nation, a court considering the question of individual standing must look to the signatory nations’ actions and intent in contracting to enter into an extradition treaty. This idea has been echoed by scholars in the field.17See Bassiouni, supra note 13, at 614–15, 614 n.565.
A defendant’s success in challenging his prosecution in a U.S. court thus depends in part on whether the signatory nations intended the treaty to include not only a right of action for the signatory nations themselves, but also a private right of action in the absence of objection by the signatory nations. A Second Circuit case decided in 2016, United States v. Garavito-Garcia (2016), corroborates this idea. In Garavito-Garcia, a defendant challenged his conviction for drug and terrorism offenses, arguing, inter alia, that the district court should not have denied his motion to dismiss the indictment for lack of jurisdiction. He reasoned that Colombia violated its extradition treaty with the United States by turning him over to the United States without treaty-based authorization. The Second Circuit rejected Garavito-Garcia’s challenge, holding that because “the Government of Colombia [had not] first [made] an official protest,” the defendant lacked standing to invoke the extradition to support dismissal of the indictment. The Second Circuit reasoned:
[The defendant] conflates two distinct concepts: treaty language “directly benefiting private persons,” which international agreements regularly feature; and treaty language indicating “that the intent of the treaty drafters” was that such benefits “could be vindicated” through private enforcement, which is far less common. The extradition treaty at issue in this case may contain language meeting the former description, but [the defendant] has not identified, nor can we locate, language meeting the latter.
Garavito-Garcia demonstrates the importance of considering what the treaty drafters and/or signatories intended. Moreover, courts may analogize from a treaty’s enumerated offenses to impute intent. At the heart of the intent-based analysis is the question of whether the signatory nations intended “to permit private enforcement.” This last part of the framework may be assessed by examining the specific language and structure of the treaty in question, leaving room for flexible application by courts faced with fact-specific differences in each extradition case.
Combining the three-part test and the Extradition Act’s language together speaks to intent. The Act references specialty and extradition treaties, but Congress did not alter the existing extradition framework to cover U.S. prosecution more directly or prohibit standing. In addition, it imposed limits on the surrender of fugitives in the exercise of comity, presumably in order to better facilitate the reciprocal extradition of defendants to the United States. This leaves defendants in the best position to raise specialty challenges that the state might otherwise bring and suggests an existing—albeit narrow—right to individual derivative standing.
V. Applications: El Chapo and Assange
The applications of the proposed three-part framework merits discussion. The most recent high-profile extradition case to examine the specialty doctrine was the El Chapo case decided on January 25, 2022.
El Chapo was extradited to the United States in January 2017, pursuant to the U.S.-Mexico extradition treaty, in connection with various criminal indictments related to his actions as the former leader of the Mexican drug trafficking organization known as the Sinaloa Cartel. After a three-month trial, a jury convicted El Chapo of ten criminal counts, including conducting a continuing criminal enterprise, drug trafficking conspiracies, unlawful use of a firearm, and a money laundering conspiracy. El Chapo moved for a new trial and an evidentiary hearing, but the district court rejected both motions. On appeal, El Chapo brought several claims, including two claims that his indictment should have been dismissed under the specialty doctrine. First, he alleged that after Mexico agreed to extradite him to the United States to stand trial on charges in indictments from the Western District of Texas and the Southern District of California, the U.S. government fraudulently obtained Mexico’s waiver of specialty in order to transfer him to the Eastern District of New York (E.D.N.Y.) for trial. Second, he claimed that Mexico had not agreed to the “harsh conditions of his pretrial detention.” The Second Circuit, in line with that court’s precedent, affirmed the district court’s rejection of El Chapo’s specialty challenge. The court’s analysis implicitly addressed all components of the proposed framework.
First, the court did not question the treaty’s coverage of the offenses. The court referenced the U.S.-Mexico treaty’s specialty provisions, following its precedent in Barinas in reaching its decision. The court did not need to address the question of whether the specific offenses of which El Chapo was convicted were specified in the treaty. Article 2 provides that the nations will extradite fugitives who have committed “wilful acts” as defined in the Appendix, including “murder or manslaughter,” “malicious wounding or injury,” and “kidnapping.” The actions of El Chapo’s cartel, which included murder, kidnapping, torture, bribery of officials, and other illegal methods to control territory throughout Mexico and to subdue opposition, clearly fell under the treaty’s provisions. Because step one was satisfied, the court could have stopped its analysis there.
The court, however, spent most of its analysis discussing step two of the proposed framework: waiver of specialty by the requested nation. Mexico “explicitly consented” to El Chapo’s trial in E.D.N.Y. Therefore, the court reasoned, “[t]o the extent that a few of our sister circuits have expressed willingness to entertain a defendant’s specialty argument in the absence of an express waiver by the extraditing sovereign, none of them has done so in the face of such a waiver.” Article 17’s explicit discussion of the requested nation’s consent as a permissible condition for extradition further supported the court’s analysis.
Because Mexico had waived specialty to allow for El Chapo’s trial, the Second Circuit did not need to examine step three—the intent of the signatory nations. However, the circuit court nonetheless briefly discussed the issue of intent in order to firmly reject the defendant’s argument that Barinas was wrongly decided. Quoting Garavito-Garcia and doubling down on that holding, the court wrote that “[a]n extraditee lacks standing to complain of noncompliance with an extradition treaty unless the ‘treaty [contains] language indicating “that the intent of the treaty drafters” was that such benefits “could be vindicated” through private enforcement.’”
The Court, based on the above reasoning, denied El Chapo standing to challenge his trial on specialty grounds.
The subject matter of El Chapo and Assange’s offenses is different. However, given the Second Circuit’s direct examination of the specialty doctrine, the El Chapo case provides a useful analogy to the way the framework might apply in the Assange case if Assange were to be extradited to the United States.
First, El Chapo challenged the harsh conditions of his detention on specialty grounds. In the Assange case, the British courts agreed to extradite Assange after U.S. assurances that he would be detained in acceptable conditions. If U.S. prison conditions prove inhumane, Assange may similarly use the specialty doctrine to challenge the conditions of his detention and invalidate his prosecution.
Second, it remains to be seen whether the United Kingdom would waive specialty to allow Assange to be prosecuted in the United States. Assuming the U.S. government upholds its assurances, it seems more likely that the United Kingdom would waive specialty to preserve diplomatic relations between the two nations. If, however, the United States does not meet its assurances, the United Kingdom may allow Assange to independently challenge his prosecution in the United States.
Lastly, the drafters of the most recent U.S.-U.K. extradition treaty intended to limit exceptions to extradition by, for example, narrowing the application of the political offenses exception. This suggests that the governments were wary of allowing defendants to independently challenge their extradition. Once a defendant is extradited, however, it is unclear whether the signatory nations intended to grant a defendant an independent right to challenge prosecution in the requesting nation. Nevertheless, the Extradition Act analysis in Part III—specifically Congress’s failure to statutorily preclude the right to individual specialty claims—suggests an intent to leave limited room for defendants to bring such challenges. Examination of the drafting history of the U.S.-U.K. treaty would provide further guidance to courts addressing this question.
It is likely that extradited defendants have a private right of action to challenge their prosecution under the specialty doctrine, provided that the challenge is limited to one that the surrendering nation might have brought. Courts have followed certain common steps in handling such cases. This Essay synthesizes these steps into a cohesive test. Despite the rule-based nature of this test, the inclusion of the third factor—which considers the actions and intent of the signatory nations—still leaves flexibility for courts to consider the specific circumstances of the case. This test clarifies the law for both defendants and contracting nations. Although there have been few new developments over the last couple of years, the U.S. government’s pending appeal in Assange’s case and the significant international relations implications of this question may spur courts to definitively act on the issue. The case law makes clear that defendants’ ability to bring individual specialty challenges is dependent, in part, on the intent and actions of the contracting nations. Employing the proposed test suggests that defendants like Assange and Snowden do have, in limited circumstances, derivative personal standing to challenge their American prosecution. This implied right will remain, at least until Congress or the Supreme Court take further action.
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Caitlan M. Sussman is a J.D. Candidate at the University of Chicago Law School, Class of 2022. She received her B.A., summa cum laude, from Cornell University in 2016. The author would like to thank the members of the Law Review’s Online Team for their invaluable comments and edits. She would also like to thank her family for their unconditional support.