Extradition is a process with origins going back to humanity's earliest legal systems. It is the process of one state surrendering an individual to another state for prosecution or punishment for crimes committed in the requesting country's jurisdiction. It is typically accomplished pursuant to treaty and the United States has treaties with more than 100 countries. The most recent statistics indicate that there are some 350 to 600 extraditions to the United States each year. The explosion in the digital age of cross-border crimes makes efficient cooperation ever more important, especially with respect to terrorism, drug trafficking and cybercrime.

At the same time, countries must respect the sovereignty of other nations in requesting extradition and must be certain that requests are made in good faith and for criminal acts that meet the requirements of international law. This article sets out the basic process for obtaining extradition to the United States and reviews certain recent cases in which I have served as an expert, which suggest that the United States is trying to leverage its political power to bring defendants to the United States either to fulfill political agendas or where the United States' interest is tangential at best in view of the demonstrable interest of other countries.

The Extradition Process

Extradition to the United States begins with a request from federal or state prosecutors to the Office of International Affairs (OIA), a low-profile but extremely powerful organization within the Criminal Division of the Justice Department. OIA examines whether certain requirements are met. One critical requirement is that extradition is not sought for "a political offense, that is an offense which is an offense against the interests of the state only, such as espionage, sedition or treason. These are viewed as "pure political offenses," which do not involve violence or other ordinary crimes that are politically motivated. Peacefully attacking the policies of Country A is not a ground for extradition to Country B; blowing up a government building in Country A to protest its policies generally would be grounds for extradition. A second key requirement is "dual criminality," that is, the conduct charged is recognized as a crime in both the requesting and requested country. Third, the prosecution must be the "principle of specialty," that is, the prosecutor does not intend to charge more and different crimes when the defendant is sent to the United States. OIA also checks whether there is a capital charge, as many countries will not extradite to face charges that carry the death penalty. The Justice Department may also seek the provisional arrest of the defendant in the requested country pending extradition proceedings.

OIA forwards the request to the State Department, which then transmits that request to diplomatic authorities in the requested country for extradition proceedings to be commenced. The requested country need not be the country of residence of the defendant and the United States often waits until a defendant arrives in a third country that is more amenable to requests than the defendant's home country. The requested country will undertake a review, the standards and intensity of which may vary greatly depending on the requested country. The defendant can challenge the extradition through the courts of the requested country. Once there is a final, non-appealable decision regarding a U.S. extradition request, the requested country will notify the U.S. government and if granted, arrangements will be made for transfer.

Uses and Misuses of Extradition by the United States

The overwhelming majority of extradition requests raise no significant issues. Many are drug cases or violent crimes where defendants flee. The recent extradition of El Chapo fit that model. The crimes were significant, universally recognized as malum in se acts and they occurred or had inarguable impact in the United States. These crimes involved grotesque violence, homicide, money laundering, narcotics trafficking over decades. There was no question that the United States had a significant interest in prosecuting El Chapo.

Yet the case of Julian Assange, in which I serve as an expert, presses the boundaries between universally recognizes crimes and the use of the criminal law for political purposes. After the Obama administration declined to prosecute, the Trump administration charged Assange with 17 counts under the Espionage Act and one count of conspiracy in connection with the publication of the Chelsea Manning documents. He faces a potential 175 years in prison. The United States had never in more than a century of its existence used the Espionage Act to prosecute a third-party publisher of national security information.

Instinctively, one might conclude that harming the national interest of the United States should be an extraditable offense. And Assange has been attacked by current and former government officials as "a traitor," "treasonous," and "running a non-state hostile intelligence agency." Of course, Defense Secretary Robert Gates said at the time of the 2009 Wikileaks publications for which Assange was charged, "Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest." The most controversial publication was a video of U.S. troops in Iraq shooting unarmed civilians—precisely the sort of government misconduct that should not be shielded from accountability by spurious and facile claims of national security.

But even if the damage to national security was significant, does a foreign national outside the United States owe duties of loyalty to the United States and does a third country have an obligation to assist in the enforcement of those duties? Before answering the question, consider a number of hypotheticals involving countries with which the UK has extradition treaties. Suppose Mr. Assange published Russian plans to invade additional portions of Ukraine or to launch further Novichok chemical attacks on dissidents in Western Europe; suppose Mr. Assange published the Modi government's plans for the subjugation of Kashmir and mass arrests and torture of Kashmiri activists; suppose Mr. Assange published emails between President Erdogan and President Trump regarding attack plans against defenseless Kurdish civilian populations. Suppose each of these governments demanded that Mr. Assange be extradited to face charges. All of these countries have treaties with the UK. Would the UK be obligated to extradite? The answer, in my view, is plainly no—not because the UK thinks American secrets are more important or more worthy of protection, but because each of these offenses would be, just as the Espionage Act offenses charged in this indictment—pure political offenses, offenses involving state interests only.

I also have served as an expert in an Iran sanctions case, where an Iranian national living in Iran purchased garden variety personal computer equipment but maintained that he was purchasing the equipment for resale in Dubai rather than Iran and used U.S. payment systems for the transactions. Under Iranian sanctions currently in place, virtually all consumer transactions between the United States and Iran are prohibited by sanctions. The defendant was provisionally arrested for the sanctions breach in London. In the UK, there are no such restrictions on selling consumer goods into Iran and indeed there is an EU blocking statute. The statute applies to U.S. sellers. The U.S. computer sellers were not charged but the Iranian national was charged with conspiring with U.S. persons in a sanctions breach.

The Iranian sanctions program is one of the most draconian of sanctions programs and reflects an effort to enforce important foreign policy goals to create economic pressure on the government of Iran. Again, however, it reflects uniquely and distinctive U.S. policy goals, not universal criminal norms. Here again, the United States seeks to enlist a third country to extend the reach of its statute extraterritorially and enlist another government to send an Iranian national who has never been to the United States to face trial in an American court under a statute that prohibits Americans from doing any sort of business with the United States. Again, the United States appears to be acting aggressively to enforce its laws against individuals outside the United States when the conduct is primarily extraterritorial and the norm to be protected is fundamentally political.

A final case involves a hedge fund in the Cayman Islands, operated primarily from Dubai and London by non-U.S. nationals that had investors around the world, including in the United States, and with investments in emerging markets countries. The funds hit certain liquidity issues and were placed in provisional liquidation in the Cayman Islands. The United States brought RICO indictments based on a few investor meetings in the United States, despite the fact that the vast majority of the conduct alleged was foreign in nature; the provisional liquidation is well on its way to paying investors and the U.S. indictment alleges a scheme to bribe public officials in Pakistan, which would not be a tenable charge in the United States. While Dubai, Pakistan, the Cayman Islands and England may have interests here, the United States is attempting to extradite from England to New York. Here again, there is the question of whether the United States should be using extradition to assert a role as the world's policeman.

Eric Lewis is senior partner at Lewis Baach Kaufmann Middlemiss.