Extradition as Foreign Policy





Daniel S. Margolies is Professor of History at Virginia Wesleyan College and author of the forthcoming Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877-1898, which will be published by the University of Georgia Press in spring, 2011.  He can be reached at dmargolies@vwc.edu.

A couple of prominent extradition cases have been sprawled across the headlines this summer, the famous and now resolved case involving film director Roman Polanski, and the ongoing and highly charged case involving accused Russian arms dealer Viktor Bout, who is about to be surrendered to the United States by Thailand after bedeviling policymakers for twenty years.  A casual observer would be forgiven for having the impression that the international hullaballoo over the surrender of these two fugitives from justice had something actually to do with questions of justice.

But the long arm of the law and the long arm of state interest in fact work for a single united purpose, as they have since extradition was adopted as a foreign policy in the second half of the nineteenth century.  Though seemingly straightforward, the surrender of a fugitive across international boundaries welcomes a malleable exercise of state power which has historically obscured considerations of justice everywhere.

Surrender demands and the overall system of international extradition by which fugitives are returned to the sovereign jurisdictions in which they are charged remains as limited and as inseparable from issues of state power and interest today as they were when modern extradition was first pioneered by the United States as an instrument of foreign policy power in the latter half of the nineteenth century.  If sovereignty and the exercise of power were at all to be made compatible with abstractions of justice and order, extradition proved to be an ideal solvent.

The U.S. led the world in the number and variety of new extradition treaties in the formative years of the nineteenth century.  U.S. policymakers understood that shaping the mechanics of international fugitive exchange through a distributed network of treaties had a critical role to play in bringing global interactions into congruence with American unilateralist impulses and interests.  As a function of growing hegemony since that time, it has had a steadily increasing impact on global understandings of sovereign jurisdiction, extraterritoriality, and fugitive exchange.

When its interests have been challenged in some way, the U.S. has shown itself very willing to stop extradition altogether and not worry about fugitive flight.  After a bruising extradition fight with Britain in the Thomas Nash (or Jonathan Robbins) case after the Jay Treaty of 1794, the United States refused to extradite anyone for a half century.  From the 1870s through the 1890s it periodically refused to sign extradition agreements or to extradite citizens to a wide variety of different states including Great Britain, Belgium, Italy, and Mexico, based entirely on political objectives and a strong sense of sovereign unilateralism and minimally or not at all on issues of justice.  There is today a sense of human rights which seems to push extradition into a rarefied realm but justice remains secondary at best, and usually nothing more than rhetorical drapery. 

The Polanski story was a relatively simple issue of the limits of extradition based on state interest, in this case reflective of Switzerland’s strong sense of sovereignty.  The case only seemed complicated (and only got such wide notice) because it was saturated with so much raw celebrity.  Polanski is an internationally recognized and Oscar-winning filmmaker despite fleeing from his guilty plea to having illegal sex with a thirteen-year-old girl in California in 1977.  Carefully skirting countries that had tight extradition agreements with the United States, Polanski remained free until being arrested by surprise in Switzerland. 

Polanski was ultimately released in July because Switzerland was not satisfied with the documentation supplied by the United States.  The Swiss Justice Minister Eveline Widmer-Schlumpf, as quoted by CNN, was very careful to note that this decision had nothing at all to do with justice, but everything to do with process:  "It's not about qualifying the crime.  That is not our job.  It's also not about deciding over guilt or innocence."  Switzerland had a treaty to interpret as narrowly as it chose to, and Polanski was set free.  Because of the odd limits to extradition regimes, the U.S. cannot even request extradition again any time in the future.  Nobody (including Polanski) challenges his original guilty plea; the issue is entirely one of Swiss autonomy to ignore justice if it so desires.

Extradition is a unique transnational system which links the justice systems of two countries for the limited purpose of the exchange of fugitives, and it is always open to state intervention.  Surrender demands never include or require consideration of guilt, only adherence to a negotiated standard of exchange which is established in a treaty.  Extradition remains governed fundamentally by a wide array of political, diplomatic, and economic interests.  Extradition regimes encourage the establishment of fluid legal spaces within international relations that are carefully calibrated to interest and larded with protections of state autonomy. 

The case of Viktor Bout is even more interesting in this regard, especially as the details of his rendition to the United States have now been revealed on the front page of the New York Times (“An Arms Sales Suspect, Bargaining With Secrets,” 29 August 2010).  Bout is an accused global arms dealer whom the U.S. has wanted to have under its jurisdiction (and to pump for information) since the Clinton administration.  At that time, according to the New York Times, administration officials had plans to abduct him and render him to another country like Belgium or South Africa.  This type of extraterritorial abduction is commonplace to us today as “extraordinary rendition.”  Extraterritorial abduction in lieu of extradition has in fact been entirely constitutional in the United States since the astonishing 1886 U.S. Supreme Court case Ker v. Illinois.  Upheld and reinforced numerous times by subsequent case law in the past fifty years, this critical case established deep and global illegality as a perfectly acceptable American policy tool.

In Bout’s case, such abduction was ultimately not done (leaving him free even to game the U.S. occupation in Iraq) and finally has not been necessary.  Thailand has agreed to render this accused arms dealer to the United States authorities rather than to Russia (which offered only cheap oil) in exchange for a deal said to include American “military hardware.”  A coveted arms dealer is horse-traded for weapons and the wheels of justice churn on.

Many if not most of the extralegal exceptions and excursions carved by the United States as part of its “War on Terror” have in fact been enshrined in law and practice in critical but lesser-known systems like extradition since shortly after the Civil War.  Sovereign exception underlies the U.S. approach to legal questions in everything from “extraordinary rendition” (in the Orwellian language of the Bush II and now Obama administrations) to the ongoing detention of so-called enemy combatants in legal limbo in Guantanamo to the constant and extralegal killing of presumed fugitives by drone aircraft.  Rhetoric remains a thin cover for the realities of extralegal power. 


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Andrew D. Todd - 9/8/2010

In Ker v. Illinois, The American Supreme Court concluded:

"It must be remembered that this view of the subject does not leave the prisoner, or the government of Peru, without remedy for his unauthorized seizure within its territory. Even this treaty with that country provides for the extradition of persons charged with kidnaping [sic], and, on demand from Peru, [U. S. Government Agent] Julian, the party who is guilty of it, could be surrendered, and tried in its courts for this violation of its laws. The party himself would probably not be without redress, for he could sue Julian in an action of trespass and false imprisonment, and the facts set out in the plea would without doubt sustain the action..."

http://en.wikipedia.org/wiki/Ker_v._Illinois
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&;vol=119&invol=436

Julian had not in fact behaved with outrageous illegality. He had arrived in Lima, Peru, in 1883, bearing a warrant addressed to the Peruvian government, for the extradition of the defendant, one Frederick M. Ker, pursuant to an existing extradition treaty. Once there, Julian had applied for assistance to the de-facto government of Lima, Peru, that is, the occupying Chilean military. While he had not formally submitted his warrant, he had doubtless shown it informally, without asking the Chilean commandant to countersign it. The Chilean military had effected the arrest, and delivered Ker to an American ship. It seems probable that every other merchant in Lima must have collaborated with the Chilean occupation to a similar extent as Julian had. A Peruvian request for the extradition of Julian would presumably have created internal political difficulties for the Peruvian government, and was therefore unlikely.

http://en.wikipedia.org/wiki/War_of_the_Pacific

Frederick M. Ker, had been the confidential clerk of a Chicago bank, who had diverted money, something like $50,000 [gold, say two-and-a-half-million in modern money], under his control, to his own financial speculations, and lost it. He got ten years in prison. Ker's defense was apparently paid for by the people to whom he had lost the money, doubtless out of a concern that if not propitiated, he might name them as accessories before the fact. Likewise, these same people may very well have enabled his sudden departure to South America in the first place. At a certain level, the case was really about whether these people would be obliged to refund the $50,000 to the bank.

"Frederick M. Ker Stays in Jail," New York Times, Sept 25, 1883
http://query.nytimes.com/gst/abstract.html?res=F3081FF9385F15738DDDAC0A94D1405B8384F0D3
http://query.nytimes.com/mem/archive-free/pdf?res=F3081FF9385F15738DDDAC0A94D1405B8384F0D3

"TEN YEARS IN THE PENITENTIARY," New York Times, Nov. 18, 1883
http://query.nytimes.com/gst/abstract.html?res=FB0A1EFF3B5F15738DDDA10994D9415B8384F0D3
http://query.nytimes.com/mem/archive-free/pdf?res=FB0A1EFF3B5F15738DDDA10994D9415B8384F0D3

Both have datelines the previous day, at Chicago, no doubt having first been published in the Chicago papers and copied by the New York Times.


Arnold Shcherban - 9/6/2010

Thanks, Professor for your informative
and sharp analysis.