Consider the following situation. An investment banker embezzles millions of dollars from a bank in Italy and transfers the funds to an account in the United States. While he is vacationing in the United States, federal marshals apprehend him pursuant to a request by the Italian government. They bring him before a federal district court judge sitting as an extradition magistrate in the local federal courthouse. After determining that the evidence presented meets the requisite level of criminality, the judge declares that the banker is properly extraditable and binds the case over to the Secretary of State.
The President, however, wishes to express his displeasure with Italy's failure to lend assistance during a recent military maneuver. He sends a memo to the State Department indicating that the banker should not be surrendered to Italy. So as not to embarrass high-ranking officials of the Italian government, the Secretary of State issues a statement specifying that the extradition magistrate incorrectly concluded that sufficient evidence of criminality existed.
From the perspective of the hypothetical banker and other individuals accused of committing crimes in foreign jurisdictions, the prospect of this type of executive reprieve would seem a welcome possibility., Recently, though, one individual awaiting extradition from the United States successfully argued in federal district court that the possibility of such review violated accepted principles of separation of powers. Specifically, he argued that the statute governing extradition afforded members of the executive branch the opportunity to review and revise decisions of federal judges sitting as extradition magistrates. While this position has not been adopted in other jurisdictions, it has created uncertainty in current extradition proceedings and has affected the negotiation of several extradition treaties. Moreover, in light of the fact that the statute is nearly one hundred fifty years old, a finding of unconstitutionality was novel and unexpected. Because the opinion declaring the extradition procedure unconstitutional was later vacated at the appellate level for lack of jurisdiction, the appellate court did not reach the issue of whether the procedure violated separation of powers, essentially leaving this an open issue for subsequent consideration. This Note will endeavor to undertake such a consideration.
Matthew M. Curley,
Untying a Judicial Knot: Examining the Constitutional Infirmities of Extrajudicial Service and Executive Review in U.S. Extradition Procedure,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss5/3