"other international agreements." This addition is intended to reach such things as conventions and multilateral treaties relating to extradition as well as bilateral treaties. It is necessary to include this additional language in light of the United Nations conventions, which the United States has ratified, concerning the giving of assistance in narcotics and skyjacking cases. Furthermore, the United States has negotiated a multilateral extradition treaty with the Latin American countries which is to take effect upon the abrogation of existing bilateral treaties with these countries. It is expected that, in the future, the United States will enter into other multilateral extradition treaties. It is therefore important that the language throughout this subchapter clearly states that the provisions of this subchapter are applicable as long as the above referred to United Nations conventions or multilateral extradition treaties are in existence. Thus the term "treaty or other international agreement" is used commonly in this subchapter. Subsection (b), which is based upon current 18 U.S.C. 3181, changes circumstances under which extradition may be had in the case of a conviction in absentia. A person will not be extradited if he was convicted in absentia, unless (1) the demanding government assures the Attorney General that the proceeding will be reopened upon the request of the person to be surrendered; or (2) the person fled after having been present when his trial commenced. This provision conforms to policy set by the Department of State and which has generally been followed by our courts.10

Subsection (d) is also new and is deemed necessary as a result of the Supreme Court decision in Valentine v. United States ex. rel. Neidecker where the Supreme Court found that the provisions of an extradition treaty then in force between the United States and France did not permit the Secretary of State to surrender United States citizens. The Court, in that case, held that there is no independent executive discretion to surrender an individual to a foreign government, unless such discretion is granted by law. In that case the treaty simply stated that a contracting party was not "bound to deliver up its own citizens or subjects under the stipulation of this convention." The Court held that this language did not give the executive the needed authority to turn over United States citizens to foreign countries.12 The court stated that it was not enough that a statute or treaty did not deny the power to surrender, there must be some statute or treaty which confers the power. 13

At present, there are numerous extradition treaties which contain language similar to that in the French treaty concerning the surrender of citizens, and since the process of obtaining new extradition treaties is slow and tedious, it is necessary that the Secreteary of State or some other executive officer be permitted to authorize the extradition of United States citizens under the provisions of treaties which have yet to be modernized. Subsection (d) grants this authority by providing that in those cases where the extradition treaty or other in

10 See Gallina v. Fraser, 177 F. Supp. 856 (D. Conn. 1959), where the court refused to grant a petition for habeas corpus even though the petitioner had been tried and convicted in absentia and faced immediate incarceration when extradited. Although the Court of Appeals for the Second Circuit affirmed (278 F.2d 77 (2d Cir. 1960)), the court was aware of the Department of State's requirement that Italy retry such person. 278 F. 2d at 78. The Supreme Court denied certiorari in this case, 364 U.S. 851 (1960).

11 299 U.S. 5 (1936).

12 Id. at 18.

13 Id. at 9.

ternational agreement provides that the United States may extradite its own citizens, but does not require such extradition, the Secretary of State has authority to authorize the extradition of a United States citizen or national who has been found extraditable pursuant to the provisions of this subchapter.

SECTION 3212. EXTRADITION PROCEDURE

This section is based in large measure upon 18 U.S.C. 3184, 3187, and 3190, and sets forth the procedure for extradition. Subsection (a) is based upon 18 U.S.C. 3184 and sets forth the procedure to be used to initiate court proceedings. The Attorney General, acting pursuant to the provisions of a treaty or at the request of the demanding government or such other person authorized by the demanding government, must file a complaint with a court of the United States or a magistrate specially authorized by a court of the United States. The complaint must be under oath and it must charge that a person believed to be within the jurisdiction of the court has committed, within the jurisdiction of a demanding foreign government, an offense enumerated in an applicable extradition treaty or other international agreement. Filed with the complaint must be those documents required by the applicable treaty, a copy of the diplomatic note to the Secretary of State requesting extradition along with the acknowledgement from the Department of State of the note, and a copy of the applicable treaty or other international agreement. Upon the filing of the complaint with the appropriate documents, the court or magistrate may issue a warrant for the arrest of the person charged. When the person is arrested, he is to be brought before either the court issuing the warrant of arrest or to the nearest Federal district court. The court to which the person is first brought is designated as the court to conduct the extradition hearing. If that court is other than the one that issued the warrant of arrest, the complaint and other documents are to be forwarded by the issuing court to the court which is conducting the hearing.

Paragraph (3) of subsection (a) makes it clear that the person to be extradited, upon his arrest, is to be brought before either the court. issuing the warrant of arrest or to the nearest Federal district court. This is intended to resolve some ambiguity under the current law.14

Subsection (b) provides for arrest without documentation, popularly known as provisional arrest, the purpose of which is to cause the expeditious arrest of a fugitive who may flee before the requisite documentation is received. Such arrests are normally sought for fugitives who are passing through one nation to another in flight or in continuation of their criminal activities. Although present 18 U.S.C. 3187 does not authorize the provisional arrest of fugitives from foreign countries in the United States, most extradition treaties provide such authority, and the Committee believes it to be appropriate to authorize such arrests without documentation.

The language in paragraph (1) of this subsection makes it clear that a provisional apprehension does not occur until after a court of the United States or a specially authorized magistrate issues a warrant

14 See, e... Shapiro v. Ferrandina. 478 F.2d 894 (2d Cir.), cert. denied, 414 U.S. 884 (1973). where the court ruled a fugitive arrested in the Eastern District of New York can be returned to the Southern District of New York in an extradiction hearing. The Supreme Court in Pettit v. Walshe, 194 U.S. 205 (1904), ruled to the contrary.

for the provisional apprehension of the person sought. This should clear up some apparent confusion in this area.15 Paragraph (2) sets forth what the complaint is to contain. It must: (1) state that a warrant of arrest or order of detention exists for the person in the foreign nation; (2) specify the offense for which extradition is being sought; and (3) describe the circumstances that necessitate such arrest. In addition, if the complaint is not filed by the Attorney General, notice of the intention to make the complaint must be given to the Secretary of State.

Paragraph (3) of subsection (b) provides that the limitation period established under the treaty for the presentation of the required documents will be tolled once the documents are presented to the Secretary of State. While the failure to present the documents within the period prescribed in the treaty authorizes the court to release the person from official detention, such release will not terminate the proceeding and the person may again be taken into custody once the documents are properly presented.

Subsection (c) of this section provides that a person arrested under the provisions of subsection (a) is to be held in official detention until the completion of the extradition process unless good cause for his release is presented to the court. In regard to this subsection, the Committee wishes to emphasize that the privilege of release on bond should not automatically be granted to fugitives from foreign countries because this country has a treaty obligation to see that fugitives are surrendered. Courts should grant release to such fugitives only upon the showing of compelling reasons and, when they do grant release, the subsection requires that the fugitive must post appropriate security and surrender any travel documents, including a passport or a visa, in his possession. In addition, the court is directed to impose appropriate restrictions on the fugitive's movements.

Paragraph (2) of this subsection provides that a person provisionally arrested under subsection (b) shall be held in official detention for the period specified in the applicable treaty or international agreement or for ninety days whichever is less. Only if unusual cause is shown, may a court release such a person, and, if release is granted, it must be granted under the restrictions set forth in subsection (c) (1). Once the Secretary of State receives the documents specified in subsection (a), the person arrested is also subject to the provisions of subsection (c) (1). The provisions of subsection (c) are not new but are merely a codification of policies that have been followed by our courts for many years.

16

Subsection (d) provides that a person may not be extradited unless a hearing is held in which his extraditability is established or such a hearing is waived pursuant to section 3215. Paragraph (2) of subsection (d) enumerates specifically the requisites for a finding of extraditability. These requisites are self-explanatory and have been followed generally by the courts.17 They include, inter alia, findings that the treaty is in full force and effect, that the offense is an enumerated offense in the treaty, that a warrant of arrest is outstanding, that the

15 See In re Chan Kam-shu, 477 F.2d 333 (5th Cir.), cert. denied, 414 US. 847 (1973). 16 See Wright v. Henkel. 190 U.S. (1903): In re Gannon, 27 F.2d 362 (E.D. Pa. 1928). 17 Ornelas v. Ruiz, 161 U.S. 502 (1896); McNamara v. Henkel, 226 U.S. 520 (1913).

person sought and the person arrested are identical, and that evidence exists that establishes probable cause to believe that the person has committed the offense charged.

Subsection (d) (3) provides that defenses to extradition are limited. to those provided by the applicable treaty or other international agreement, or by international law.

Subsection (e) (1) provides that extradition may be established through documentary evidence alone. This provision, is in accord with established case law.18

Subsection (e) (2), while based on 18 U.S.C. 3190, makes one significant change in the procedure currently followed in order to permit certification of documents presented in evidence at an extradition hearing to be made by officers other than the United States ambassador or chief consular officer in the country requesting extradition. Under subsection (e) (2) (C) the certification can be made by any diplomat or consular officer of the United States assigned to the foreign country. Moreover, a certification of the diplomat or consular officer's signature at the Department of State, which is also required by subsection (e) (2), insures that all extradition documents prior to their submission to the court will be reviewed to some extent by the Department of State. The Committee has been informed that such is not always the case today.

Subsection (e) (3) provides that a certificate or affidavit by the Secretary of State concerning the existence of a treaty or other international agreement, and concerning its status and effect, is admissible as evidence and is conclusive proof of such matters. Furthermore, a certification or affidavit by the Secretary of State concerning the interpretation of a treaty or other international agreement is admissible as evidence at the hearing although, of course, such interpretation is not binding on the court.

Subsection (e) (4) provides that hearsay evidence is admissible to establish probable cause that the person sought has committed, or has been convicted of, the alleged offense. Such probable cause may be established by hearsay evidence alone.

Subsection (f) is designed to clear up any confusion as to whether Federal or State law is to be controlling in determining whether the offense alleged is one enumerated in an applicable treaty or other international treaty and thus is an extraditable offense.19 Subsection (f) provides that a treaty offense may be extraditable if it is either a Federal offense or is generally considered to be a crime under the criminal laws of the several States. The test to be applied is whether the basic elements of the offense in question compare substantially to the basic elements of either a Federal or State offense. In addition, it provides that the Federal statutes of limitations, as set forth in section 511, are applicable, and not State statute limitations. Furthermore, the Federal Rules of Criminal Procedure are specifically made inapplicable to this subchapter.

Subsection (g), while based on current 18 U.S.C. 3184, sets out in greater detail the procedures a court must follow if they find the person extraditable under subsection (d) (2). If the court finds the evi

18 Bingham v. Bradley, 241 U.S. 511 (1916).

19 See Collins v. Loisel, 259 U.S. 309 (1922); Garcia-Guillern v. United States, 450 F.2d 1189 (5th Cir. 1971), cert. denied, 405 U.S. 989 (1972).

Section 3213.

Section 3214.

dence sufficient to sustain the charge under the provision of the applicable treaty or other international agreement, it is required to certify the record of the proceeding, including the finding as to extraditability on each charge for which extradition was requested, to the Secretary of State.

Subsection (g) (2) provides that if the court finds the evidence presented to be insufficient to sustain one or more of the charges, it must state the reasons for its findings as to each such charge and certify those findings to the Secretary of State. Subsection (g) (3) goes on to provide that a person found to be extraditable is to be committed to the custody of the Attorney General until such time as he is surrendered to a duly appointed agent of the demanding government or until the Secretary of State declines to issue a warrant of surrender.

SECTION 3213. WARRANT OF SURRENDER

Subsection (a) of this section is based, for the most part, on 18 U.S.C. 3186. Upon receipt of the record of the extradition proceeding, the Secretary of State is authorized to issue a warrant of surrender for the person at the request of the proper authorities of the demanding government. The Secretary of State is required to issue the warrant of surrender for the person within thirty days of his receipt of the record of the proceedings unless an appeal is taken by the person sought and a stay is granted by a court having jurisdiction.

Subsection (b) parallels some of the provisions of 18 U.S.C. 3193. It provides that a designated agent of a foreign nation who is in possession of a warrant of surrender is authorized to hold the surrendered person in his custody and safekeeping in any State through which it may be necessary for him to pass with the surrendered person en route to the nation to which extradition has been ordered.

Subsection (c) carries forward the provisions of 18 U.S.C. 3188. A foreign nation seeking the extradition of a person has sixty days, plus the time actually required to convey the person expeditiously out of the United States, to extradite a person committed under section 3212(g) (3). If the execution of the warrant of surrender is stayed by an appellate court, the time of the stay is not counted against this time limitation. If the time limitation for the removal of a person is exceeded and the person has given reasonable notice to the Secretary of State of his intention to apply for release, a court may order the person's release unless good cause is shown why such person should not be released.

Subsection (d) prohibits an appellate court from staying the execution of a warrant of surrender unless good cause is shown. The Committee believes that this provision is necessary since on occasion the Secretary of State has been embarrassed by actions of our courts in staying surrender after he has delivered his surrender warrant to a foreign ambassador.20

SECTION 3214. WAIVER

This section is new, and it provides a procedure whereby a person who is arrested for extradition to a foreign nation may waive the requirements of formal extradition. In view of the time-consuming ex

20 See Shapiro v. Secretary of State, 499 F.2d 527 (D.C. Cir. 1974).