Podcast Transcript

12 July 2006
Extradition Treaty

Ambassador Tuttle on the Extradition Treaty

Over the past few weeks, many articles in the British press have made misleading assertions about the 2003 UK-U.S. Extradition Treaty. These assertions have been spurred by UK legal decisions finding the "NatWest Three" extraditable to the U.S. to face trial on Enron-related charges. But the assertions rest on a fundamental misunderstanding of the 2003 Treaty. Far from creating an "imbalance," the 2003 Extradition Treaty corrects a previous "imbalance" and it does so right now, even in the absence of U.S. Senate ratification.

The extradition relationship between the UK and the U.S. is a critical component of our trans-Atlantic law enforcement partnership. For more than 150 years, the U.S. and UK have enjoyed a mutually beneficial extradition arrangement, governed by treaties and grounded upon principles of reciprocity and respect for sovereign equality.

In 2003, the UK and the U.S. agreed it was time to strengthen our extradition relationship. The result was a new extradition treaty that eliminated many of the more cumbersome provisions of the old agreement, thereby modernizing extradition between our two nations. But the Treaty did so without creating any "imbalance" that favors one country over another.

Perhaps most fundamentally, it is simply untrue - as a number of articles have asserted - that under the 2003 Treaty the UK will be required to meet a "prima facie""standard to secure extradition from the U.S., while the U.S. will not have to meet the more stringent standard. In fact, until the UK's 2003 Extradition Act was made applicable to the U.S., it was the U.S. that was required to support each extradition with evidence sufficient to meet a standard of "prima facie" proof. In contrast, the UK needed only submit evidence to the United States sufficient to meet the significantly lower and more appropriate threshold of "probable cause." The 2003 Treaty does relieve the U.S. of having to meet the "prima facie" standard, but it does not in any way increase the obligations of the UK, which will continue only to be required to establish "probable cause." Because of this, the 2003 Treaty has made the relationship more, rather than less, balanced in this regard.

Equally specious is the assertion that the 2003 Treaty has somehow extended the reach of U.S. law enforcement into affairs that are strictly of UK concern. This is simply not so. The question whether an offense meets the "dual criminality" standard necessary for extradition remains a straightforward question of law for the courts of each country. If a defendant in the UK is able to demonstrate that an offense charged in the U.S. concerns extraterritorial conduct that would not also be considered criminal in the UK, the UK court may deny extradition. That was the case prior to the 2003 Extradition Act, remains so now, and will continue under an explicit provision to that effect in the new treaty.

Nor is there any truth to the assertion that the UK has continued to extradite individuals to the U.S. since 2003, while the U.S. has denied extradition to the UK. To the contrary, the U.S. has honored every extradition request that the UK has made since 2003. Of the 22 fugitives whose extradition has been requested in that period, 13 have already been returned, another will be returned shortly, and two are serving prison sentences in the U.S. All of the remaining cases are being actively pursued by the U.S., working closely with U.K. authorities. These individuals are charged with a range of serious offenses in the U.K., including homicide, kidnapping, fraud, rape and sex offenses, including sex offenses against children.

Finally, it is not the case, as some have argued, that the U.S. has somehow sought to "have it both ways" by not ratifying the 2003 Extradition Treaty. The Bush Administration has strongly supported ratification of the Treaty. Under the U.S. Constitution treaties must be approved by the U.S. Senate. While this sometimes leads to delays in ratification - even of treaties with our closest allies - Deputy Attorney General McNulty made clear to Baroness Scotland in their meeting last month in London that the Bush Administration remains committed to bringing the treaty into effect as soon as possible.

We look forward to ratification of the Treaty. The reciprocal benefits it provides to both treaty partners are beyond question. Of equal importance, the Extradition Treaty is entirely consistent with our long history of shared values, and is a model of fairness and respect for law.

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