The problem is not that the US has not ratified

I wrote about the US-UK extradition treaty on seven months ago

Now that it is in the news again, I want to to be very clear about the problem with this treaty. The problem is not that the US Senate has not ratified the treaty, nor is that the treaty lacks reciprocity.  Those are both red herrings.

The problem with this treaty – whether or not the Senate ratifies it – is that it allows a person to be extradited from the UK without presentation of prima facie evidence against them. 

The reason that the treaty cannot be reciprocal is that American courts, quite rightly, would not permit their citizens to be treated this way.  It would breach the US Bill of Rights to extradite citizens without evidence.

So the problem will not be solved by having the treaty ratified by the Senate, as the UK Government seems to think.  Even if it were ratified, it would still not be symmetrical. Nor is the lack of reciprocity the problem in itself, though it is a clue to what is wrong. The problem is that the treaty obliges the UK government to violate a person's rights without the presentation of evidence against them.  Even if the US Government could reciprocally abrogate the rights of its citizens in the same way – and we should be thankful that they cannot – it would still be wrong.

6 thoughts on “The problem is not that the US has not ratified”

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  3. I got interested on this issue in your dad’s blog.   It took a while for the info on the thing to reach us, last issue of the Economist to be exact.    There is a confusion of terms here.  A prima facie case is one in which the evidence and testimony presented in court would be sufficient to convict the party of the crime if no defense were offered.  Probable cause  is sufficient evidence to indicate that a crime was committed and the party is likely to have committed it.   Under the US Constitution, probable cause is necessary and sufficient  for warrants and indictments.    Under the old treaty,  I understand that the US was bound to present a prima facie case to extradite.   The UK needed only probable cause, the necessary requirement of the US Constitution which is applied to all persons in the US.   The new treaty seems to have equalized the requirements on both countries.

  4. Carl

    I think your analysis of "probable cause" and "prima facie" is correct. 

    Furthermore, it is not the treaty that is the problem, but the 2003 Extradition Act.

    The Extradition Act (which received Royal Assent in November 2003) is not linked to directly to this or any other treaty. Under the 2003 Act, no evidence is required to support a request for extradition from EU states.  Other ("Category 2") states are designated by the Home Secretary.   For these countries, prima facie evidence is required, unless the Home Secretary uses powers under section 84(7) to dispense with this requirement in respect of states designated for the purposes of that section. An order designating the USA has duly been made under this section.  That means that the US is not required to provide any evidence whatsoever – not prima facie, not probable cause – for a suspect to be extradited from the UK.  

    The UK is required to show probable cause for any extradition request from the United States, as required by the US constitution. 

    As I said earlier, it is not the asymmetry that worries me.  It is that we can deprive someone of their liberty by extraditing them without requiring evidence to do so.  The US Constitution is right to protect its citizens from this; and we should similarly protect ours.


  5. Well, all  warrants in the US require probable cause, including arrest warrants.    The US uses the grand jury system at the federal level.   Prosecuters to gain a felony indictment must request it from a citizen grand jury, a body that sits for a considerable term.   The jury evaluates his evidence and issues a ‘true bill’, or no true bill as the case may be.    So there is a sort of a independent review of the prosecutor’s case.    Not all our states use it.

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