Review of the Office of International Affairs' Role
in the International Extradition of Fugitives
Report Number I-2002-008
CRIMINAL DIVISION MANAGEMENT'S RESPONSE
|U.S. Department of Justice
|Assistant Attorney General||Washington, DC 20530
February 5, 2002
|FOR:||Paul A. Price
Acting Inspector General for Evaluations and Inspections
Office of the Inspector General
Assistant Attorney General
|SUBJECT:||Comments on OIG draft report A-2000-21, regarding the Office of International Affairs|
This memorandum responds to your request for comments on draft Report A-2000-21, concerning the Office of the Inspector General's Review of the Office of International Affairs' Role in the International Extradition of Fugitives. In addition to the general comments set out in this memorandum, I have attached detailed comments and proposed revisions to the draft report prepared by the Office of International Affairs.
At the outset, it should be emphasized that we have no significant disagreement with the recommendations of the Office of Inspector General set forth on page 34 of the report. To the contrary, the Office of International Affairs has already undertaken a number of changes in its management procedures, some resulting from an internal review of the overall responsibilities and operations of the office, and others based upon some very practical recommendations made by the Office of the Inspector General in this report.
However, we disagree with a number of the report's findings. Our concerns regarding this report are rooted in three basic areas. First, and most importantly, the report fails to address the context in which OIA's responsibilities relating to extradition matters must be reconciled with other critical duties and responsibilities of the office. The demands of extradition cases are a priority for the Office of International Affairs, but they are not the only priority. To accurately assess OIA's role in the extradition process, the report must at least consider the overall responsibilities of the office, including the mounting demands of mutual legal assistance requests, the negotiation and implementation of bilateral and multilateral treaties and agreements and other areas (all of which occupy the majority of resources and time of the office). While these areas of responsibility are not the focus of this report, failure to consider their impact on the office as a whole can lead to a flawed analysis of how the extradition process is being addressed. Over the last ten years, the strain on OIA's resources has steadily increased, and until the end of this year, has gone unaddressed. While resource considerations do not excuse many of the case management deficiencies cited in the report, they cannot be ignored as a factor exacerbating the office's mounting backlog of pending cases. Proposed text that would provide some context for the main body of the report is attached.
Second, a significant component of the report contains conclusions of the inspection team that action taken by OIA staff in six extradition cases was deficient. While we do not argue that action in some of the cases reviewed may have been deficient - the most common deficiency being the failure to close moribund cases - some very negative conclusions reached in at least three of the examples set out in the report seem to reflect some fundamental misconceptions about the nature of the international extradition process on the part of the inspection team.
Third, we believe some of the figures in the report are incorrect and need to be reconciled before the report is finalized. In addition, we suggest a few technical changes.
Finally, we request that you redact the names of foreign countries cited in the specific case examples in the report. Correspondence with foreign countries on extradition cases is generally treated confidentially, and in instances where the foreign country appears to have been unresponsive, we would not want to embarrass that country, particularly since the identity of the country is not important to the issues raised in the report. Moreover, some of these may be open cases and it would be prudent to delete the reference to the specific country involved so that details of the specific cases are not inadvertently disclosed.
I am available to meet at any time with representatives of the Office of the Inspector General in order to further discuss the matters described in the annex to this letter.
| Tab A:
|OIA comments on proposed recommendations|
OIA comments on proposed findings
Table of new and pending mutual assistance cases, 1990-2000
While the Office of International Affairs disagrees with a number of the draft reports findings (see Tab B), OIA concurs in the general recommendations set out on page 34 of the draft report. OIA is currently in the process of reviewing its policies and procedures with regard to extradition requests and will focus on some of the very practical recommendations made by the Office of the Inspector General in this report.
As a first step in this review process, a complete file review has begun of the thousands of pending cases and matters in OIA. This is an enormous undertaking, and will take a considerable amount of time, particularly in light of the current strain on OIA resources. As noted in our comments on the report's proposed findings, requesting and responding to requests for the international extradition of fugitives constitute only a part of the overall responsibilities and duties of the OIA. The office-wide file review will include not only extradition requests but also incoming and outgoing mutual legal assistance requests, which now represent the majority of OIA's files.
In the file review process, OIA supervisors will work with the line attorneys in reviewing each case and determining status and needed action. In addition to addressing the need for review and action with respect to individual cases, the file review process will inform our effort to develop and update policies and procedures with respect to extraditions and extradition case management.
Comments on specific recommendations follow:
OIA concurs. Office-wide review of all cases and matters has begun and includes the four points cited in the recommendation. Supervisors will review each case file with the responsible line attorney (this includes all files, not just extradition files). OIA has developed a new protocol to guide attorneys in case closing procedures. This protocol will be implemented within the next few weeks.
OIA concurs. Inasmuch as OIA has in the past been denied direct access to law enforcement data bases, OIA is developing a protocol with INTERPOL whereby INTERPOL will assist OIA in checking law enforcement indices as part of regular review and closing of extradition cases. OIA will explore with FBI, USMS, and INS the possibility of entering information regarding extradition requests which have not yet resulted in issuance of an arrest warrant in law enforcement databases, although in the past this concept has been rejected because of practical problems.
OIA concurs. In the course of the office-wide file review, OIA will review and develop standards and procedures to address maintenance of case files.
OIA concurs. New computer hardware is being installed office- wide beginning in February. This new equipment should facilitate attorney's use of the automated case tracking system. Previous equipment did not have the speed or capacity to allow access by all line attorneys without constant system failures. As soon as all computers are installed, MIS will begin training of all OIA personnel in the use of the automated case tracking. As the office-wide file review is completed, OIA will reconcile the results with the automated case tracking system. A contract employee has been retained to assist the docketing unit in dealing with the increase of cases to be closed.
OIA concurs. OIA has been working with the Office of Administration of the Criminal Division to revise overall performance measures. OIA has asked the Office of Policy and Legislation to assist it in assessing the extent to which the automated case tracking system can produce information relevant to performance measures regarding case management.
PART I: The Report's findings incorrectly exclude increased workload as a potential factor in the ever-growing backlog of pending extradition cases.
Pages 5 through 10 of the report are devoted to an analysis of OIA's workload and resources during the period 1990 to 2001. In several passages, the draft report -- referring to the fact that staff levels and the number of new extradition cases remained essentially the same during the period - either explicitly or implicitly asserts that therefore increased workload could not have been a factor contributing to OIA's mounting backlog of pending extradition cases. 1 Such a conclusion, with which OIA has repeatedly taken issue with IG staff, ignores the very significant increase in OIA's caseload of mutual assistance requests between 1990 and 2001, as well as the negotiation of more than 60 extradition and mutual assistance treaties during the same period.
The figures for mutual assistance requests are striking and were previously provided to the OIG; they are attached once again. They show that from 1990 to 2000, the yearly number of incoming mutual assistance requests increased nearly fourfold, from 439 to 1655. During the same period, the number of outgoing requests more than doubled from 286 to 608. In part, this increase in cases is due to the expansion in the number of MLATs (as noted in the report) from 4 to 38. The figures also reflect the same sort of pending case backlog seen with respect to extradition cases.
While we do not suggest that increased caseload excuses all case management problems cited in the report, it is unfair and misleading not to acknowledge that there was a very significant caseload increase during the period, in which the numbers of pending cases steadily increased, with no corresponding increase in resources. The mutual assistance workload of the office now approaches, if not surpasses, our extradition workload, and cannot simply be ignored. Similarly, the substantial demands of treaty negotiations - including multilateral negotiations -also cannot be ignored.
The specific textual changes to address these problems would include:
Our assessment did not address OIA's caseload of mutual assistance requests (requests for evidence), or its impact on the extradition case management deficiencies cited in the report. However, it is noted that while OIA's extradition caseload has remained relatively stable over the past decade, its mutual assistance caseload has more than tripled, and during this period there has not been any significant increase in staff. Also, during the 1990's OIA, working with the State Deparment, negotiated more than sixty new treaties in the areas of extradition and mutual legal assistance. While we did not undertake an analysis of the impact of OIA's increased workload of treaty negotiations and mutual legal assistance cases on the steadily increasing numbers of pending extradition requests, it cannot be excluded as factor which exacerbated the pending case problem.
Although extraditions are OIA's highest priority a high priority, OIA also handles a large number of requests for evidence, both under mutual legal assistance treaties (MLATs)[insert fn 4] and through letters rogator7 or request, and provides information and advice on international criminal matters to the Attorney General and other senior Department officials. It also negotiates agreements on international criminal matters with the U.S. Department of State and other government agencies. OIA's principal concentration is bilateral extradition treaties and mutual legal assistance treaties (MLAT) MLATs, but it also negotiates executive and general multilateral law enforcement agreements in a host of fora including the U.N., the OAS and the Council of Europe. In addition ... [text moved to beginning].... officials.
"Although the number of new extradition cases per year generally remained in the range of 700 to 900 through the period studied, the number of new mutual assistance cases (requests for evidence) grew significantly. New incoming mutual assistance cases grew from 439 in 1990 to 1655 in 2000; new outgoing mutual assistance requests grew from 286 in 1990 to 608 in 2000. Unfortunately, as illustrated in the Table below [Please insert attached table of mutual assistance case statistics], the problem of ever increasing numbers of pending cases also applies to OIA's mutual assistance caseload."
PART II. Overly negative findings in some case studies
As an initial matter, we request that the names of the foreign countries involved in the case examples be redacted. Our communications with foreign governments regarding extradition cases are generally confidential. Moreover, the underlying criminal cases in some of the examples may still well be open and the report should not disclose details of pending cases. Redacting the country names will make it unlikely that the specific cases can be identified.
OIG selected six of the sixty cases reviewed to demonstrate OIA's case management deficiencies. With respect to the six case examples, some "deficiencies" - including failure to close the case in a timely fashion - are legitimate. However, in three cases the report draws overly negative conclusions which are based on a misunderstanding of the extradition process or on assumptions not supported by the record of the case.
This case study involves a defendant wanted for sexual abuse of minors. The report reflects that between 1991 and 1997, OIA three times returned the case to the requesting country [Country Name Redacted] because of deficiencies. Despite these efforts (and our review indicates yet a fourth inquiry from OIA), the foreign country could not cure the problems with its case. What is disturbing about report's characterization of this case is that it leaves the impression that the "deficiencies" were minor or necessarily curable through further effort by OIA. What is omitted, despite this having been brought repeatedly to the attention of OIG, is the fact that the central flaw (diplomatically referred to as a "deficiency") was and remained inadequate evidence to support the standard of probable cause required for an extradition. Lack of evidence is not a problem that can be resolved, as the report suggests, by OIA "more actively communicating," and it is not an unusual problem with foreign extradition requests. Also, the fact that foreign country undertook twice to revise its documents, even if unsuccessfully so, clearly indicated that it remained interested in the case. In sum, over a period of years, OIA and the foreign country tried to cure the problems with the case; they did not succeed. Contrary to the conclusions in the report, more "active" communication by OIA - even if merited as a general aspect of case management - would not have cured the problems in the case, nor was it necessary to ascertain the foreign country's interest.
In this instance, the OIG inspection team seems to assume that the role of OIA is primarily one of "processing" an incoming request for extradition, and forwarding the request to the appropriate judicial district for court action. A great deal of time and a high degree of discretion must be exercised by OIA at this stage of the process to ensure that a threshold showing of probable cause can be demonstrated to the U.S. court. These are often complicated cases about which there is not uniformity of opinion. However, if OIA determines that this threshold is not met with the information provided by the requesting country, the case can not and should not be forwarded to a U.S. court.
Accordingly, we request that OIG revise the report to remove any suggestions that lack of "active communication" by OIA was the cause of delay.
In the case sample discussed here, a provisional arrest warrant had been issued for a fugitive but not placed on applicable U.S. lookout systems. Five months later the fugitive was arrested on state charges, convicted and three years later deported, events about which OIA was apparently unaware. The report cites several problems with this case.
First, the provisional arrest warrant was not entered into NCIC. Had it been entered, it is likely OIA would have learned through the Marshals Service of the fugitive's arrest and could have notified the requesting country [Country Name Redacted] and preserved its opportunity to extradite the fugitive, even if after his state sentence had been served. However this problem should not be attributed to OIA. OIA does not have authority to enter warrants into NCIC; it is the responsibility of the law enforcement agencies.
Second, the report criticizes OIA for not "following up" with the USAO to determine whether the fugitive had been arrested on the provisional arrest warrant. OIA need not "follow up" in this manner. If the fugitive is arrested, the USAO of necessity informs OIA, in order to obtain the formal documents supporting extradition from the requesting country, which if not produced in the time required under the treaty will result in the release of the fugitive. The U.S. Attorney's Office in this case is the Southern District of New York, which has successfully handled many extradition requests and upon which OIA has every reason to rely in fulfilling routine requirements regarding notice of the arrest of a fugitive.
Third, the report criticizes OIA for not following up with the requesting country [Country Name Redacted] to determine whether it had further leads on the location of the fugitive. The law enforcement authorities of that country are well versed in international practice and will communicate new fugitive location leads through law enforcement channels without prompting from OIA. There is no indication any new leads were developed in the five months between the issuance of the provisional arrest warrant in New York and the defendant's arrest in Florida on State charges. Thereafter, it would have been difficult for the country to develop further leads since the defendant was in fact incarcerated in the U.S. (which was, of course, a critical fact which may never have been communicated to that country).
This case study points out how two very practical steps - routine review of cases and an ability for OIA to easily check law enforcement indices - would have, at a minimum, enabled OIA to ascertain that the fugitive had been arrested on State charges and to then notify the requesting country and preserve its opportunity to seek the fugitive's extradition. However, we find highly objectionable the report's tacit suggestion that OIA's handling of the case made it possible for defendant to go "on to commit a violent crime in this country." There is absolutely no indication there was information available to U.S. or foreign law enforcement which would have permitted the fugitive's arrest for extradition purposes prior to his commission of another crime in United States. Conjecture on the part of OIG staff should not serve as the basis for such a damning characterization of OIA.
For these reasons, if the case study is to be retained at all, it would be more appropriately placed alongside the discussion on pp. 25-26 (pertaining to factors in the extradition process that limit OIA's ability to carry out its functions), and not in a section addressing deficiencies in OIA procedures. Moreover, the key portion of the findings - recognizing an error committed by another agency - should be in the text, not footnotes. Initially, we would request revision to the text of the draft report in last paragraph on p. 21 along the following lines:
"The following incoming extradition case demonstrates the need to fully utilize law enforcement information systems to improve the ability to locate fugitives sought by foreign countries and the need for OIA to to be able to incorporate checks of those systems in regular reviews of its pending cases. In this case, the USAO had an arrest warrant issued but the fugitive was not located and the warrant was not entered into NCIC. We found through an NCIC check that the fugitive thereafter commited a violent crime while in the United States, was arrested, sentenced and released from prison deported.
In addition, we request the following revisions to the first and second paragraphs on p. 23 and to footnote 16:
"Given current arrangements, OIA cannot 2 match information pertaining to United States and foreign extradition requests with other law enforcement information systems, as it does not have access to relevant law enforcement systems, such as NCIC. [fn 16] Unless a Red Notice or extradition warrant [fn 17] is issued, U.S. law enforcement authorities that come in contact with the fugitive separate from extradition would not be aware of the extradition. Although we were told that OIA might query the INS regarding a fugitive's immigration status .... practice.
"At the time of our review, there had been no activity on this case since 1993 and the case remains open at OIA. The USMS should have entered the provisional arrest warrant onto NCIC once it was determined that the fugitive was not at the location originally provided by the foreign country. Had this been done, the arrest of the fugitive in Florida likely would have come to the attention of the USMS and, in turn, OIA. OIA could then have followed up with the foreign country? to effect the fugitive's extradition, even if his surrender had to be delayed pending the service of his sentence on state charges.. OIA did not follow up with the [Country Name Redacted] to determine whether it had another location for this fugitive who went on to commit a violent crime in this country.
Revision to footnote 16: One OIA attorney, formerly with INS, is permitted direct access to some INS databases; otherwise, however, OIA does not have direct access to any law enforcement systems such as NCIC.
Prosecutors may differ in their judgment about whether probable cause is met in a particular case; indeed, courts often have. Moreover, given the United States' obligations under extradition treaties it is not unreasonable for the OIA to send forward a case which is arguably sufficient under the treaty, with the possibility that the AUSA may disagree. This is exactly what happened in the case example set forth on page 24, and it should not be cited as an OIA "deficiency." Instances could be cited where an AUSA believed probable cause did not exist, but where the case was handled by OIA and the court found probable cause. In addition, it must be noted where a person has been provisionally arrested, the remedy for non-presentation of documents is the release of the fugitive, so it is not improper to send forward documents which may present weaknesses, provided OIA and the AUSA believe they are at least sufficient grounds to make a credible argument for extradition in court.
The conclusion that an adverse decision by a foreign court must be the result of poor legal advice from OIA is particularly disturbing. Success in a foreign court is never assured. Aside from the constant difficulties of extradition courts having to understand and interpret very different laws and legal systems, OIA does not and should not shy away from pursuing difficult cases which may present to foreign courts novel issues or new types of offenses. Moreover, many adverse decisions by foreign courts are in our view simply wrong. It is unfounded and unfair to suggest that anything less than a 100% success rate in foreign courts is due to failure by OIA in its legal analysis and advocacy.
In sum we ask that the above described analysis and case example either be deleted of substantially revised. They do not support the harsh criticism levied against OIA in this section.
PART III: Findings regarding OIA's inability to produce files for OIG review
Accordingly, we request that the final three sentences of the fourth paragraph on page i, and continuing onto page ii be revised as follows:
" ... We selected a sample of 70 extradition case files from the total pending cases and cases closed during fiscal year 2000. Of the 70 cases, OIA's records indicated 39 were closed and 31 were open. Of the 70 cases, OIA did not produce 12 cases before we concluded our review 10 cases within the timeframe we requested. Some of those appear to be closed cases which either could not be located at the Records Center or which were produced by the Records Center after the cut-off date we provided OIA. In at least two cases, OIA could not produce the files requested in a timely fashion because it erroneously carried the cases as open when in fact they had been closed and sent to the Records Center."
"We selected a sample of 70 extradition case files from the total pending cases as of November 2000 and cases closed during fiscal year 2000, Of the 70 cases, OIA records indicated that 39 were closed and 31 were open. Of the 70 cases, OIA did not produce 12 cases, 9 closed and 3 open, before we concluded our review 10 cases within the timeframe we requested. Some of those appear to be closed cases which either could not be located at the records center or which were produced by the records center after the cut-off date we provided OIA. In at least two cases, OIA could not produce the files requested in a timely fashion because it erroneously carried the cases as open when in fact they had been closed and sent to the records center. [Note: With this addition, footnote 13 can be deleted.] Of the 58 60 cases reviewed, 30 32 were closed cases and 28 were open cases. Of the 30 32 closed cases reviewed .... "
PART IV: Revision in Table 2 and accompanying discussion, regarding new treaties
Table 2, on page 6, summarizes by year the new extradition and mutual assistance treaties which entered into force between 1990 and the beginning of 2001. The only problem with the table is that it indicates that there were 58 extradition treaties in force in 1990. We assume this figure was arrived at by taking the total number of current treaties (91, and applicable to 110 countries) and subtracting the number of new treaties negotiated in the past decade (33), to come up with a 1990 total of 58. While this approach works for MLATs, it does not work for extradition treaties.
By our calculations, the extradition treaty situation evolved over the past decade as follows: In 1990 we had extradition treaty relationships with 105 countries, and as of February 2001, we had extradition relationships with 109 countries. (The report reflects an earlier OIA-provided figure of 110, but for the purposes of the report the difference is not significant.) In the years 1990 through February 2001, we count 32 new extradition treaty instruments entering into force. (Again, the report cites an earlier OIA-provided figure of 33, but we don't find this significant.) However, of those 32/33 new instruments, only 4 represent entirely new treaty relationships, i.e., with Jordan, the Philippines, South Korea and Zimbabwe. The remaining instruments are either new treaties which replace old treaty instruments, or are amendments to existing treaties (called "protocols" or "supplemental" treaties). In light of this background, then, it is inaccurate to state, as does the text following the Table, that "the number of extradition treaties increased by 33."
To better portray this rather complicated information regarding extradition treaties, we would suggest simply deleting the first line of the table ("Prior to 1990") and the final line ("Grand Total") thus avoiding the problem of "total" numbers of extradition treaties. This problem might then be resolved by revising the introductory paragraph on page 5 to read as follows (for this purpose, we assume OIG wishes to keep the totals previously provided):
"The numbers of new extradition treaties and MLATs have grown significantly over the last ten years (see Table 2 on page 6). Since 1990, 32 new extradition treaty instruments have entered into force. The majority are new treaties which updated or entirely replaced outmoded extradition treaties, but four represent the establishment of extradition relations with new countries. The United States currently has 91 extradition treaties with 110 countries. Before 1990, there were four MLATs .... "
PART V: Suggested technical corrections
p. i, 2nd paragraph, last line: in diplomatic practice, "communique" means a particular type of statement (generally meant for the public or press), and not communications generally; thus we suggest the reference be to "diplomatic communications."
p. i, 3rd paragraph, 8th line: suggest "believed to be in the United States" be revised to read "believed at one time to be in the United States." As the report notes, cases are opened when there is a location lead for a fugitive, but may remain open long thereafter, even though there is no subsequent information that the fugitive was in the U.S.
p. ii, 1st paragraph, line 4: suggest "We found that OIA was most effective during the initial review first phase of an extradition .... " The actions described constitute more than an initial review. Extradition cases are based in most cases entirely on the documents submitted. Thus, advice regarding and review of the documents is often the most critical phase of the case.
p.2, 2nd paragraph, 7'h line: suggest reference to Red Notice read: "issuing a Red Notice to facilitate apprehension of a fugitive." Red Notices do not necessarily serve as a basis for apprehension (it will depend on the country). However, it is certainly fair to say that as international "wanted posters," Red Notices generally "facilitate" apprehension.
p. 3, 1st paragraph: please amend the reference to Team I's area of responsibility to read: "Ireland, Africa, the U.K. and its dependencies, and the English-speaking Caribbean." Many Caribbean nations have long been independent of the U.K. and may find it insulting to be referred to merely as "former possessions." Moreover, it is primarily the fact that they are English-speaking that places them in Team I's area.
p. 4, paragraph 2: the description of the fugitive unit is not correct. In the vast majority of cases, when a fugitive is located abroad, the regional team is notified directly by foreign or U.S. law enforcement agencies or through diplomatic or Interpol channels, and the fugitive unit (comprised of a single attorney and now disbanded) is not involved. The second sentence should therefore be deleted.
p. 5, footnote 7: the reference to an OIA attorney "stationed" in Switzerland is not entirely accurate. A former OIA attorney, now living in Switzerland, is retained on an "as needed" basis pursuant to a contractual arrangement with the Division. Also, the attorneys in France and the U.K. are part of an "exchange" or "liaison magistrate" program initiated by Attorney General Reno, as opposed to the full-fledged overseas positions filled by OIA attorneys at our Embassies in Rome, Mexico City, and Brussels. We ask that clarification along these lines be included in the footnote.
p. 23, footnote 16: in fact, OIA has access to no law enforcement databases, other than one attorney who is permitted access to the INS database because she is a former INS employee; we suggest a more accurate description would be: "One OIA attorney, formerly with the INS, has access to INS databases; otherwise, OIA does not have direct access to any law enforcement databases."
p. 26, paragraph 1, line 2: it is more accurate to say: "fugitives believed at one time to be in the United States." While footnote 19 is helpful, without reference to the footnote, the statement is misleading. As the report notes, many cases appear to remain open even when an initial lead on a location in the United States has long grown stale.