Review of the Office of International Affairs' Role
in the International Extradition of Fugitives
Report Number I-2002-008
OFFICE OF THE INSPECTOR GENERAL'S
ANALYSIS OF MANAGEMENT'S RESPONSE
On December 10, 2001, the Office of the Inspector General (OIG) sent copies of the draft report to the Criminal Division with a request for written comments. The Criminal Division responded with three sets of comments, which we have included in Appendix III. The first is a memorandum from the Criminal Division's Assistant Attorney General, who concurred with the recommendations of the report but disagreed with some of the report's findings. The second is the Office of International Affairs' (OIA) comments on the OIG's recommendations. The third is OIA's specific comments on some of the findings and language of the report. We first discuss the responses to each of our five recommendations, then address the comments that the Criminal Division and OIA provided regarding the findings and language of the report.
Recommendation Number 1 - Resolved - Open. OIA is conducting an office-wide review of all its cases and matters. According to OIA, this review is addressing the four areas that we consider the minimum requirements needed in extradition process policies and procedures. Although OIA has developed a new protocol to guide attorneys in case closing, we believe OIA needs to develop standard procedures that address, on an ongoing basis, the full range of extradition case management policies and, at a minimum, respond to the areas outlined in our recommendation. Please provide a copy of the new case closing protocol and case management policies and procedures.
Recommendation Number 2 - Resolved - Open. OIA responds to the recommendation by planning to explore with the Federal Bureau of Investigation (FBI), United States Marshals Service (USMS), and Immigration and Naturalization Service (INS) the possibility of entering information about extradition requests that have not resulted in issuance of arrest warrants in law enforcement databases, and by developing a protocol with the U.S. National Central Bureau (USNCB) of INTERPOL whereby USNCB would assist OIA in checking law enforcement indices as part of OIA's regular review and closing of extradition cases. Please provide documentation of OIA's consultation with the FBI, USMS, and INS regarding entering extradition request information into law enforcement databases, and a copy of the protocol developed with USNCB.
Recommendation Number 3 - Resolved - Open. OIA's plan to develop standards and procedures to address maintenance of case files is responsive to the recommendation. Please provide a copy of the standards and procedures.
Recommendation Number 4 - Resolved - Open. OIA stated that it is installing new computer hardware, which it expects will facilitate OIA attorneys' use of the automated case tracking system. Training of all OIA personnel in the system's use will follow the installation. OIA will reconcile the automated tracking system records with its office-wide file review. Please provide us with information showing that the data in the new system is, and will remain, reliable and complete, and the plan OIA intends to implement to ensure that the tracking system is used as an integral part of case management.
Recommendation Number 5 - Resolved - Open. OIA is working to revise its performance measures and determining whether the automated case tracking system will be the method by which to monitor OIA's progress against the performance measures. Please provide the revised performance measures and method that OIA will use to monitor the office's compliance with those measures.
Criminal Division and OIA Comments on Report
Although the Criminal Division agreed with all our recommendations, it did not agree with several aspects of our findings. According to the Criminal Division's response, its three general disagreements were its belief that: (1) we did not sufficiently consider the other duties and responsibilities of OIA, (2) some of our case studies reflected overly negative conclusions about OIA's extradition activities, and (3) some of the figures in the report were incorrect. The Criminal Division also provided us with amended information about the number of extradition treaties and suggested technical changes to certain wording of the report. Our analysis of the Criminal Division's concerns and recommended changes is provided below.
OIA's Other Duties and Responsibilities. The Criminal Division requested that we add more information to the report about OIA's increased workload involving multilateral treaty negotiations and mutual legal assistance requests. According to the Criminal Division, these have more than tripled over the past decade. The Criminal Division further stated that these treaty negotiations and assistance requests rival OIA's responsibilities for extraditions of fugitives and also contribute to problems in managing the extradition caseload. The Criminal Division's response added, "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."
Although the draft report already described OIA's mission, responsibilities, structure, varied workloads, and staffing, we included some additional information about OIA's workload handling multilateral treaty negotiations and mutual legal assistance requests. Our review did not evaluate the statistics regarding OIA's mutual legal assistance caseload and its affect on the pending extradition caseload. However, in reaching our conclusions on OIA's handling of extradition cases, we did not ignore OIA's other responsibilities or its increasing demands in other areas. As the Criminal Division itself acknowledges, however, its other duties cannot justify the significant deficiencies we found in its management of extradition cases. OIA officials told us at the time of our review that management of extradition cases was OIA's highest priority. We believe that problems in managing its extradition cases cannot be attributed to increases in other areas; rather, the lack of basic management oversight in extradition cases is the main fault.
Moreover, during our review OIA provided no documented evidence that it had analyzed its various workloads and work methods or had determined the root causes of its case backlogs. If the increased caseload in other areas has dramatically affected OIA's ability to handle its extradition caseload in a timely and appropriate manner - a proposition that has not been conclusively shown - we believe that the Criminal Division should have sought to obtain, or allocate, additional funds for those other critical responsibilities. In sum, while we noted in the report OIA's other responsibilities, and also include the Criminal Division's statistics and arguments about its other responsibilities, they cannot excuse the significant problems we found in OIA's handling of its extradition cases.
Case Studies. As requested by OIA, we redacted names of foreign countries from the case studies to protect the confidentiality of the countries.
The Criminal Division also asserts that three extradition cases included in the report draw overly negative conclusions about OIA that are based on a misunderstanding of the extradition process or on assumptions not supported by the case records.
To supplement our reviews of the case files and Extradition Tracking System, we interviewed attorneys assigned to cases that had little or no activity over several years. The attorneys could not provide justification or extenuating circumstances to account for the lack of activity. Likewise, we interviewed OIA managers regarding cases and case management policies, but the managers could only speculate as to why cases were handled in a specific manner. The attorneys and managers told us they believed that initiating follow up on pending cases was the responsibility of prosecutors and not the responsibility of OIA. If requested by a prosecutor or law enforcement officer, OIA would then pursue the status of a pending case.
We disagreed with OIA's narrow view of its responsibility for follow up on extradition cases. The case studies on pages 19 and 23, which the Criminal Division cited as overly negative, portray OIA's limited level of involvement in the cases. At the time of our review, OIA had not done anything on the cases in four years and eight years, respectively. When events occurred that could potentially change the status of the cases, OIA did not take action to facilitate the extraditions. For example, in the first case, the USMS located the fugitive, yet OIA did not notify the foreign country. In the second case, when the fugitive was not found at the specified location, the OIA did not inform the foreign country or coordinate with the U.S. Attorney's office (USAO) and the USMS regarding the status of the arrest. A follow-up call to the USAO or USMS may also have ensured the fugitive's warrant was entered into the National Crime Information Center (NCIC) database.
The Criminal Division stated, however, that follow up with prosecutors and law enforcement officials was not OIA's responsibility and that OIA's lack of follow up could not be linked to stymied extradition cases, unapprehended fugitives, and crimes the fugitives commit while free. Our report does acknowledge that factors such as the complexity of a case or diplomatic considerations may cause a case to remain open for extended periods, or that extraditions may not occur because fugitives elude capture, or foreign governments cannot provide documents needed to meet the United States' legal standards. But we do not agree with OIA arguments about its limited role in extradition matters. OIA has expertise and access to critical, time-sensitive information about cases needed by prosecutors and law enforcement agencies. Extradition cases involve alleged criminals on-the-run who may commit criminal acts. Our checks of the NCIC database showed that fugitives do, in some cases, remain in the United States and may commit other crimes. Similarly, fugitives that flee from the United States to foreign countries may commit crimes in those countries. Because of these potential serious consequences, we did not revise the report to remove or lessen the conclusion about OIA's need to perform proactive follow up on extradition cases. We believe OIA must stay actively involved in cases, coordinate with other parties to the extraditions (such as foreign and U.S. prosecutors and the USMS), and proactively initiate prompt case actions.
We did, however, revise the report to include additional facts in the case studies, such as information about the responsibilities of USAOs and the USMS and OIA's lack of access to law enforcement systems. We also added information to emphasize OIA's expertise and unique position to share information and facilitate extraditions.
The Criminal Division also expressed concern with the report's statements (on page 24) about deficiencies in OIA's legal determinations in certain extradition cases. The Criminal Division stated that these deficiencies could reflect differences in judgment between OIA attorneys, U.S. prosecutors, and foreign courts. However, our concern is that OIA does not have procedures in place to ensure that each case receives an adequate review for legal sufficiency. In addition, International and National Security Coordinators from two USAOs that handle extradition cases suggested that that knowledge of U.S. law displayed by OIA attorneys for incoming cases was "wanting," OIA did a poor job in screening incoming extradition requests, and some extradition requests barely set forth probable cause.
In total, we reviewed 58 extradition case files and identified 34 cases with case management problems. We could have used many of these 34 cases as examples in our report of OIA's lack of follow up or incompleteness of actions in extradition cases. We believe that OIA plays a pivotal role in the extradition process and should assume broader responsibility for case activities, such as reviewing legal sufficiency, sharing information, and initiating follow up.
Number of Files Reviewed. The Criminal Division asserted in its response that we did not have accurate numbers for the number of files we reviewed and the number of files OIA provided. In fact, contrary to Criminal Division's assertion that the "OIG actually reviewed 60 rather than 58 files," we did review 58 extradition cases. Our target sample size was 70 cases, but 12 cases were either never located or not received in time to review during our on-site field work.
In its response, OIA also stated that part of the problem in providing these 12 cases to the OIG was that the National Records Center could not find OIA closed case files. OIA also added that the Records Center produced some closed files to OIA late or the files were erroneously entered into OIA's case tracking system as being open, when in fact they were closed and at the Records Center. We have included OIA's assertions about the causes for the failure to produce these 12 files in the report, but we also note that this provides another illustration of problematic case management, particularly the inaccurate information about the status of certain cases.
In addition, part of OIA's disagreement with our numbers reflects a difference with how we treated cases involving co-defendants. Although our sample was 70 cases, we had requested more than 70 case files and had received more than 58 files. The additional cases requested and received, however, contained information involving co-defendants related to other cases in the sample. We did not expand our original sample of 70 cases to include these additional cases.
Extradition Treaties. After reviewing the draft report, the Criminal Division provided us with revised treaty numbers and stated that treaty information provided earlier by OIA was not accurate. Both the number of foreign countries with extradition treaties and the number of extradition treaties since 1990 had been over-counted by one. The revised numbers should be 109 (not 110) and 32 (not 33), respectively. The Criminal Division further explained that only 4 of the 32 extradition treaties established first-time treaty relations with new foreign countries. The other treaties were updates to, or replacements for, existing treaties.
The Criminal Division's revised treaty numbers are the third set of numbers we have received in response to our inquiry. Based on this latest information, we revised the report to delete the number of treaties prior to 1990 (the Criminal Division did not provide a corrected number) and added a footnote about the four new treaties versus changes to existing treaties. We did not revise the total number of extradition treaties entered into force since 1990 from 33 to 32.
The Criminal Division also suggested a variety of technical corrections to language in the report. Where appropriate we incorporated the changes.
In sum, we believe - and the Criminal Division agrees - that the recommendations we make could improve OIA's management of its extradition cases. We believe that OIA's other responsibilities do not excuse the serious deficiencies we found in the way OIA manages extradition cases.