The Role of United States Federal Courts in Extradition Matters: The Rule of Non-Inquiry, Preventative Detention and Comparative Legal Analysis

Rachel A. Van Cleave, Golden Gate University School of Law

Originally published in Temple International & Comparative Law Journal at 13 Temple Int'l. & Comp. L. J. 27 (1999). Posted with permission.


This paper first discusses the importance of understanding the criminal justice systems of other countries to explain why, as a matter of general policy, the rule of non-inquiry should not apply. Next, this paper briefly outlines the extradition process and asserts that as a matter of method of analysis, the question of whether the relator has been charged for purposes of the extradition treaty must be answered as a first step in determining whether the relator is extraditable at all, thus before the rule of non-inquiry enters the analysis. The focus of this paper then shifts to the meaning of the word charged in extradition treaties, and whether, as a matter of treaty interpretation, that term includes one who is sought by a foreign country for the purpose of preventive detention. The point of this paper is not necessarily to criticize the code provisions permitting preventive detention in certain countries, 25 but rather to demonstrate that an order of preventive detention does not constitute a charge under U.S. extradition treaties, and further that U.S. federal courts should make an effort to examine the procedure of the requesting country to determine whether the requested person has been charged. Finally, this paper discusses some recent cases which indicate that federal courts might be beginning to seriously consider the issue raised in this paper.