Extradition to Germany from the United States—CIA

The United States’ policy of extraordinary rendition has been taking a few hits in recent months. As we discussed more than a year ago, Italy is preparing to seek the extradition of more than 20 CIA agents for the extraordinary rendition of Abu Omar; these considerations have picked up steam in recent weeks. And just recently, Maher Arar was given a $10.5 million settlement by the Canadian government and an official apology for having him turned into American authorities, which then sent him to Syria, where it appears he was tortured.^[1] A former top CIA official, Frederick Hitz, who was the CIA’s inspector general during the Iran-Contra affair, has recently announced that “he hopes the story of [Mr.] Arar’s deportation and torture will help end … extraordinary rendition.”^[2]

Germany, now, has issued arrest warrants “for 13 suspected CIA agents in connection with the alleged kidnapping of a German citizen of Lebanese descent in Afghanistan.”^[3] The arrest warrants list charges of kidnapping and severe battery, and it is believed that the names on the warrants are aliases.^[4] The German citizen is Khaled El-Masri, who claims “he was kidnapped in late 2003 while on holiday in Macedonia”; after being interrogated for several days in that country, it appears he was “flown to Afghanistan where he was held in a secret prison for several months and severely beaten in interrogation sessions.”^[5] Like Mr. Arar, Mr. El-Masri challenged his detention in United States federal court, and like Mr. Arar, the United States urged the court to keep the lawsuit from going forward because “it involves secret information that can’t be disclosed in court.”^[6] The dismissal has been appealed to the 4th Circuit Court of Appeals,^[7] but, if history is to be our guide, it is unlikely that Mr. El-Masri will ever be able to have his case heard.

The 13 alleged CIA agents will likely be the subject of an extradition request which will likely never be granted. The 1978 treaty between the United States and Germany, which is of the hybrid type of treaty (containing both a laundry-list and a dual-criminality clause),^[8] states that it prohibits extradition for offenses of a purely military offense,^[9] which will surely be an argument raised by the defense. Furthermore, the extradition laws of the United States make it clear that the final determination of extraditability lies with the Secretary of State. Under 18 U.S.C. § 3186, the Secretary of State “may order the person [whose extradition is sought] to be delivered to any authorized agent of the foreign government.”^[10]

Though extradition from the United States is unlikely, there is a practical effect of issuing arrest warrants: if Germany then forwards those warrants to Interpol, a Red Notice will be issued, putting the world on notice that there is an arrest warrant out for that individual.

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[1] See Bruce Cheadle, Fmr CIA Official Wants to Give Arar Case Higher Profile in U.S., CP (via CANOE), Jan. 30, 2007.
[2] Id.
[3] Frederik Pleitgen, Germany Seeks 13 Over CIA “Kidnap,” CNN.com, Jan. 31, 2007.
[4] Id.
[5] Id.
[6] Patrick Donahue, Germany Orders 13 Arrests Over Alleged CIA Kidnapping (Update 3), Bloomberg, Jan. 31, 2007.
[7] Craig Whitlock, Warrants Issued for 13 CIA Operatives in Germany Kidnapping, Wash. Post, Jan. 31, 2007.
[8] Extradition Treaty, Jun. 20, 1978, U.S.-Ger., Art. 2, 32 U.S.T. 1485.
[9] Id. Art. 5.
[10] 18 U.S.C. § 3186 (emphasis added).