Extradition to Germany from the United States – CIA Update

German Justice Ministry officials have confirmed that the thirteen suspected CIA operatives sought by German authorities for the alleged kidnapping of a German citizen will not be extradited from the United States.^[1] The ministry has, as a result, declined to pass on to Washington a formal request by Munich prosecutors for the group’s arrest and extradition.^[2]

The suspected agents are wanted for the wrongful imprisonment and serious bodily injury of Khaled el-Masri, a German citizen of Lebanese descent.^[3] El-Masri claims that he was abducted in December of 2003 while crossing the Serbian-Macedonian border.^[4] He says he was then flown to a CIA detention center in Kabul, Afghanistan and subjected to physical abuse.^[5] El-Masri further maintains that he was released in May of 2004 in Albania after his alleged captors claimed his abduction was a case of mistaken identity.^[6] German prosecutors issued warrants for the thirteen's arrest in January of 2007.^[7]

The U.S. Embassy in Berlin has not commented on the issue to date.^[8]

Extradition between the United States and Germany is governed by the treaty signed between the two nations in 1978.^[9] It is a hybrid treaty containing both a dual criminality clause and a laundry list of extraditable offenses, but prohibits extradition for purely military offenses.^[10] The ultimate decision on whether a suspect is extradited lies with the Secretary of State, who “may order the person [whose extradition is sought] to be delivered to any authorized agent of the foreign government.”^[11] It is likely this discretion would have been exercised should a formal extradition request be presented.

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^[1] Matthias Armborst, Germany: U.S. Won't Extradite CIA Suspects Associated Press Newswire, Sept. 22, 2007, available at LEXIS, News Library, Wire News Services File.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Extradition Treaty between the United States and the Federal Republic of Germany S. Treaty Doc. 100-6, 1978 U.S.T. LEXIS 323
^[10] Id. Art. 5.
^[11] 18 U.S.C. § 3186 (emphasis added).