1 Insofar as my research reveals, this is the first time a federal appellate court has held an extradition treaty or the implementing statute unconstitutional. The District Court for the District of Columbia had held 18 U.S.C. §§3184, 3186 unconstitutional under the separation-of-powers doctrine, but that decision was vacated by the D.C. Circuit for lack of subject matter jurisdiction in the trial court. LoBue v. Christopher, 82 F.3d 1081 (D.C. Cir. 1996). Subsequent cases have rejected that constitutional claim on the merits. See, e.g., Lo Duca v. United States, 93 F.3d 1100 (2d Cir. 1996), summarized in 91 AJIL 138 (1997).

2 Extradition Convention, Jan. 6, 1909, U.S.-Fr., as amended Feb. 12, 1970, Art. IV, 22 UST 407, 791 UNTS 273.

3 112 F.3d 1363, 1369.

4 See Michigan v. Doran, 439 U.S. 282 (1978).

5 U.S. CONST. Art. IV, §2,cl. 2.

6 629 F.2d 739, 748 (2d Cir. 1980).

7 Id. at 744 n.9 (quoting Treaty of Extradition, Jan. 18, 1973, U.S.-Italy, 26 UST 493).

8 Article IV of the Extradition Convention, supra note 2, authorizes “the arrest and detention of a fugitive” on the basis of “information . . . of the existence of . . . a warrant of arrest.” Given the serious foreign policy and separation-of-powers concerns implicated by holding a treaty unconstitutional, the court might have considered engaging instead in a more creative reading of the treaty in light of constitutional concerns—a reading made possible perhaps by the language indicating that arrest “may be applied for” and that the Secretary of State shall deliver a warrant “certifying that the application is regularly made.”

9 112 F.3d at 1374.

10 See Fernandez v. Phillips, 268 U.S. 311 (1925) (finding no error in procedures in which complaint filed with magistrate by the assistant U.S. attorney seeking defendant’s arrest was necessarily upon information and belief, but was pursuant to a request for extradition by the Mexican Government, together with a copy of proceedings in a Mexican court, which included ample evidence of the defendant’s guilt); Petrushansky v. Marasco, 325 F.2d 562 (2d Cir. 1963) (finding sufficient evidence presented at extradition hearing to establish probable cause that relator had committed murder in Mexico and therefore affirming denial of habeas petition).

11 See United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984) (affirming denial of habeas where defendant had been provisionally arrested pursuant to a diplomatic note and Spain provided the necessary documentary evidence of probable cause to the United States in a timely fashion, but the extradition hearing was delayed because the American Embassy had mislaid the documents).

12 112 F.3d at 1377.

13 As the Ninth Circuit recognized, this prediction was inaccurate. After conviction on state charges in Delaware, Parretti fled while on bail pending sentencing. In the instant case, Judge Pregerson dissented and argued that, under the fugitive disentitlement doctrine, the proper option was for the court to dismiss Parretti’s appeal.

14 See, e.g., United States v. Russell, 805 F.2d 1215 (5th Cir. 1993) (holding that merely not being a flight risk does not come within the “special circumstances” exception to detention of international fugitives).

15 190 U.S. 40 (1903). In his concurrence in Parretti, Judge Reinhardt questioned whether the “single, casual remark about ‘special circumstances’ ‘‘ in Wright v. Henkel provided an adequate basis for the doctrine at all. 112 F.3d at 1386.

16 In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court held that the interest in community safety was sufficiently compelling to outweigh, in narrowly defined circumstances, the defendant’s strong interest in liberty. Traditionally, risk of flight has been the rationale for denial of bail.

17 In his concurrence, Judge Reinhardt suggested that the expansion of international activity and of the use of extradition made the special circumstances doctrine increasingly inappropriate. Potential extraditees may well be ordinary citizens or residents of the United States, whose ties are predominantly domestic but who have allegedly committed some crime during a trip abroad, or persons employed by multinational corporations who discover that their behavior is subject to prosecution elsewhere for influence peddling or commercial espionage. While Judge Reinhardt conceded that it is appropriate to assume that “foreign extradition cases will ordinarily involve a greater degree of flight risk than domestic criminal cases,” he insisted that “there is simply no justification for the automatic denial of bail in extradition cases, even with the theoretical escape hatch provided by the ‘special circumstances doctrine.’ ” 112 F.3d at 1390.

18 112 F.3d at 1384.

19 The treaty at issue in Parretti permits detention for up to 40 days. Id. at 1389 n.5. The United States enabling statute, 18 U.S.C. §3187 (1994), authorizes provisional arrest and detention for 90 days.

20 Whatever Wright v. Henkel stands for, it clearly does not require lower courts to deny bail except where special circumstances appear, and thus would permit the enunciation of a more flexible doctrine.

21 Originally, the United States-France extradition treaty did not even authorize extradition of nationals. As amended, it permits such extradition, but only at the discretion of the requested state.

22 Unlike the typical police arrest in the United States, the arrest here occurs pursuant to a warrant. There is no apparent reason for concluding that the Constitution requires stricter review of arrests pursuant to a foreign warrant than of warrantless arrests.

23 While the text of the Fourth Amendment distinguishes between search and arrest warrants (requiring probable cause) and other seizures, this reflects the greater power historically granted the Government when it searched under a warrant. It would seem the most absurd of formalisms if the availability of even the flexibility constitutionally permissible for nonwarranted police arrests in domestic cases were deemed unavailable because the document through which the extradition-linked arrest is effectuated is called a “warrant,” rather than, say, a “provisional arrest authorization.”

24 In United States v. Wiebe, for example, the provisional arrest warrant was issued in response to an Interpol telex indicating that Wiebe, a Canadian charged by Spain with two murders, “would be changing planes at the Minneapolis-St. Paul Airport.” Wiebe, 733 F.2d 549, 550 (8th Cir. 1984).

25 The Supreme Court first decided that a probable cause hearing must be held “promptly.” Gerstein v. Pugh, 420 U.S. 103 (1975). It then decided that this requirement is presumptively satisfied if the hearing is held within 48 hours of the arrest. County of Riverside v. McLaughlin, 500 U.S. 44 (1991).

26 County of Riverside, 500 U.S. at 56.

27 As Justice O’Connor noted in County of Riverside, constitutional doctrine in this situation must be flexible and pragmatic. A rule that simply imports the 48-hour limit to the extradition context is neither. It conflates situations of unnecessary and suspicious delay with those rooted in the necessities of the situation. Cf. Detlev, F. Vagts, A Reply to “A Critical Evaluation of the Mexican-American Transfer of Penal Sanctions Treaty,” 64 Iowa L. Rev. 325, 331–32 (1979)Google Scholar (criticizing constitutional analysis that fails to distinguish foreign criminal judgments issued under conditions wildly contrary to our constitutional traditions from those that merely differ in some relatively minor fashion).

28 It should be enough that the procedures of the requesting state comport with basic notions of fairness. “Foreign powers are not expected to be versed in the niceties of our criminal laws.” Grin v. Shine, 187 U.S. 181, 184 (1902). Furthermore, since under this analysis the foreign determination serves only to delay, not displace, the probable cause determination of the U.S. court, it would appear to be particularly inappropriate to refuse to defer to the determination of the political branches, in entering into and remaining party to the treaty, that the treaty partner’s procedures, including its arrest warrants, reasonably accommodate such concerns.

29 Cf. Michigan v. Doran, 439 U.S. 282 (1978) (full faith and credit is required in the context of interstate extradition proceedings).

30 In considering the time required, one may note that in Wiebe, where the process was triggered by the unexpected opportunity of the defendant’s stopover in an American airport, the Spanish authorities were able to provide documentation to the Embassy for authentication in less than two weeks. Wiebe, 733 F.2d 549, 551 (8th Cir. 1984). There might be grounds for questioning not only the 90 days provided for by statute but the 40 days referred to in the treaty, which went into force in 1911, long before the development of modern means of rapid communication.

Until new treaty provisions are adopted, a court might review a habeas petition claiming unconstitutional delay directly under the constitutional requirement that there not be unreasonable delay. In applying this standard, it should focus, not on the theoretical time limits of the relevant treaty, but on whether both governments are attempting in good faith to provide the supporting documentation in a timely fashion. Cf. County of Riverside, 500 U.S. at 56–57 (a delay beyond 48 hours is permissible under “extraordinary circumstance,” while even a 48-hour delay may be unreasonable if motivated by ill will toward the defendant or delay for delay’s sake).

31 These concerns may be mitigated by the full Ninth Circuit. Parretti was reargued en banc on December 18, 1997.