The Trial of Captain America, Part 2

Back in June we discussed some of the legal and ethical issues presented in The Trial of Captain America.  We also promised to follow-up with another post, since there were more issues to talk about.  It’s a little belated, but here we go.  Spoilers ahead for those who haven’t read the series.

At the end of the trial (in which Bucky is sentenced to time served after changing his plea to guilty), the Russian ambassador to the United States announces that he has extradition orders to bring Bucky to Russia, where he has already been convicted in absentia of crimes against the state.  And sure enough, he is hauled away to Russian prison, although he later escapes.

There’s just one little problem here: the United States doesn’t have an extradition treaty with Russia.  A list of the countries with which the United States does have an extradition treaty can be found here, starting on page 6 (there’s also the Wikipedia version).  Extradition is not a judicial function but rather a function of the president’s power to conduct foreign policy.  See, e.g., Martin v. Warden, 993 F.2d 824, 828 (11th Cir. 1993).  As such, without an extradition treaty, Bucky can’t be extradited.

Of course, that’s here in the real world.  It’s entirely possible that Russia and the United States have an extradition treaty on Earth 616.  If that’s the case, are there any other issues?

You might think that being convicted in absentia is a problem.  What about due process, after all?  Unfortunately for Bucky, it is not clear that trying someone in absentia is even prohibited by the US Constitution, and there is case law supporting the extradition of defendants convicted in absentia in a foreign country.  Crosby v. United States, 506 U.S. 255 (1993) (holding that Fed. R. Crim. P. 43 permits trials in absentia in at least some cases, declining to address constitutional issue); Gallina v. Fraser, 278 F.2d 77 (1960) (permitting extradition of a defendant convicted in absentia in Italy).

In fact, because extradition is an executive function, the role of the courts in an extradition proceeding is a minimal gatekeeping function.  Basically the only question for the court is “are the terms of the extradition treaty being complied with?”  This is called the doctrine of non-inquiry, which “precludes extradition magistrates from assessing the investigative, judicial, and penal systems of foreign nations when reviewing an extradition request.”  Martin, 993 F.2d at 829.  As the Supreme Court explained in Neely v. Henkel, 180 U.S. 109, 123 (1901):

When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.

So Bucky probably couldn’t complain to a court, but luckily that’s not the last stop in the process. Here’s an explanation of the process from a court case:

The [extradition] statute establishes a two-step procedure which divides responsibility for extradition between a judicial officer and the Secretary of State.  In brief, the judicial officer, upon complaint, issues an arrest warrant for an individual sought for extradition, provided that there is an extradition treaty between the United States and the relevant foreign government and that the crime charged is covered by the treaty.  If a warrant issues, the judicial officer then conducts a hearing to determine if “he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty.”  If the judicial officer makes such a determination, he “shall certify” to the Secretary of State that a warrant for the surrender of the relator “may issue.” It is then within the Secretary of State’s sole discretion to determine whether or not the relator should actually be extradited.

United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997).  Thus, Bucky (perhaps via his friends in high places) could petition the Secretary of State not to extradite him to Russia.  If Russia doesn’t like the decision, its only recourse is diplomatic; extradition treaties generally don’t have enforcement provisions.

So as long as we’re willing to assume 1) that Russia and the US have an extradition treaty on Earth 616 and 2) that Bucky exhausted his political capital already, then it’s entirely possible for Bucky to be extradited under the circumstances presented in the comic.

11 responses to “The Trial of Captain America, Part 2

  1. Even ignoring the legal issues I have to say it’s a strange idea. The U.S, which has just gone through a devastating superhuman civil war, not only convicts him but also extradites him to Russia? Did the writers ever bother to read a paper and notice Victor Bout or Andrey Lugovoy?

  2. Are there any legal methods the writer (Brubbaker?) could have used to get Bucky into the Russian prison? Obviously if Bucky travelled to Russia on his own the Russians could have just picked him up, or he could have left with them voluntarily, but is there anyway they could have forced him to go?

    • Didn’t they just list exactly how the fictional government could (legally) force Bucky to go? He was found guilty of a crime by a Russian court (though the justice in that is dubious at best) and extradited by the U.S to Russia. Like they said, so long as we assume that in the comic the U.S has an extradition treaty with Russia it’s legal.

    • Apart from the method I discussed in the post, one possibility might be extradition from a third country with whom Russia has an extradition treaty. This is akin to how Roman Polanski was arrested in Switzerland while the US attempted to extradite him to the US. While he was in France he was safe, but once he left he opened himself up to extradition. In Polanski’s case he was ultimately let go, but it’s a theoretical possibility.

      I can’t find a list of Russian extradition treaties, but I found references to treaties with China and Azerbaijan, so they do exist.

      Another possibility would be if Bucky was taking a flight near Russia when weather or other circumstances (possibly engineered by the Russians) caused the plane to have to divert to a Russian airport. That gets Bucky into Russia involuntarily while retaining plausible deniability for the Russians.

  3. What is the nature of the treaty the U.S. has with Brazil? Is the American military or FBI really free to do what it likes in Brazil? I mean, there’s the last Hulk movie in which what are in effect mercenaries (one of them was British) is sent after Bruce Banner while he’s in Brazil and then there’s Fast 5 in which Dwayne “The Rock” Johnson leads a paramilitary force that goes after Vin Diesel et al while they are in Brazil. The Rock not only tells the local police to “stay the @#$%”out of his way but at the end of the movie he spoilers with spoiler and spoilers the spoiler! We discussed the matter of acts of war with regards to the First Class movie but, my God, if spoilering the spoiler isn’t an act of war then I guess American involvement in Vietnam, Grenada and Panama weren’t acts of war either. I imagine Brazil has it’s own army and federal police and if there are fugitives hiding in Brazil and Brazil has an extradition treaty with the U.S. (which is does) then Brazil would deal with it themselves and not agree with having any American forces, be they military or FBI on their soil.

  4. One of the aspects of extradition I find puzzling is that you can be extradited to a country you’ve never visited – it seems to me this kind of makes a mockery of the quote from Neely v. Henkel. Is there any precedent for the courts to deviate from the doctrine of non-inquiry in such cases?

    • A determining factor might be the crime in question as well as whether the person was a citizen of the U.S. For example a South American dictator might be charged with financial crimes in France over money that was illegally put in a French bank even if they never set foot in France. Alternatively someone responsible for genocide might be extradited to a nation that allows people to be charged with crimes that didn’t take place in that country.

      • That is absolutely correct. This is why you won’t see top members of the Bush/Cheney administration travelling to Spain or Germany as both countries allow the prosecution of war crimes that took place anywhere in the world.

  5. Also extradition treaties tend to have provisions in them that limit the host country’s responsibility in the extradition process to crimes that are regarded as such in both countries (ie both the host country and the requesting country must regard the action as a comparable crime). If Bucky was convicted of crimes against the Russian state, that is likely not a crime in the US (as opposed to the other examples noted above – Polanski’s sexual relations with a minor, banking crimes, etc). If that’s true, then the US would challenge the request for extradition, even in the presence of a valid treaty.

  6. Pingback: SF Tidbits for 9/25/11 - SF Signal – A Speculative Fiction Blog

Leave a Reply

Your email address will not be published. Required fields are marked *