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.