Interview with Extradition Expert Jacques Semmelman
Mr. Semmelman discusses the challenges of international extradition law and why the U.S. government has such an advantage over defendants.
Joaquín Guzmán Loera, known as El Chapo, being escorted by U.S. agents after being extradited from Mexico to the United States. Photo: Jeso Carneiro.
By: Noam E. Zolty, Staff Member
Jacques Semmelman. Photo: Curtis, Mallet-Prevost, Colt & Mosle LLP.
Mr. Jacques Semmelman has been a partner at Curtis, Mallet-Prevost, Colt & Mosle since 1994. He previously served as an Assistant U.S. Attorney for the Eastern District of New York. Recognized as one of the top litigation attorneys in New York by Super Lawyers, he has extensive experience working in international criminal law and is recognized for his work on extradition. He has been involved as counsel in several high-profile extradition cases. Additionally, he has published numerous law review articles and has lectured extensively on the subject. His articles have been cited by numerous courts, including the U.S. Courts of Appeals for several federal circuits and he has been described by the Supreme Court of British Columbia as “a leading expert on extradition proceedings in the United States,” with “broad practical and academic experience.”
In this interview, Mr. Semmelman talks about how he got involved in international extradition, some aspects of the law which may not be very well known, and possible developments he foresees in the coming years.
This interview has been edited for clarity and length.
How did you get involved in extradition work, and what do you find so interesting about that area of the law?
When I was in law school, I was interested in criminal law, but not particularly in international law, and when I started my legal career, I mainly did domestic criminal and civil litigation. I went to work for the U.S. Attorney’s office in the EDNY in 1987, and on my first day on the job, I was assigned an extradition case involving an individual who had allegedly committed a terrorist act in Israel. Israel was requesting that the United States extradite the defendant to stand trial for murder. The defendant was represented by Ramsey Clark, the former U.S. attorney general. The case had many twists and turns, and initially, extradition was denied. We were able to refile and ultimately won the case.
The case touched upon a variety of interesting issues in the area of international criminal law, such as the Ker-Frisbie Doctrine (the rule that criminal defendants may be prosecuted in the United States, regardless of how their presence has been obtained), the rule of non-inquiry (which prohibits a U.S. court from inquiring into the requesting country’s judicial system or human rights record when determining whether to extradite the defendant), and what kind of evidence may be presented by the prosecution and by the defense at an extradition hearing. I learned during the case just how multi-faceted extradition law is. I also realized there were potential law review articles embedded in the experience, and that there were multiple extradition-related issues that had not been fully addressed in the scholarly literature.
Since then, I have written several articles on the unique complexities of extradition law that have been published in international law-focused journals, including the CJTL. In addition, within my practice, I have advised several foreign governments on extradition issues, and have represented individual defendants in extradition cases. I often serve as a strategic consultant in extradition cases, in which I am not necessarily counsel of record, but guide the strategy of the extradition case. I have done this for foreign governments seeking extradition, and for individuals resisting extradition, either from the United States or from foreign countries. I find that even some of the best criminal defense lawyers do not know much about extradition law. It is a very specialized field that requires a deep understanding of the complexities of the extradition laws of the United States and those of foreign countries. I believe there are not very many truly qualified extradition practitioners in this country.
What is the most challenging aspect of extradition defense?
It is important to recognize that extradition law is a two-way street, that is, extraditing into the United States, and extraditing defendants out of the United States. In terms of the latter, it is generally easy to extradite out of the United States. I would estimate that in over 95 percent of extradition cases, the court finds the accused extraditable. There are various reasons for this. To start with, the standard the government must meet is probable cause, which is a very low standard.
In addition, there is the rule of noncontradiction, which states that the accused can explain but cannot contradict the evidence put forth by the government, which is a very onerous standard for the defense. If there is circumstantial evidence, all the defendant can do is try to explain why it is not inculpatory. If a conspirator implicates the defendant in the crime and the government uses this as evidence, the defendant is not allowed to dispute this evidence. Even recantation by the accusing witness does not necessarily vitiate the original accusation, and the case law in this area is complex and inconsistent. In addition, the government is allowed to introduce hearsay evidence, as well as other forms of evidence that would not be admissible in other types of proceedings. At the same time, the defense is severely constrained in what evidence it can introduce. It is a very lopsided playing field. In short, in a proceeding to extradite someone out of the United States, the government holds virtually all the cards, while the defense holds almost none.
By contrast, European courts are much more reluctant to allow extradition to another country if they conclude that the defendant might not receive a fair trial, may be at risk of suffering from mental harm, or may be incarcerated under difficult prison conditions that fall below the standards of the courts’ respective countries. We recently saw this strategy work in the Julian Assange case, where the British court denied extradition due to concerns over his mental health and the prison conditions he might face. In conclusion, there is a much higher chance of a successful defense against extradition in European courts than in the United States.
With the new presidential administration, have there been or will there be any policy changes to U.S. extradition policy?
In terms of extraditing out of the United States, I do not see any change, as the court system handles this process until the final stage, when the Secretary of State makes the ultimate decision whether to extradite. Historically, there have been very few cases where the courts have found someone extraditable, but the Secretary of State refused to extradite. That being said, it is very unlikely that the State Department would begin an extradition proceeding if a country like Cuba — with whom the U.S. has had an extradition treaty since 1904 — requested someone’s extradition. I do not see a material difference between a Republican or Democratic administration in that regard.
However, a request to extradite someone into the United States is different because the U.S. government has to decide which defendants it wants to bring to the United States for prosecution. This decision entails various considerations, including our relationship with the country in which the accused is located; the nationality of the accused, who might be from a different country; whether there are less formal means than extradition for securing custody of the accused; whether a court battle in the foreign country is worth the effort; and other factors.
Does the rule of non-inquiry apply to countries with poor human rights records or with very opaque judicial systems such as Venezuela and Myanmar, or is the United States more reluctant to extradite based on the countries’ due process rights and judicial system?
Yes, as I mentioned, U.S courts may not take those factors into account. But the State Department will take that into account in deciding whether to initiate an extradition proceeding in the U.S. courts. That is where the filtering takes place. After the judicial process has concluded, those considerations may be taken into account at the State Department-level in determining whether to grant the extradition request, although a denial of extradition at that stage is unusual. However, it is not a reciprocal rule and does not bind foreign courts from taking into account how the United States would treat the defendant, that is, if he would get a fair trial or would be incarcerated under conditions that the foreign court or governments find unacceptable. That is what happened in the Julian Assange case.
Is there any recourse for the United States to extradite an individual from a country from which the United States does not have an extradition treaty, such as Edward Snowden from Russia?
The United States will not extradite to another country absent an extradition treaty or, in very specific situations, a sui generis extradition statute. In the other direction, some European countries will extradite based on the notion of international comity, and there are cases in which extradition has been granted even when the United States did not have an extradition treaty with the respective country. Some countries are much less formal in their extradition procedures. They are often eager to get rid of their “wrongdoers,” even without due process. That being said, it is very unlikely Snowden will be extradited anytime soon.
In the news recently was the extradition of Michael Taylor, who allegedly helped Carlos Ghosn escape detention in Japan. He was recently extradited to Japan despite only having been arrested in late May, a span of only ten months. Seeing how most judicial proceedings take significantly longer, is it normal for extradition cases to be settled so quickly?
It varies. Some cases move very quickly. One case I handled as an AUSA took three years. But courts like to move cases along. There is no direct appeal from an extradition decision. The accused must file a habeas corpus petition in the district court, and can appeal an adverse decision. The scope of appellate review of a habeas denial is limited, and seldom results in overturning the district court’s decisions.
Do you believe that in the coming years defendants in extradition cases from the United States will gain more due process rights?
Yes, but very incrementally. To paraphrase a magistrate judge: “There is some flex in the joints.” There are some rules that are very rigid, like the rule of non-inquiry. Some rules are more flexible. For example, depositions are rare, but I have had one case on the defense side where the court allowed the deposition of U.S. government agents. I believe the area in which defendants’ rights might be expanded is the area of discovery. While there is no specific rule that grants a right to discovery, there is also no rule against it, and I would recommend extradition practitioners to push for more discovery in their cases.
In conclusion, there is room for movement, but nothing drastic on the horizon, and defendants will continue to be at a serious disadvantage for the foreseeable future.
Noam Zolty is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Yeshiva University in 2019.