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important exception to this rule. It is, however, limited to 6s. See Art. 5, U.C.M.J., 10 U.S.C. 805 (1970); Toth v. Quarles,
individuals on active duty in the Armed Forces.) 68 AC- 350 U.S. 11 (1955); Reid v. Covert, 354 U.S. 1 (1957); Kinsella v.
cordingly, the U.S. enters into extradition treaties provid- Kruger, 361 U.S. 234 (1960); McElroy v. U.S. ex re]. Gungliardo, 361
ing only limited requirements for extradition of nationals U.S. 281 (1960); U.S. v. Averette, 19 U.S.C.M.A. 363,41 C.M.R. 363
(1970). The Supreme Court casesheld unconstitutional a Congressional
to civil law countries. 69 grant of limited authority for the exercise of court-martial jurisdiction
(5) In order to avoid creating absolute immunity for over discharged servicemen (Art. 3(a), UCMJ, 10 U.S.C. 5 803(A)
citizens who have committed crimes outside of its territo- (1970)), and civilian employees and other persons accompanying the
ry, the United States is generally willing to allow extradi- Armed Forces outside the United States (Art. 2(11), UCMJ, 10 U.S.C.
tion of its nationals on a reciprocal basis. 70 Civil law coun- 5 802(11) (1970)). The Court of Military Appeals in the Averette case
tries are reluctant to agree to this, however. 71 The U.S. decided that a provision of the Code (Art. 2(10), UCMJ, 10 U.S.C. 5
802(10) (1970)), purporting to grant jurisdiction over civilians amm-
also generally includes a clause in its extradition agree- panying the Armed Forces oversees in wartime was not operative is an
ments which permits both states to deliver fugitive citizens undeclared war such as the Vietnam conflict. For an excellent discussion
when, in their discretion, they decide to do so. 72 The U.S. of whether existing Status of Forces Agreements might be used as a
Supreme Court has upheld the validity of the refusal to substitute for extradition proceedings, see W. Norton, United States
Obligation. Under Status of Forces Agreements: A new Method of Ex-
extradite an American citizen who proved that the re- tradition?, 1973 (unpublished thesis, The Judge Advocate General's
questing state, in clear violation of its bilateral treaty com- School of the Army).
mitments, had refused to extradite its own nationals to the 69. I. Shearer, supra, note 65 at 68-72. Under the doctrine of,
United States. 73 Multilateral extradition conventions Charlton v. Kelly, 229 U.S. 447 (1913), extradition treaties containing
which recognize the principle of nonextradition of na- no mention of the nationality of the fugitive compel the United States to
surrender American citizens if all the other requirements of the treaty
tionals generally provide that if the asylum state refuses to are satisfied.
extradite a national, it shall itself prosecute the person re- 70. 1. Shearer, supra, note 65 at 110. See, e.g., Extradition Treaty
quested. 74 with Bavaria, Preamble, Sept. 12, 1853 [I8541 10 Stat. 1022, T.S. No.
b. The U.S.Extradition Process. Depending on munic- 17.
71. See, e.g., Grundgesetz, Art. 16(2) (1949) w.Ger.). At least
ipal law, extradition may be exclusively an executive func- one miter from a civil law country considers that nonextradition of na-
tion or may require a judicial hearing. The United States tionals is almost a principle of international law. S. Lazareff; Status of
requires a judicial hearing of the evidence against the fugi- Military Forces under Current International Law, 232, 266 (1971).
tive. 75 Article 9 of the 1931 Extradition Treaty between 72. The extradition treaties with the following countries came into
the United States and Great Britain provides: "The ex- effect after the November 9, 1936, Supreme Court decision in United
tradition shall take place only if the evidence be found States ex rel. Valentine v. Niedecker, 299 U.S.5. Five contain provisions
permitting extradition of the requested state's nationals when that
sufficient, according to the laws of the High Contracting state's appropriate authorities deem it proper: Liberia, Nov. 1, 1937,
Party applied . . . to justify the committal of the prisoner [I9391 54 Stat. 1733, T.S. No. 955; Sweden, Oct. 24, 1961 [I9631 14
for trial, in case the crime or offense had been committed U.S.T. 1845, T.I.A.S. No. 5496; Brazil, Jan. 16, 1961, [I9641 15 U.S.T.
in the territory of such High Contracting Party. . .." 76 If, 2093, T.I.A.S. No. 5691; New Zealand, Jan. 12,1970, [I9701 22 U.S.T.
1, T.I.A.S. No. 7035; France, Feb. 12, 1970, [I9711 22 U.S.T. 407,
on such hearing, [the judge] deems the evidence ~~cient T.I.A.S. No. 7075; Spain, May 19,1970, [I9711 22 U.S.T. 737, T.I.A.S.
to sustain the charge under the provisions of the proper No. 7136; Argentina, Jan. 21, 1972, [I9721 23 U.S.T. 3501, T.I.A.S.
treaty or convention, he shall cem the same, together No. 7310. The only presently effective United States extradition treaty
with a copy of all the testimony taken before him, to the which precludes surrender of nationals and which was signed after the
Secretary of State. The Secretary of State then may grant Valentine decision is the Extradition Treaty with Monaco.
or refuse extradition. 77 The function of the judicial hear- Older United States extradition treaties permitting discretionary sur-
render of nationals and in effect on January 1, 1976, were with the
ing is to permit the fugitive to insure that the proceedings following countries: Japan, Apr. 29, 1886, [I8861 24 Stat. 1015, T.S.
comply with the applicable statutes and treaties. He may No. 191; Mexico, Feb. 22, 1899, [I8991 31 Stat. 1818, T.S. No. 242;
produce evidence that he did not commit the offense or Argentina, Sep. 26, 1896, [I9001 31 Stat. 1883, T.S. No. 6; Guatamala,
object that the offense was political. The decision of the Feb. 27, 1903, [I9031 33 Stat. 2147, T.S. No. 425; Nicaragua, Mar. 1,
committing magistrate on the sufficiency of the evidence 1905, [I9071 35 Stat. 1869, T.S. No. 462; Uruguay, Mar. 11, 1905,
[I9081 35 Stat. 2023, T.S. No. 501. U.S. Dep't of State, Treaties in
is not subject to correction by appeal. 78 The fugitive may, Force (1972).
however, petition for a writ of habeas corpus to challenge 73. Charlton v. Kelly, 229 U.S. 447 (1913); see also, Neely v.
the legality of his detention and may urge upon the Secre- Henkel, 180 U.S. 109 at 123 (1901).
74. See, e.g., Convention on Extradition, signed at Montevideo,
tary of State that his extradition not be granted. 79
Dec. 26, 1933, Art. 2, 49 Stat. 3111, T.S. 882, 165 L.N.T.S. 45.
c. Normtradition for Political Offenses. In the eight- 75. 18 U.S.C.A. 5 3184.
eenth century, extradition was most frequently sought 76. 47 Stat. 2125.
and canted for what are now termed political offenses. By 77. 18 U.S.C.A. 5 3184.
the nineteenth century, public opinion in Western Europe 78. Collins V. Mier, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64
turned against the extradition of fugitives accused of only L.Ed. 616 (1920).
79. As has been noted, the U.S. extradition process is governed by
political offenses. Belgium, which enacted the first ex- Federal law, 18 U.S.C.A. 5 3184-3195. A complete treatment of U.S.
tradition law in 1833, incorporated the principle of nonex- extradition procedures is found in 6 M. Whiteman, Digest of lnternu-
tradition for political offenses into the law. Today, most tional hw 905-1 117 (1968).