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Ad hoc, case-by-case extraditions have the potential to attenuate some of the problems associated with Sino-U.S. extradition attempts because the countries would be able to negotiate new terms for each individual extradition. The procedure for responding to extradition requests is for the foreign embassy (in this case the Chinese Embassy in the United States) to make a request to the Department of State, which reviews and forwards the request to the Office of International Affairs in the Criminal Division of the Department of Justice. This office assigns an Assistant U.S. Attorney to the case, and he or she obtains a warrant to arrest the fugitive. The arrested fugitive is then brought before a federal magistrate or district court judge for a hearing, during which the judge will determine whether the fugitive is extraditable. [FN178] There is only a very narrow avenue within U.S. law for formally extraditing an individual to a requesting state absent a treaty. In 1996, the U.S. Congress amended federal law to provide for extradition from the United States, even in the absence of a treaty, of foreign nationals who have committed crimes of violence against U.S. nationals outside the United States. [FN179] If the court finds the fugitive to be extraditable to China under this law, it will enter an order of extraditability and certify the record to the Secretary of State, who then must decide whether to surrender the fugitive to the requesting government. The Secretary of State may take human rights or any other considerations into account in making this decision. [FN180]

Because U.S. law limits extradition absent a treaty to this one narrow circumstance, the United States usually refuses to extradite a suspect to China. [FN181] Beyond this narrow window for formal extradition absent a treaty, though, in some circumstances, U.S. immigration laws permit the removal of individuals sought by other countries when extradition by treaty is not available. [FN182] The U.S. government acknowledges that immigration laws can be used to “rid [the] country of dangerous criminal aliens and fugitives from foreign justice in certain circumstances where formal extradition is not *201 available.” [FN183] In response to Chinese requests, the United States has used alternative methods to return criminal suspects to China when extradition was not feasible. [FN184]

The case of Qin Hong is one example of the United States returning a Chinese national to China indirectly. Qin allegedly cheated Shanghai investors out of hundreds of millions of dollars. Chinese authorities had supplied documentary evidence demonstrating that Qin had entered the United States years earlier using a false identity, which made him subject to arrest and deportation under U.S. immigration laws. However, because Qin had been carrying a Panamanian passport at the time of arrest, a U.S. immigration judge removed him to Panama. Then, according to senior officials, the United States informally urged Panama to send Qin back to China, which a Panamanian court did. [FN185]

The prominent case of Yu Zhendong represents another example of the use of immigration law to return criminal suspects to China. Yu was the head of a Bank of China branch in Guangdong province. He was accused of embezzling US$485 million with several co-conspirators as part of a scheme to “launder the stolen money through Hong Kong, Canada, and the United States, among other countries, and then to immigrate to the United States from China with their wives by obtaining a false identity and entering into a sham marriage with a naturalized U.S. citizen.” [FN186] The United States charged Yu with racketeering under U.S. law (after receiving significant evidence from the Chinese), and he pleaded guilty in U.S. federal court in Las Vegas in 2004. [FN187] After pleading guilty, Yu stipulated to a judicial order of removal enabling the United States to return him to China, which gave assurances to the United States that he would not be executed or tortured and that he would not be sentenced to more than twelve years in prison. [FN188] Yu’s co-conspirators have not pleaded guilty, were indicted by a Las Vegas federal grand jury on charges of racketeering, money laundering, and fraud, and are awaiting trial. [FN189] While cooperation in the return of criminal suspects to China does not have the same benefits for U.S. trade interests as it would for businesses in other nations because of the already enormous flow of goods and capital between the two countries, [FN190] the extradition or deportation of criminal suspects to China can generate goodwill for the U.S.-China relationship. The *202 Chinese saw the United States’s willingness to return Yu to China in response to his consent and their diplomatic assurances as “setting an example of sound China-U.S. judicial cooperation.” [FN191]

IV. Analyzing the U.S. Case-by-Case Approach Contra the Other Approaches

In contrast to Spain, France, Portugal, and Australia, it still is unlikely that the United States will enter into an extradition treaty with China because of U.S. reservations about the lack of due process provided by the criminal justice system and the generally poor human rights record in China. [FN192] Yet, as the above Section described, the United States occupies a nebulous middle ground between the treaty-based and the non-engagement approaches. It is too concerned about human rights to enter into a treaty, but it is willing to cooperate with China on an ad hoc basis so as not to be labeled a “safe haven” for fugitives. This Part evaluates the U.S. approach vis-à-vis the two extremes. [FN193] The first Section defines the interests that are important to the United States when it considers extradition with China. The following three Sections analyze whether the current U.S. approach is well-designed to realize these interests.

A. Defining Interests in U.S. Extradition Policy

States take a variety of interests into account when formulating extradition policy. While the general interest in controlling international crime is near-universal, other interests are country-specific. For example, China’s primary interest in improving extradition practices is to clamp down on corruption. [FN194] Meanwhile, the nations that have adopted the treaty-based approach seem particularly interested in cooperating on international crime suppression as a way to enhance business ties. [FN195] As Canada forms its policy for extradition with China, it is particularly interested in maintaining its position as a preeminent protector of human rights. [FN196]

A threshold question for analyzing the effectiveness of the U.S. approach, then, is: what interests are important to the United States as it forms its policy for extradition with China? The United States has made clear that its primary reason for increasing cooperation with other states in extradition is to build goodwill in order to gain international judicial assistance in prosecuting *203 the war on terror. [FN197] Indeed, extradition and other forms of judicial cooperation can be important tools for bringing terrorists to justice and maintaining social order. [FN198]

U.S. officials also purport to be very concerned with the rights of individuals facing extradition proceedings. [FN199] Indeed, the United States has long subscribed to the idea that a requested state should make a determination of whether a requesting state will protect the individual rights of a fugitive before deciding whether to extradite. [FN200] However, the United States’s overall human rights record in the context of international crime cooperation has been mixed. Alleged U.S. participation in extraordinary renditions, [FN201] for example, suggests a divide between U.S. rhetoric and practice in the protection of individual rights. Still, taking the U.S. government at its word, it is interested in protecting individual rights in extradition.

The ability of the United States (as the requested state) to consider the domestic human rights practices of a requesting state like China coupled with the ongoing debate in China about whether to abolish the death penalty for nonviolent crimes gives rise to a third U.S. interest: the interest in pressuring China to reform its human rights practices. Despite criticisms that it is meddling [FN202] or being hypocritical, [FN203] the United States has long been interested in pressuring China to reform its human rights practices and has pursued this strategy in a variety of ways. [FN204] Insofar as the experience of *204 Spain, France, Portugal, and Australia has demonstrated that extradition can influence the human rights debate in China because the Chinese are so intent on stamping out corruption, the United States will be interested in shaping its extradition policy in a way that will increase, rather than alleviate, the pressure on China to enact human rights reforms. The United States can justify including a push for broad-based human rights reform through extradition as one of its main interests, along with its interest in prosecuting terrorism and its interest in protecting the rights of the requested individual. These interests are not in tension with one another; the United States can pursue all three through one coherent strategy.

B. The U.S. Approach and Cooperation in the Pursuit of Terrorists

In the aftermath of the September 11, 2001 terrorist attacks, the U.S. government quickly sought to obtain the support and cooperation of foreign states. [FN205] While China may not be the most likely safe haven for terrorists that the United States desires, the United States saw important benefits to enlisting the full support of China in the counterterrorism effort post-September 11th. These benefits included support in United Nations Security Council deliberations; [FN206] gaining information related to terrorism from Beijing [FN207] and ensuring that the Chinese government would refrain from protesting bombings in Afghanistan; the assignment of U.S. forces to the area; and “discussions of nation-building for postwar Afghanistan.” [FN208] Such actions would typically invite significant criticism from China, [FN209] but the U.S. approach of deciding whether to extradite or deport criminal suspects requested by China on an ad hoc, case-by-case basis–backed up by a willingness to follow through with returning suspects as demonstrated by the Yu Zhendong case–proved sufficient to gain cooperation from the Chinese. The Sino-U.S. bilateral relationship improved as a result of U.S. cooperation, [FN210] and China set aside traditional security considerations and supported the United States’s call for a global campaign against terrorism. [FN211]