The Consideration of Factual Issues in Extradition Habeas

The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering de novo the evidence presented at the extradition hearing, and petitioners are disallowed from introducing evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. I argue that the nature of habeas corpus as an original and independent civil procedure requires that petitioners be allowed to introduce evidence, and demands that habeas courts review de novo the determinations of probable cause by extradition magistrates, rather than through low level standards of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.