When a U.S. administration decides to do a prisoner swap with another country, how does the US judicial system handle the request?

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What are the mechanisms that are in play, for example in the recent swap of prisoners for the American citizens that were held in Iran? Is it a presidential pardon? Or is there some other constitutional device?

Sabuncu

Posted 2016-01-19T09:03:58.520

Reputation: 231

Are you talking about prisoners of war according to the geneva convention, judical prisoners accused of or convicted for crimes or extra-judical prisoners held without charges? – Philipp – 2016-01-19T11:38:40.827

1@Philipp I have no idea about the classification of those sent to Iran from the U.S. in the prisoner swap. But I am mostly interested in judical prisoners accused/convicted of crimes, since those fall clearly under the judiciary. How is it that the U.S. branches act as one to implement something like this? – Sabuncu – 2016-01-19T12:17:20.413

Convicted individuals can be returned to their native country to serve out their sentence without any swap taking place... – DJohnM – 2016-01-19T18:51:03.407

@DJohnM When you can dig out the legal source for this you could post this as an answer. – Philipp – 2016-01-20T08:48:19.683

@DJohnM Good point, but my understanding is that there has to be a bilateral agreement b/w the countries. That probably does not exist b/w the U.S. and Iran. – Sabuncu – 2016-01-20T15:27:54.223

US Extradition Law 18 U.S. Code § 3181 "The provisions of this chapter ... shall continue in force only during the existence of any treaty of extradition with such foreign government." Extradition does require a bilateral agreement. There are others ways to swap prisoners, as I've noted in my answer below, but I'm not sure if the exact scenario @DJohnM laid out is possible. If the individual broke both US law and their native country's law then a situation like that may take place. – Bill Keller – 2016-01-20T20:38:00.797

This Corrections Canada site http://www.csc-scc.gc.ca/international-transfers/index-eng.shtml and its links outlines how a Canadian, convicted of an offense outside Canada, can serve his/her sentence in Canada without a "swap" taking place. I agree that such an arrangement between US and Iran is unlikely...

– DJohnM – 2016-01-20T21:44:46.600

Answers

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Those released by the United States as part of the Exchange between Iran and the United States are Nader Modanlo, Bahram Mechanic, Khosrow Afghahi, Tooraj Faridi, Arash Ghahreman, Nima Golestaneh and Ali Saboonchi. (NY Times) All of these prisoners had broken United States Law and not Iranian Law so, even if an extradition treaty between the US and Iran existed (which it doesn't) they would not be eligible. Extradition treaties are, correct me if I'm wrong here, mostly about extraditing people who have broken the law in one country and fled to another.

They received pardons or commutations directly from the President. From the Department of Justice:

"List of Individuals Receiving Pardons/Commutations

Below is a list of the seven defendants who either received pardons or commutations.

Khosrow Afghahi – Southern District of Texas (Pardon) Offenses: One count of conspiracy to violate the Iranian embargo and the Export Administration Regulations (EAR), one count of violating the Iranian embargo, one count of conspiracy to commit money laundering and one count of money laundering.

Tooraj Faridi – Southern District of Texas (Pardon) Offenses: One count of conspiracy to violate the Iranian embargo and the EAR, two counts of violating the Iranian embargo and one count of conspiracy to commit money laundering.

Bahram Mechanic – Southern District of Texas (Pardon) Offenses: One count of conspiracy to violate the Iranian embargo and the EAR, six counts of violating the Iranian embargo and the EAR, five counts of violating the Iranian embargo, one count of conspiracy to commit money laundering, eight counts money laundering and one count of failure to file Reports of Foreign Bank and Financial Accounts (FBARs).

Nima Golestaneh – District of Vermont (Pardon) Offenses: Four counts of wire fraud, one count each of conspiracy to access a computer without authorization and accessing a computer without authorization.

Nader Modanlo, aka Modanlu and Modanlou – District of Maryland (Commutation) Offenses: One count of conspiracy to violate the Iranian embargo, two counts of violating the Iranian embargo, one count each of money laundering and obstruction of bankruptcy proceedings.

Arash Ghahreman – Southern District of California (Commutation) Offenses: One count of conspiracy to violate the Iranian embargo, one count of conspiracy to smuggle goods from the United States, one count of attempting to violate the Iranian embargo, one count of smuggling, one count of conspiracy to money launder and two counts of money laundering.

Ali Saboonchi – District of Maryland (Commutation) Offenses: One count of conspiracy to violate the Iranian embargo and seven counts of violating the Iranian embargo."

Fandos, Nicholas, "Details of 7 Iranians Granted Clemency in Prisoner Swap", New York Times, Jan. 17, 20156 http://www.nytimes.com/2016/01/18/world/middleeast/a-look-at-the-seven-iranians-released-by-the-us.html)

DOJ "List of Individuals Receiving Pardons/Commutations" Department of Justice, Office of Public Affairs, January 17, 2016, http://www.justice.gov/opa/pr/list-individuals-receiving-pardonscommutations

Bill Keller

Posted 2016-01-19T09:03:58.520

Reputation: 461