Elizaphan NTAKIRUTIMANA, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States; Madeleine Albright, Secretary of State of the United States; Juan Garza, Sheriff of Webb County, Texas, Respondents-Appellees.
No. 98-41597.
United States Court of Appeals, Fifth Circuit.
Aug. 5, 1999.
184 F.3d 419
At the time of Depew‘s sentencing, subsection (b)(5)(B) applied to defendants who kidnapped victims “to facilitate the commission of some other offense,” directing courts to “apply the guideline for such other offense” if it would result in a higher offense level
CONCLUSION
We affirm Smith‘s convictions. We vacate her sentence and remand for re-sentencing.
AFFIRMED in part; VACATED in part and REMANDED.
EMILIO M. GARZA, Circuit Judge:
Elizaphan Ntakirutimana appeals the district court‘s denial of his habeas corpus petition that challenged the district court‘s grant of a second request for surrender. He alleges that the district court erred because (1) the Constitution of the United States requires an Article II treaty for the surrender of a person to the International Criminal Tribunal for Rwanda (“ICTR” or “Tribunal“),1 (2) the request for surrender does not establish probable cause, (3) the United Nations (“U.N.“) Charter does not authorize the Security Council to establish the ICTR, and (4) the ICTR is not capable of protecting fundamental rights guaranteed by the United States Constitution and international law. We affirm.
Ramsey D. Clark, Lawrence W. Schill-ing, New York City, for Petitioner--Appellant.
Sara Paul Criscitelli, U.S. Department of Justice, Washington, DC, for Respondents-Appellees.
Donald Francis Donovan, Paul Bradley O‘Neill, Debevoise & Plimpton, New York City, for Lawyers Committee for Human Rights, Amicus Curiae.
I
Rwanda has been the source of ongoing ethnic conflict between members of the majority Hutu and minority Tutsi tribes. In April 1994, President Juvenal Habyarimana of Rwanda, a Hutu, was killed when his aircraft crashed due to an artillery attack. The crash triggered a wave of violence by the Hutus against the Tutsis, which resulted in the deaths of between 500,000 and one-million persons. Tutsi rebels triumphed over the Hutus, and the Tutsi-dominated government then requested the U.N. to create an international war crimes tribunal. An investigation by the U.N. established that the mass exterminations of the Tutsis—motivated by ethnic hatred—had been planned for months. The Security Council adopted Resolution
In 1995, the President of the United States entered into an executive agreement with the ICTR, entitled the Agreement on Surrender of Persons Between the Government of the United States and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States (“Agreement“). The Agreement provided that the United States “agrees to surrender to the Tribunal ... persons ... found in its territory whom the Tribunal has charged with or found guilty of a violation or violations within the competence of the Tribunal.” Agreement, art. 1, cl. 1, Jan. 24, 1995, U.S.-Int‘l Trib. Rwanda, 1996 WL 165484, at *1 (Treaty). In 1996, Congress enacted Public Law 104-106 to implement the Agreement. See
In June and September 1996, the ICTR returned two indictments against Pastor Ntakirutimana, charging him with the crimes of genocide, complicity in genocide, conspiracy to commit genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.3 At the time of the charges, Ntakirutimana, a Hutu, served as President of the Seventh Day Adventist Church for all of Rwanda. He was based in a church complex (the “Complex“) in Mugonero, Gishyita Commune, Kibuye Prefecture, Rwanda,4 and was well known in the Complex and the community. The first indictment alleges that, following the beginning of the wave of violence in 1994, Ntakirutimana and other individuals prepared and executed a plan by which they encouraged large numbers of the local Tutsis population to seek refuge in the Complex. They separated the Hutus from the Tutsis and encouraged the Hutus to leave. Ntakirutimana then raised an armed mob of Hutus, led them to the Complex, and directed the slaughter of the Tutsis who had sought shelter there. A Tribunal Judge con-
The second indictment charges Ntakirutimana with conduct that occurred after the massacre at the Complex. The survivors of the attack fled to the Bisesero area of Kibuye Prefecture, Rwanda. The indictment alleges that Ntakirutimana drove armed Hutu soldiers into the Bisesero region, hunted for hiding Tutsis, and ordered the soldiers to kill them. A Tribunal Judge confirmed the second indictment and issued another warrant for Ntakirutimana‘s arrest.
Ntakirutimana has legally resided in Laredo, Texas since he left Rwanda in 1994. The ICTR requested that the United States extradite Ntakirutimana to the ICTR pursuant to the Agreement. In September 1996, the Government filed a request for Ntakirutimana‘s surrender to the ICTR in the Southern District of Texas. A Magistrate Judge, serving as the judicial officer, denied the Government‘s request for surrender. He held that Public Law 104-106 is unconstitutional because, based on historical practice, extradition requires a treaty. See In re Surrender of Ntakirutimana, 988 F.Supp. 1038, 1042 (S.D.Tex.1997). He held alternatively that the request for surrender, and the supporting documents, did not provide probable cause to support the charges. See id. at 1044.
To address the evidentiary issues raised by the Magistrate Judge, the Government added two declarations, and filed another request for surrender in the same court.5
The district court certified the surrender to the ICTR.6 The court held that the Agreement and Public Law 104-106 provide a constitutional basis for the extradition of Ntakirutimana. Among other reasons, the court found that the Constitution sets forth no specific requirements for extradition, that the Supreme Court has indicated its approval of extraditions made in the absence of a treaty, and that there is precedent wherein fugitives were extradited pursuant to statutes that “filled the gap” left by a treaty provision. See In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708, at *9, 17 (S.D.Tex. Aug.6, 1998). The court also held that the evidence sufficed to establish probable cause for the charges against Ntakirutimana. See id. at *30. Ntakirutimana filed a petition for a writ of habeas corpus under
II
The scope of habeas corpus review of the findings of a judicial officer that conducted an extradition hearing is extremely limited. See Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir.1971). We inquire only into (1) whether the committing court8 had jurisdiction, (2) whether the offense charged is within the treaty, and (3) whether the evidence shows a reasonable ground to believe the accused guilty. See Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); Garcia-Guillern, 450
III
Ntakirutimana alleges that Article II of the Constitution of the United States requires that an extradition occur pursuant to a treaty. It is unconstitutional, he claims, to extradite him to the ICTR pursuant to a statute in the absence of a treaty. Accordingly, he claims it is unconstitutional to extradite him on the basis of the Agreement and Pub.L. 104-106 (the “Congressional-Executive Agreement“).9 The district court concluded that it is constitutional to surrender Ntakirutimana in the absence of an “extradition treaty,” because a statute authorized extradition. We review this legal issue de novo.10 See United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999), cert. denied, 526 U.S. 1126, 119 S.Ct. 1783, 143 L.Ed.2d 811 (1999) (reviewing constitutionality of extradition statute de novo).
To determine whether a treaty is required to extradite Ntakirutimana, we turn to the text of the Constitution. Ntakirutimana contends that Article II, Section 2, Clause 2 of the Constitution requires a treaty to extradite. This Clause, which enumerates the President‘s foreign relations power, provides in part that “[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls....”
Yet, the Court has found that the Executive‘s power to surrender fugitives is not unlimited. In Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936), the Supreme Court considered whether an exception clause11 in the United States‘s extradition treaty with France implicitly granted to the Executive the discretionary power to surrender citizens. The Court first stated that the power to provide for extradition is a national power that “is not confided to the Executive in the absence of treaty or legislative provision.” Id. at 8. The Court explained:
[The power to extradite] rests upon the fundamental consideration that the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must
be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that the statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.
The Court then considered whether any statute authorized the Executive‘s discretion to extradite. The Court commented that:
Whatever may be the power of the Congress to provide for extradition independent of treaty, that power has not been exercised save in relation to a foreign country or territory “occupied by or under the control of the United States.” Aside from that limited provision, the Act of Congress relating to extradition simply defines the procedure to carry out an existing extradition treaty or convention.
Id. at 9, 10. The Court concluded that no statutory basis conferred the power on the Executive to surrender a citizen to the foreign government. See id. at 10. The Court subsequently addressed whether the treaty conferred the power to surrender, and found that it did not. See id. at 18. The Court concluded that, “we are constrained to hold that [the President‘s] power, in the absence of statute conferring an independent power, must be found in the terms of the treaty and that, as the treaty with France fails to grant the necessary authority, the President is without the power to surrender the respondents.” Id. at 18. The Court added that the remedy for this lack of power “lies with the Congress, or with the treaty-making power wherever the parties are willing to provide for the surrender of citizens.” Id. at 18.
Valentine indicates that a court should look to whether a treaty or statute grants executive discretion to extradite. Hence, Valentine supports the constitutionality of using the Congressional-Executive Agreement to extradite Ntakirutimana. Ntakirutimana attempts to distinguish Valentine on the ground that the case dealt with a treaty between France and the United States. Yet, Valentine indicates that a statute suffices to confer authority on the President to surrender a fugitive. See id. at 9. Ntakirutimana suggests also that Valentine expressly challenged the power of Congress, independent of treaty, to provide for extradition. Valentine, however, did not place a limit on Congress‘s power to provide for extradition. See id. at 9 (“Whatever may be the power of the Congress to provide for extradition independent of treaty...“). Thus, although some authorization by law is necessary for the Executive to extradite, neither the Constitution‘s text nor Valentine require that the authorization come in the form of a treaty.
Notwithstanding the Constitution‘s text or Valentine, Ntakirutimana argues that the intent of the drafters of the Constitution supports his interpretation. He alleges that the delegates to the Constitutional Convention intentionally placed the Treaty power exclusively in the President and the Senate. The delegates designed this arrangement because they wanted a single executive agent to negotiate agreements with foreign powers, and they wanted the senior House of Congress—the Senate—to review the agreements to serve as a check on the executive branch. Ntakirutimana also claims that the rejection of alternative proposals suggests that the framers believed that a treaty is the only means by which the United States can enter into a binding agreement with a foreign nation.12
Ntakirutimana next argues that historical practice establishes that a treaty is required to extradite. According to Ntakirutimana, the United States has never surrendered a person except pursuant to an Article II treaty, and the only involuntary transfers without an extradition treaty have been to “a foreign country or territory ‘occupied by or under the control of the United States.‘” Valentine, 299 U.S. at 9. This argument fails for numerous reasons. First, Valentine did not suggest that this “historical practice” limited Congress‘s power. See id. at 9, 10. Second, the Supreme Court‘s statements that a statute may confer the power to extradite also reflect a historical understanding of the Constitution. See, e.g., id. at 18; Grin, 187 U.S. at 191; Terlinden, 184 U.S. at 289. Even if Congress has rarely exercised the power to extradite by statute, a historical understanding exists nonetheless that it may do so. Third, in some instances in which a fugitive would not have been extraditable under a treaty, a fugitive has been extradited pursuant to a statute that “filled the gap” in the treaty. See, e.g., Hilario v. United States, 854 F.Supp. 165 (E.D.N.Y.1994) (upholding extradition pursuant to a post-Valentine statute that granted executive discretion to extradite). Thus, we are unconvinced that the President‘s practice of usually submitting a negotiated treaty to the Senate reflects a historical understanding that a treaty is required to extradite.
We are unpersuaded by Ntakirutimana‘s other arguments. First, he asserts that the failure to require a treaty violates the Constitution‘s separation of powers. He contends that if a treaty is not required, then “the President alone could make dangerous agreements with foreign governments” or “Congress could legislate foreign affairs.” This argument is not relevant to an Executive-Congressional agreement, which involves neither the President acting unilaterally nor Congress negotiating with foreign countries. Second, Ntakirutimana argues that “statutes cannot usurp the Treaty making power of Article II.” The Supreme Court, however, has held that statutes can usurp a treaty. This is confirmed by the “last in
IV
Ntakirutimana contends next that the district court erred in dismissing his habeas petition because the request for surrender fails to establish probable cause. The Agreement with the ICTR requires that the Tribunal present “information sufficient to establish that there is a reasonable basis to believe that the person sought has committed the violation or violations for which surrender is requested.” Agreement, art. 2, cl. 3, 1996 WL 165484, at *1. This requirement is designed to meet our constitutional “probable cause” standard in reviewing the sufficiency of the evidence in extradition proceedings. In reviewing a request for surrender, the committing court must determine whether probable cause exists to sustain the charges against the accused. See Collins v. Loisel, 259 U.S. 309, 314-15, 42 S.Ct. 469, 471, 66 L.Ed. 956 (1922); Escobedo, 623 F.2d at 1102. Our function on habeas review “is to determine whether there is any competent evidence tending to show probable cause. The weight and sufficiency of that evidence is for the determination of the committing court.” Escobedo, 623 F.2d at 1102 (quotations and citations omitted); cf. Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.1986) (“Because the magistrate‘s probable cause finding is thus not a finding of fact ‘in the sense that the court has weighed the evidence and resolved disputed factual issues,’ it must be upheld if there is any competent evidence in the record to support it.” (citations omitted)).
The evidence at the extradition hearing consisted of several documents, all of which were admissible.13 Along with the first request for surrender, the Government included a declaration from Arjen Mostert, who served for six months as a Tribunal investigator. Mostert obtained the declarations of twelve witnesses, labeled A-L to protect their identities, who survived the Mugonero and Bisesero massacres. Mostert declared that the witnesses were ordinary citizens and did not receive consideration for their testimony. The witnesses, all of whom were familiar with Ntakirutimana, described seeing him at the massacre or leading the soldiers in search of Tutsis at Bisesero.14 The wit-
nesses’ statements corroborated one another, and many of the witnesses positively identified a photograph of Ntakirutimana. When the Magistrate Judge denied the first request for surrender, he found Mostert‘s affidavit alone insufficient to provide probable cause to support the charges.
In response to the Magistrate Judge‘s concerns, the Government added a supplemental declaration of Mostert with its second request for surrender.15 The second request also included the declaration of Pierre-Richard Prosper, the assistant prosecutor for the ICTR. Prosper further clarified the information in Mostert‘s initial declaration.16 The district court stated that the supplemental declarations satisfactorily responded to the Magistrate Judge‘s earlier objections. The district court concluded that probable cause existed to sustain the charges against Ntakirutimana.
Ntakirutimana argues that the district court erred. He contends that the Tribunal has not presented evidence sufficient to show probable cause, because the allegations in Mostert‘s declarations “lack probative force and are unreliable.”17 Ntakirutimana primarily raises credibility challenges to the evidence against him.18
Ntakirutimana asserts that the credibility of the witnesses was not known to the investigators or established by the Tribunal. According to Ntakirutimana, if the witnesses had ties to the Rwandan government, then the witnesses would have been under pressure to incriminate persons about whom they were questioned. The district court noted, however, that Ntakirutimana provided no specific reason to doubt the credibility of the witnesses. The court stated that the witnesses’ statements “enjoy several indicia of reliability,” such as the similarity of the witnesses’ statements. The court resolved the credibility challenge in the Government‘s favor. We defer to this conclusion regarding the credibility of the witnesses.19 See Escobedo, 623 F.2d at 1102 n. 10.
Ntakirutimana raises the issue of Mostert‘s credibility, because the signature page of Mostert‘s first declaration was typed with a different computer than the first twenty-four pages. Ntakirutimana asserts that Mostert could have signed the signature page, and that, after Mostert‘s employment ended, the page could have been attached to any text. Thus, Ntakirutimana argues, all of Mostert‘s declarations cannot be taken at face value. The district court rejected this credibility challenge, finding that Mostert‘s supplemental declaration, in which he avowed that the first declaration was accurate and complete, answered this allegation. As explained previously, we will not revisit this credibility finding. See Escobedo, 623 F.2d at 1102 n. 10.
Ntakirutimana also challenges the probable cause determination on the ground that the translators were unreliable. The investigators conducted most of their interviews through translators of English and French, the languages of the Tribunal. With the exception of one French-speaking witness, the witnesses spoke Kinyarwanda, Rwanda‘s native language. Ntakirutimana argues that the translators were not certified or screened for competence or bias, that there was an enormous potential for distortion by the unscreened interpreters, and that there was no way to gauge the accuracy of the translations. The district court declined to address Ntakirutimana‘s challenge to the reliability of the translations. The court stated that, as long as the evidence is authenticated in accordance with
In short, the district court resolved the credibility challenges adversely to Ntakirutimana, and we will not review those issues. We hold that, based on Mostert‘s and Prosper‘s declarations, there is competent evidence in the record to support the district court‘s finding that the evidence established probable cause to believe that Ntakirutimana committed the crimes charged.
V
Finally, we turn to Ntakirutimana‘s remaining arguments. Ntakirutimana argues that the U.N. Charter does not authorize the Security Council to establish the ICTR, and that the only method for the U.N. to create an international criminal tribunal is by a multinational treaty. This issue is beyond the scope of habeas review. See Garcia-Guillern, 450 F.2d at 1191 (outlining three issues for habeas review); cf. Terlinden, 184 U.S. at 289 (stating that it would be impossible for the Executive Department to conduct foreign relations if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its Constitution and laws, to make the engagements into which he entered). Ntakirutimana contends additionally that the ICTR is incapable of protecting his rights under the United States Constitution and international law. He contends, for example, that the ICTR is incapable of protecting his due process rights and that the ICTR denies the right to be represented by the counsel of one‘s choice. Due to the limited scope of habeas review, we will not inquire into the procedures that await Ntakirutimana. See Garcia-Guillern, 450 F.2d at 1192; Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.1960) (regarding as significant that the procedures that will occur in the demanding country are not listed within the scope of habeas review); see also In re Extradition of Manzi, 888 F.2d 204, 206 (1st Cir.1989) (explaining the rule of “non-inquiry“). “Such matters, so far as they may be pertinent, are left to the State Department, which ultimately will determine whether the appellant will be surrendered to the [ICTR].” Garcia-Guillern, 450 F.2d at 1192.
VI
For the foregoing reasons, we AFFIRM the order of the district court denying Ntakirutimana‘s petition for a writ of habeas corpus, and LIFT the stay of extradition.
ROBERT M. PARKER, Circuit Judge, writing separately, specially concurring.
Judge Garza has crafted for the panel a well-written opinion that faithfully adheres to controlling jurisprudence, and thereby has earned my concurrence. I write separately and briefly to invite the Secretary to closely scrutinize the underlying evidence as she makes her decision regarding whether Ntakirutimana should be surrendered to the International Criminal Tribunal for Rwanda. The evidence supporting the request is highly suspect. Affidavits of unnamed Tutsi witnesses acquired during interviews utilizing questionable interpreters in a political environment that has all
It defies logic, and thereby places in question the credibility of the underlying evidence, that a man who has served his church faithfully for many years, who has never been accused of any law infraction, who has for his long life been a man of peace, and who is married to a Tutsi would somehow suddenly become a man of violence and commit the atrocities for which he stands accused. I fully understand that the ultimate decision in this case may well be a political one that is driven by important considerations of State that transcend the question of guilt or innocence of any single individual. I respect the political process that necessarily is implicated in this case, just as I respect the fact that adherence to precedent compels my concurrence.
To the extent that it may be relevant to the Secretary‘s decision, I merely add, based on all the information in this record, viewed from the perspective of a judge who has served fifteen years on the trial bench and five years on the court of appeals, that I am persuaded that it is more likely than not that Ntakirutimana is actually innocent.
DeMOSS, Circuit Judge, dissenting.
Our Constitution is the result of a deliberate plan for the separation of powers, designed to prevent both the arrogation of authority and the potential for tyranny. Notwithstanding our nation‘s moral duty to assist the cause of international justice, our nation‘s actions taken in that regard must comport with the Constitution‘s procedures and with respect for its allocation of powers. That is why we claim to be a nation ruled by law rather than men.
The Attorney General‘s litigation position in this case has apparently been chosen for the purpose of validating a constitutional shortcut which would bypass the Treaty Clause. She stakes her case on the validity and enforceability of a warrant issued by the United Nations International Criminal Tribunal for Rwanda, which is a nonsovereign entity created by the United Nations Security Council, purporting to “DIRECT” the officials of our sovereign nation to surrender the accused. In defense of this, the Attorney General relies exclusively on what my colleagues have termed a “Congressional-Executive Agreement“—the coincidence of an “executive agreement” with the Tribunal, entered on behalf of the United States by an ambassador appointed by the President in the course of his duties to conduct foreign affairs, and a purported enabling act passed by simple majorities of both houses of Congress and signed into law by the President.
A structural reading of the Constitution compels the conclusion that most international agreements must be ratified according to the Treaty Clause of Article II. The history of national and international practice indicate that extradition agreements fall into this category. Our Founding Fathers intended that the President have authority to negotiate such agreements, but also that they be ratified pursuant to a special process intended to set a higher standard of legislative agreement than that required for ordinary legislation. The Constitution thus provides a plain procedure for entering into a treaty, which requires the assent of the President and two-thirds of the Senate. That procedure was not followed with respect to the executive agreement to extradite fugitives to the International Criminal Tribunal for Rwanda, and the procedure is not satisfied by the combination of an executive agreement and ordinary legislation. For this reason, I respectfully dissent from the majority‘s conclusion that the Constitution permits the extradition of Elizaphan Ntakirutimana based upon a foreign warrant invoking an executive agreement and its implementing statute.
I.
The Attorney General seeks to surrender Elizaphan Ntakirutimana to the Inter-
Accordingly, the Surrender Agreement provides that:
The United States agrees to surrender to the Tribunal, pursuant to the provisions of this Agreement and the Statute, persons, including United States citizens, found in its territory whom the Tribunal has charged with or found guilty of a violation or violations within the competence of the Tribunal as defined in the Statute.
Surrender Agreement, art. I, § 1, 1996 WL 165484, at *1.
The second authority is an act of Congress, the
[T]he provisions of chapter 209 of title 18, United States Code [
18 U.S.C. § 3181 et seq. ], relating to the extradition of persons to a foreign country pursuant to a treaty or convention for extradition between the United States and a foreign government, shall apply in the same manner and extent to the surrender of persons, including United States citizens, to ... (B) the International Tribunal for Rwanda, pursuant to the Agreement Between the United States and the International Tribunal for Rwanda.
Section 1342(a) has a curious history. First, the provision obviously bears no relation by subject matter to the general theme of the Act in which it was enacted, which was matters pertaining to the national defense. Predictably, then, no language bearing any relation to this provision can be found in the original bills proposed in the House of Representatives and Senate for the 104th Congress.3 The
first suggestion about a provision permitting extradition to the International Criminal Tribunals came in the form of a floor amendment offered by Senator Arlen Specter of Pennsylvania. The Specter Amendment, No. 2081, supplied the language which was ultimately enacted as § 1342 of the Act.4 Senator Specter indicated that this amendment contained legislation which was being sought by the President,5 and with this assurance (and without further discussion), the leadership of the Senate accepted the amendment.6 In conference, the House receded to the Specter Amendment “with a technical amendment.” H.R.Conf.Rep. No. 104-450 (1996), reprinted in 1996 U.S.C.C.A.N. 238, 391. Subsection (a)(1) of the Specter Amendment (ultimately
Although it relates to foreign relations and performs a function historically performed by treaties, the Specter Amendment (§ 1342) did not originate in the Senate Foreign Relations Committee,7 and no hearings or deliberations of any sort were ever held by that committee on the subject of extradition to the international criminal tribunals established by the United Nations Security Council. Likewise, although § 1342 relates to extradition procedures in United States courts, it was never considered by the Senate Judiciary Committee.8 Most curiously, the provision does not purport to be an amendment to the existing statutes on extradition and it was not codified. It appears in the United States Code Annotated only as a “statutory note“—a literal afterthought. If the ratification of an extradition agreement is a legislative function which our Founding Fathers intended to be performed under the Treaty Clause, the history of the passage of § 1342 stands in stark contrast to that heightened legislative standard. It was a
The third authority invoked by the Attorney General is a warrant issued by the United Nations International Criminal Tribunal for Rwanda, located in Arusha, Tanzania. The warrant reads, in pertinent part: “I, Judge William H. Sekule, Judge of the International Criminal Tribunal for Rwanda ... HEREBY DIRECT the Authorities of the United States of America to search for, arrest and surrender to the International Criminal Tribunal for Rwanda: Elizaphan Ntakirutimana ... [who is] currently believed to be in the United States of America.” Prosecutor v. Ntakirutimana, No. ICTR-96-17-I (U.N.I.C.T.R. Sept. 7, 1996) (warrant of arrest and order for surrender). The Tribunal is not a sovereign nation.
II.
The “Congressional-Executive Agreement” method of ratifying the Surrender Agreement with the Tribunal runs afoul of the Constitution‘s Treaty Clause, and § 1342 alone is constitutionally insufficient to ratify the Surrender Agreement which has been invoked to support the extradition.
A.
Article II, § 2 of the Constitution provides:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The Constitution‘s treaty procedure must be followed in order to ratify an extradition agreement which contractually binds our nation to respect obligations to another nation. The intent of the framers could not be clearer on this point. Our Founding Fathers were very concerned about the new nation becoming entangled in foreign alliances. The possibility of giving the President full authority for foreign affairs was considered and rejected. In The Federalist No. 75, Alexander Hamilton argued that it would be “utterly unsafe and improper” to completely entrust foreign affairs to a President, who is elected for only four years at a time. The Founders were especially concerned with the
Of course, not all agreements with foreign countries require the full Article II “treaty” treatment in order to be effective. The Constitution implicitly recognizes a hierarchy of arrangements with foreign countries, of which treaties are the most sacrosanct. Compare
But the fact of the matter is that while the Constitution has no provisions explicitly relating to extradition, it likewise has no provisions explicitly relating to executive agreements. It only mentions treaties. Our national government is one of limited, enumerated powers. See, e.g., United States v. Lopez, 514 U.S. 549, 551, 115 S.Ct. 1624, 1626, 131 L.Ed.2d 626 (1995) (quoting The Federalist No. 45 (James Madison)); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, 2 L.Ed. 60 (1803). All agree that the Surrender Agreement is not a treaty. We are therefore left to read between the lines to ascertain whether the President and Congress have wrongfully attempted by ordinary legislative procedures, to exercise a power governed by the Treaty Clause or whether some source of power other than the Treaty Clause enables the President and Congress to bind the country to the Surrender Agreement.
Our inquiry is significantly informed by a demonstration of what specific powers are encompassed by the Treaty Clause. “A treaty is in its nature a contract between two nations, not a legislative act.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L.Ed. 415 (1829); see also Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598-99, 5 S.Ct. 247, 254, 28 L.Ed. 798 (1884). Alexander Hamilton explained:
The power of making treaties ... relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.
The Federalist No. 75. It is precisely the position of the Attorney General that the Surrender Agreement is a valid contract with a foreign authority and that it has the force of law. In Alexander‘s day, an agreement with those characteristics was called a treaty.
If the Treaty Clause is to have any meaning there is some variety of agreements which must be accomplished through the formal Article II process. Otherwise, the heightened consideration dictated by Article II could be avoided by
Express power is given to the President, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur, and inasmuch as the power is given, in general terms, without any description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.
Holden v. Joy, 84 U.S. (17 Wall.) 211, 242-43, 21 L.Ed. 523 (1872) (emphasis supplied).
Plainly, an extradition agreement is a type of agreement historically found in a treaty and therefore governed by the Treaty Clause. Extradition, which is defined as “the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender,” Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 492, 46 L.Ed. 534 (1902), has usually been regarded as the proper subject of negotiation and treaty. Historically, the United States has not surrendered a person to a foreign authority (excluding countries or territories controlled by the United States) in the absence of a valid extradition treaty.9 Every extradition agreement ever entered into by the United States (before the advent of the new Tribunals) has been accomplished by treaty, including the Jay Treaty (1795) and the Webster Ashburton Treaty (1842). The original extradition statutes, enacted in 1848, required the existence of an extradition treaty, and there was no exception until § 1342 was passed to accommodate the Tribunals for Rwanda and the former Yugoslavia. Furthermore, “the principles of international law recognize no right to extradition apart from treaty.” Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933).
The insistence on the use of the treaty power for certain types of international agreements comports with the Founding Fathers’ intention that the President not have unfettered discretion to enter agreements with foreign nations. See The Federalist No. 75 (Alexander Hamilton). Unless the Article II procedure is insisted upon, the President can exercise such plenary power simply by denominating his agreements as something other than “treaties.” See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1273 & n. 179 (1995); cf. Freytag v. Commissioner, 501 U.S. 868, 880, 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991) (“Neither Congress nor the Executive can agree to waive this structural protection [of the Appointments Clause].... The structural interests protected by the Appointments Clause are not those of any one Branch of government but of the entire Republic.“); Weiss v. United States, 510 U.S. 163, 189, 114 S.Ct. 752, 766, 127 L.Ed.2d 1 (1994) (Souter, J., concurring) (same).
Notably, the United States has publicly declared to the entire world that it can only enter into an extradition agreement through a treaty. In its fifth reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, the United States proclaimed to the international diplomatic community that it “reserves the right to effect its participation in any such tribunal
B.
The Attorney General and my colleagues in the majority place great reliance on Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 57 S.Ct. 100, 81 L.Ed. 5 (1936), in which the Court stated: “It cannot be doubted that the power to provide for extradition is a national power; it pertains to the national government and not to the states. But, albeit a national power, it is not confided to the Executive in the absence of treaty or legislative provision.” Id. at 8 (internal citation omitted). Valentine was a case that did involve a treaty—its stray reference to “legislative provision” is pure dicta, and certainly not a plain holding that extradition may be accomplished by the President simply on the basis of congressional approval. Likewise, in Terlinden v. Ames, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534 (1902), in which the Court noted that “[i]n the United States, the general opinion and practice have been that extradition should be declined in the absence of a conventional or legislative provision,” id. at 289, there was also a valid extradition treaty, and the reference to a “legislative provision” is again dicta.
The Attorney General insists that the President has the power to unilaterally enter an extradition agreement with foreign nations, the only distinction between that variety of agreement and an Article II treaty being that only a treaty will impose upon the President a duty to extradite. In defense of this principle, the Attorney General points to Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), which states:
While a government may, if agreeable to its own constitution and laws, voluntarily exercise the power to surrender a fugitive from justice to the country from which he had fled, and it has been said that it is under a moral duty to do so, the legal right to demand his extradition
and the correlative duty to surrender him to the demanding country exist only when created by treaty.
Id. at 286 (internal citation omitted); see also United States v. Rauscher, 119 U.S. 407, 411-12, 7 S.Ct. 234, 30 L.Ed. 425 (1886).
But these cases do not support the Attorney General‘s position. The quoted passage stands for the unremarkable propositions that a sovereign nation can (and perhaps should), if consistent with its own laws, surrender to another sovereign nation one of the surrendering nation‘s own citizens who is accused of crimes by that other sovereign nation, but that no such duty or legal obligation arises absent a treaty. Those propositions do not mean that the President, acting unilaterally, can enter non-binding executive agreements to extradite,12 or that Congress may ratify such an agreement. The Attorney General does not purport to act pursuant to some sort of sovereign power to surrender Ntakirutimana; she has consciously premised her argument on the validity and enforceability of the Surrender Agreement. This is plain from the briefs filed in this Court.13 Given that the Surrender Agreement is the authority invoked by the Attorney General, it is the authority which we must consider.
III.
The executive and legislative branches of government erroneously disregarded their obligation to respect the structure provided by the Constitution when they purported to enter this extradition agreement.14 We should issue a writ of habeas corpus, and Ntakirutimana should not be surrendered. The extradition agreement in place between the United States and the Tribunal is unenforceable, as it has not been properly ratified. The agreement‘s implementing legislation is unconstitutional insofar as it purports to ratify the Surrender Agreement by a means other than that prescribed by the Treaty Clause. The two acts seek impermissibly to evade the mandatory constitutional route for implementing such an agreement.15 I therefore respectfully dissent.16
Lewis Anderson, Plaintiff-Appellee, v. Pasadena Independent School District, Nelda Sullivan, Vickie Morgan, Ted Sullivan, Carmen Orozco, Bob Blair, Marshall Kendrick, Jr., Fred Roberts and Fredrick Schneider, Defendants-Appellants.
Nos. 97-20980, 98-20384.
United States Court of Appeals, Fifth Circuit.
Aug. 5, 1999.