LCHR | In the Matter of the Surrender of Elizaphan Ntakirutima

BRIEF OF THE LAWYERS COMMITTEE FOR HUMAN RIGHTS ASAMICUS CURIAE

In the Matter of the Surrender of Elizaphan Ntakirutima

United States District Court
Southern District of Texas Laredo Division

Argument

II. There Is No Constitutional Obstacle to the Surrender of Ntakirutimana

Section 1342(a)(1) of Public Law No. 104-106 provides a proper and lawful basis for the United States to request the surrender of the respondent to the Rwanda Tribunal and for the Court to certify the permissibility of his surrender to the Secretary of State. Indeed, absent the alleged constitutional defect identified by the Magistrate Judge, there would be no question that the Court is required to consider the United States' surrender request on its merits.

In his decision, however, the Magistrate Judge held that Section 1342(a) of Public Law 104-106 was unconstitutional, and therefore that there was no valid statute which gave the court jurisdiction to consider the Government's request to surrender Ntakirutimana. Ntakirutimana, 988 F. Supp. at 1042. The Magistrate Judge struck down the statute as unconstitutional because it purported to authorize the surrender of persons pursuant to an executive agreement — the Surrender Agreement — rather than pursuant to a treaty that had been ratified by two-thirds of the Senate pursuant to Article II, Section 2 of the Constitution. Id. In reaching this conclusion, the Magistrate Judge observed, incorrectly, that "[t]hroughout the history of this Republic, every extradition from the United States has been accomplished under the terms of a valid treaty of extradition." Id. Solely on the basis of this asserted historical practice — and despite the absence of any constitutional provision regulating international extradition or requiring a treaty before international extradition could be authorized — the Magistrate Judge held that "Congress has no independent authority to regulate extradition and . . . a treaty of extradition is required before extradition can occur." Id.

The Magistrate Judge's conclusion that Section 1342(a) is unconstitutional is incorrect for two fundamental reasons. First, the Constitution does not require the existence of an Article II treaty as a prerequisite before Congress can authorize extradition by statute. Rather, the decisions of the Supreme Court and other federal courts make clear that Congress can properly authorize extradition by statute in the absence of an Article II treaty. Second, even if extradition could be effected only pursuant to a treaty ratified by the Senate, Section 1342 was in fact passed to implement United States' treaty obligations arising under the United Nations Charter, and thus provides a valid jurisdictional basis for the United States' request for Ntakirutimana's surrender.

A. The United States Constitution Does Not Require A Treaty As A Predicate For Extradition

The Magistrate Judge's holding that the existence of an Article II treaty is a constitutional prerequisite to the extradition of a fugitive is incorrect. The Magistrate Judge's ruling contradicts controlling Supreme Court precedent and the only prior decisions to consider this issue, most of which the Magistrate Judge did not even consider in his opinion. Rather than exercising appropriate caution before striking down an act of Congress, the Magistrate Judge's decision holds Section 1342 unconstitutional without identifying any basis in the Constitution to justify the sharp departure from this body of precedent. Instead, the Magistrate Judge's opinion relies upon assumptions about the history of American extradition practice that are incorrect and would not, in any event, support the conclusion that the law is unconstitutional.

Controlling precedent compels the conclusion that Section 1342 of Public Law 104-106 is constitutional and provides a lawful basis for the United States' request for the surrender of Ntakirutimana. First, the United States Supreme Court has expressly held that a federal statute provides a constitutionally sufficient basis to extradite an international fugitive. In Valentine v. United States ex rel. Neidecker, 299 U.S. 5 (1936), which the Magistrate Judge did not address in his decision, the Supreme Court held as a matter of domestic United States law that the Constitution requires some legislative authorization, either by treaty or statute, before the Executive Branch can exercise the power to extradite. This requirement derives not from any concern regarding the treaty-making provisions of the Constitution or its allocation of powers between the Executive and Congress in the field of foreign affairs, but from the due process rights of the individual whose extradition is sought. As the Supreme Court explained in Valentine, "the Constitution creates no executive prerogative to dispose of the liberty of the individual. . . . There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law." 299 U.S. at 9.

Valentine makes abundantly clear, however, that there is nothing in the Constitution that requires that authorization to the Executive to extradite must be derived from a treaty rather than from an act of Congress. On the contrary, the Court repeatedly held that the power of extradition may be conferred upon the Executive either by treaty or by statute. Thus, the Court explained that "the legal authority [to extradite] does not exist save as it is given by act of Congress or by the terms of a treaty." Id. Similarly, the Court quoted a leading treatise on extradition for the proposition that there was no authority to extradite "in the absence of a conventional or legislative provision." Id. (quoting J.B. Moore, I Treatise on Extradition and International Rendition §16 (1891)). Indeed, the problem in Valentine precluding extradition was that Congress had failed to enact a statute authorizing extradition except pursuant to a treaty. The treaty at issue in Valentine did not require the extradition of United States citizens, and the Court thus held that extradition could not be ordered "in the absence of statute conferring an independent power." 299 U.S. at 18.

Second, the Valentine Court's recognition that Congress could properly authorize extradition in the absence of any treaty obligation is consistent with other, long- settled Supreme Court authority. In Grin v. Shine, 187 U.S. 181, 191 (1902), for example, the Supreme Court held that "Congress has a perfect right to provide for the extradition of criminals in its own way, with or without a treaty to that effect, and to declare that foreign criminals shall be surrendered upon such proofs of criminality as it may judge sufficient."² See also Terlinden v. Ames, 184 U.S. 270, 289 (1901) ("[i]n the United States, the general opinion and practice has been that extradition should be declined in the absence of a conventional or legislative provision") (citing J.B. Moore, I Treatise on Extradition and International Rendition §16 (1891)).

Finally, subsequent cases have applied the holdings of Valentine and similar cases to reject precisely the arguments adopted by the Magistrate Judge and confirm that a federal statute — standing alone — provides sufficient authority to extradite a fugitive in the absence of any treaty. In Hilario v. United States, 854 F. Supp. 165, 173-74 (E.D.N.Y. 1994), a decision squarely on point, Portugal sought the extradition of an American citizen convicted of murder in Portugal. Although the United States and Portugal were parties to an extradition treaty, that treaty expressly provided that the United States had no obligation to extradite American citizens. As a result, the sole basis for the United States' request to extradite the respondent was 18 U.S.C. § 3196, a statute enacted in 1990 to fill the gap in United States extradition law left by the Supreme Court's decision in Valentine. Id. at 169. Section 3196 authorizes the extradition of United States citizens in certain circumstances as a matter of comity even though "the applicable treaty or convention does not obligate the United States to extradite its citizens to a foreign country." 18 U.S.C. § 3196; see Hilario, 854 F. Supp. at 166-67.

Hilario challenged the constitutionality of Section 3196 on the same grounds that Ntakirutimana challenges the constitutionality of Section 1342 here. Specifically, Hilario argued that "extradition from the United States is generally conducted only pursuant to treaty," that therefore "any power to extradite must be conferred in accordance with the treaty making provisions of art. II, § 2, cl. 2 of the Constitution," and that Section 3196 was unconstitutional because it did not implement the provisions of any treaty. See 854 F. Supp. at 173.

The Hilario court flatly rejected these arguments. Initially, the court noted, the "fundamental problem" with Hilario's argument was that "there is no authority to support it." Id. On the contrary, following the Supreme Court's decision in Valentine, the court held that the power to extradite could constitutionally be conferred either "by legislation or by treaty amendment." Id. (emphasis in original). The rationale for the Valentine rule, the court held, was straightforward:

It is not, after all, any treaty that demands conferral of power before the executive branch surrenders an American national. It is our own constitutional system. In Valentine, the Supreme Court expressly stated that, under that system, the power to extradite can be conferred either by legislation or by treaty amendment. . . . Both statutes and treaties are the supreme law of the land. Neither is superior to the other. Thus, either can serve the Constitution's requirement for the specific legal conferral of the power to extradite.

Id. (citations omitted).

The Hilario court also dismissed the petitioner's argument that the constitutional requirement for a treaty could be implied from the United States' past practice of generally effecting extradition only pursuant to a treaty. As the court explained, "[t]he reason the United States grants foreign extradition requests only pursuant to treaty is that Congress has so provided by statute." 854 F. Supp. at 173 (emphasis in original). Where Congress has properly granted the Executive Branch the authority to extradite a fugitive on the basis of a statute, as it had in Hilario through the passage of 18 U.S.C. § 3196, the court held that the Constitution did not require the existence of an Article II treaty as a prerequisite to extradition, and therefore upheld the order certifying his extraditability. Id. at 176.³

The Court of Appeals in Williams v. Rogers, 449 F.2d 513, 521 (8th Cir. 1971), cert. denied, 405 U.S. 926 (1972), adopted like reasoning to permit the surrender of a member of the U.S. Air Force to a foreign country pursuant to the terms of an executive agreement. In Williams, the Air Force sought to transfer an airman to the Phillippines where, pursuant to an executive agreement between the two countries, he was to be turned over to Philippine authorities to face trial for a kidnaping and attempted rape allegedly committed in that country. The airman sought to enjoin the transfer in federal court, arguing that it constituted a constructive extradition that was unlawful because no treaty of extradition existed between the United States and the Phillippines.

The Court of Appeals upheld denial of the injunction. Even if construed as an extradition, the Court held, the Air Force's actions were fully authorized by the executive agreement with the Phillippines. Id. Although the executive agreement was not itself a statute, the Court noted that the entry of the agreement had been authorized by a joint resolution of Congress. Id. Under Valentine, such congressional action, together with the executive agreement, provided the Air Force with sufficient authority to surrender the airman to the Phillippines for trial even in the absence of a treaty providing for extradition. Id.

These precedents demonstrate at least five errors in the Magistrate Judge's conclusion that Section 1342 is unconstitutional. First, the Magistrate Judge's decision offers no basis in the Constitution — indeed no authority at all — to support its conclusion that only a treaty and not a federal statute may constitutionally empower the Executive Branch to extradite a fugitive. In fact, there is nothing in the Constitution that provides support for such a ruling. The Constitution does not even mention international extradition, let alone provide that the Executive Branch's power to extradite fugitives must be derived from an Article II treaty. See, e.g., U.S. Const., arts. I-IV; M. Cherif Bassiouni, International Extradition: United States Law and Practice at 34-35 (3d ed. 1996) ("there is nothing in the Constitution that mandates" the existence of a treaty "in order for extradition to be granted"). The only provision of the Constitution cited by the Magistrate Judge, art. II, cl. 2, is simply an affirmative grant of power to the President to make treaties with the advice and consent of the Senate. It does not prohibit the President from employing other means, including executive agreements, to carry out the foreign policy objectives of the United States, see, e.g., Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982) ("the President may enter into certain binding agreements with foreign nations without complying with the formalities required by the Treaty Clause of the Constitution"), and it imposes no restriction on Congress' power to enact legislation.

Second, there is no basis in international law to conclude that there must be a binding treaty providing for extradition before the United States may extradite a fugitive. While it is true under international law that only a treaty may create a duty to extradite a fugitive, the Supreme Court has made it plain that a nation's power to order extradition exists and may be exercised, as a matter of comity, even where no treaty exists. See United States v. Rauscher, 119 U.S. 407, 412 (1886) (in the absence of treaty, "there [is] no well-defined obligation on one country to deliver up . . . fugitives to another, and though such delivery was often made, it was upon the principle of comity, and within the discretion of the government whose action was invoked"); Factor v. Laubenheimer, 290 U.S. 276, 287 (1933) ("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 has fled . . . the legal right to demand his extradition and the correlative duty to surrender him to the demanding country exist only when created by treaty").⁴The contrary conclusion reached by the Magistrate Judge would effectively condition the United States' ability to extradite international fugitives found within its borders upon the existence of a formal extradition agreement with a foreign power. There is simply no basis in law or common sense to support such a restriction on the legislative authority of the United States to regulate this aspect of the nation's sovereignty. Restatement (Third) of the Foreign Relations Law of the United States § 402(1)(b) (1987) (" . . . a state has jurisdiction to prescribe law with respect to . . . the status of persons, or interests in things, present within its territory.").

Third, as a matter of domestic United States law, there is no basis to hold that a treaty has an ability to confer authority upon the executive that is superior to that of a federal statute. As Hilario aptly noted, treaties and federal statutes are equivalent for purposes of conferring powers upon the Executive Branch: both are considered the supreme law of the land and both are entitled to equal dignity. See Hilario, 854 F. Supp. at 173; U.S. Const., art. VI, § 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land."); Whitney v. Robertson, 124 U.S. 190, 194 (1888) ("By the constitution a treaty is placed upon the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land and no superior efficacy is given to either over the other").⁵

Fourth, the factual basis upon which the Magistrate Judge rested his decision — the United States' purportedly uniform practice of extraditing fugitives only pursuant to treaty — is inaccurate and does not support the conclusion he reached. As Hilario and Williams demonstrate, the United States has not relied exclusively upon treaties when seeking to extradite fugitives, but has also relied upon federal statutes and executive agreements. See Hilario, 854 F. Supp. at 174 (statute); Williams, 449 F.2d at 521 (executive agreement). Moreover, even if the historical practice has generally been that extraditions have been based on treaties, that fact does not support the Magistrate Judge's conclusion that the practice is constitutionally required. As Hilario notes, the United States generally extradited fugitives pursuant to treaty provisions in the past because the federal statutes authorizing extradition required that extradition be effected pursuant to a treaty, not because the Constitution does. See Hilario, 854 F. Supp. at 173; 18 U.S.C. §§ 3181(a), 3184. Far from reflecting any constitutional limitation on the authority of federal statutes to provide for extradition, United States historical extradition practice confirms, if anything, that such statutes are fully capable of establishing the requirements of extradition.

Finally, the Magistrate Judge's conclusion that a treaty ratified by the Senate is required before a statute can permissibly authorize extradition is inconsistent with the recognition that the Supreme Court has given to the validity of executive agreements. It is well settled that the Executive Branch has authority to enter into binding international agreements which may have substantial impact on private rights, even though such executive agreements have not been submitted to the Senate for formal ratification. See United States v. Belmont, 301 U.S. 324, 329-31 (1937) (discussing presidential authority to enter into binding executive agreements); United States v. Pink, 315 U.S. 203, 229 (1942) (same). Here, the Surrender Agreement is an executive agreement lawfully entered into by the President in the exercise of his foreign affairs powers, and it was subsequently expressly approved by both houses of Congress through the passage of implementing legislation, Public Law 104-106. Where, as here, Congress has ratified or authorized an executive agreement through legislation or joint resolution, the agreement becomes functionally indistinguishable from an Article II treaty. See Cotzhausen v. Nazro, 107 U.S. 215 (1883) (conventions entered into by postal service pursuant to federal authorizing statute have same status as treaties); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (executive agreement entered into pursuant to federal authorizing statute constitutes a "treaty" sufficient to provide the Supreme Court with jurisdiction); see Gov't Mem. at 17-18 (citing cases). Accordingly, as the Williams Court held, congressional action implementing an executive agreement provides authority for extradition to the same extent as a statute implementing a treaty. Williams, 449 F.2d at 521.

The error of the Magistrate Judge's conclusion is also demonstrated by the consequences of his holding. In effect, the Magistrate Judge held that the Congress of the United States cannot authorize the extradition of a foreign national accused of the most fundamental crimes known to the international community unless it has previously gained the consent of a foreign jurisdiction or international entity to the terms of an extradition treaty. That holding represents an unprecedented limitation on the sovereignty of the United States and the ability of its political branches to carry out foreign policy. Moreover, the reasoning that underlies that holding cannot be limited to requests for the surrender of fugitives sought by international criminal tribunals under Section 1342. If the Magistrate Judge's decision were correct, the constitutionality of at least two other federal statutes would be called seriously into question. First, as noted above, the Magistrate Judge's reasoning would apply equally to the statute at issue in Hilario, 18 U.S.C. § 3196. Second, in 1996 Congress enacted 18 U.S.C. § 3181(b), which authorizes the United States to surrender, "in the exercise of comity," fugitives other than United States citizens or residents who have committed crimes of violence against United States nationals in foreign countries "without regard to the existence of any treaty of extradition." Id. This provision was enacted as part of the Antiterrorism Act of 1996, Pub. L. No. 104-132, Tit. IV, § 443(a), 110 Stat. 1280, and was expressly intended "to permit[ ] the Attorney General to extradite persons . . . [accused of such violent crimes against United States citizens] to countries with which the United States does not have an extradition treaty." House Conference Rep. No. 104-518, 104th Cong., 2d Sess. 119 (1996), reprinted in 1996 U.S. Code Cong. & Ad. News, at 952. Neither 18 U.S.C. § 3196 nor 18 U.S.C. § 3181(b) could survive the Magistrate Judge's holding.⁶

In sum, the Magistrate Judge's holding finds no support in the Constitution; it is squarely contradicted by controlling precedent; and it would condition the authority of the political branches to formulate extradition policy for the United States on their ability to negotiate treaties with foreign nations and international bodies. The Lawyers Committee respectfully suggests that the Magistrate Judge's holding that Congress cannot enact a statute to implement the foreign policy of the United States by authorizing the extradition of a foreign national wanted by an international tribunal for the crime of genocide in his homeland simply cannot stand.

B. Public Law 104-106 Plainly Satisfies Any Constitutional Requirement That The Statute Must Implement A Treaty

Even if there were a requirement that extradition legislation, to be valid, must implement an Article II treaty, the Magistrate Judge's decision would still be incorrect.

The United Nations Charter is an Article II treaty ratified with the advice and consent of the Senate. See 59 Stat. 1031 (1945). The Charter requires the United States to "accept and carry out" the decisions of the United Nations Security Council. U.N. Charter, arts. 25, 48(1).

As set forth above, Security Council Resolution 955 requires member states — including the United States — to "cooperate with the International Tribunal for Rwanda" by, among other things, surrendering accused war criminals. See pp. 5-7, above. Both the Surrender Agreement and Section 1342 of Public Law No. 104-106, which incorporates the Surrender Agreement by reference, expressly seek to comply with the United States' obligations under Security Council Resolution 955 and therefore under the United Nations Charter. As such, Public Law 104-106 is plainly a constitutional exercise of congressional power under Article I, Section 8 of the Constitution, which authorizes Congress "to enact such legislation as is appropriate to give efficacy to any stipulations . . . in a treaty with a foreign power." Neely v. Henckel, 180 U.S. 109, 121 (1901).

The Supreme Court's decision in Neely makes clear that such congressional action authorizing extradition in order to implement a treaty is valid, even where the treaty does not expressly provide for extradition, and even where the statute purports to authorize extradition to a third country that was not a party to the treaty the statute is seeking to implement. In Neely, the Supreme Court upheld the constitutionality of a federal statute providing for the extradition of fugitives to Cuba, while that country was occupied by American military forces following the Spanish-American War, even though the Court held that Cuba was a "foreign territory" with which the United States had no treaty of extradition. 180 U.S. at 119-22. At the conclusion of the war, the United States and Spain had entered into a treaty which obligated the United States, among other things, to "protect life and property in Cuba pending its control and occupancy of that island." Id. at 121-22. The Court held that the subsequent passage of the extradition statute was an appropriate congressional action to "protect life and property in Cuba," and thus to implement the treaty with Spain, and was therefore fully consistent with article I, section 8 of the Constitution. Id. at 122.

Like the statute in Neely, Section 1342 of Public Law No. 104-106 implements the United States' obligations arising under a treaty, the United Nations Charter, and is therefore a constitutionally proper basis for seeking Ntakirutimana's surrender.

Footnotes:

² The Magistrate Judge found that Grin v. Shine was "inapposite at best," and noted that there was a treaty between Russia and the United States in that case. Ntakirutimana, 988 F. Supp. at 1041. The Magistrate Judge's ruling missed the essential point. While there was a treaty in that case, Grin argued that extradition could not be ordered under the treaty because the proof offered in support of extradition did not satisfy the requirements of the treaty. Thus, the Supreme Court's holding was that Congress by statute could authorize extradition that was not authorized by the treaty.

³ Neither the memoranda filed by the United States nor the decision of the Magistrate Judge cited Hilario, although it is plainly the single decision most directly relevant to the issues raised in this case. Moreover, apparently unaware of Hilario, the United States mistakenly acknowledges in its Memorandum that "[t]he United States has not extradited without a treaty because . . . until 1996, when these statutes were enacted, our laws -- not the Constitution -- have required the existence of a treaty." Gov't Mem. at 15. Although the Lawyers Committee agrees that it is only United States laws, and not the Constitution, which have generally made a treaty a requirement for extradition in the past, Section 3196, at issue in Hilario, was enacted in 1990 and authorized extradition even in the absence of a treaty.

⁴See also Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir.) (treaty creates right of foreign power to demand extradition and correlative duty of United States to surrender), cert. denied, 479 U.S. 882 (1986); Ramos v. Diaz, 179 F. Supp. 459, 460-61 (S.D. Fla. 1959) (same).

⁵See also Head Money Cases, 112 U.S. 580, 599 (1884) ("The constitution gives [a treaty] no superiority over an act of Congress. . . . Nor is there anything in its essential character, or in the branches of government by which the treaty is made, which gives it . . . superior sanctity"); Egle v. Egle, 715 F.2d 999, 1013 (5th Cir. 1983) ("[u]nder our Constitution, treaties and statutes are equal in dignity"), cert. denied, 469 U.S. 1032 (1984).

⁶In his decision, the Magistrate Judge dismissed the significance of Section 3181(b) here, asserting that "every case construing this section has required that a valid treaty exist[]." Ntakirutimana, 988 F. Supp. at 1041. The Magistrate Judge was clearly mistaken. None of the cases cited in the Magistrate Judge's decision mentions Section 3181(b) or involves violent crimes subject to its terms. In addition, Section 3181(b) was not passed until 1996, and the Magistrate Judge's citation to a 1954 case is obviously in error. In fact, the only case to date that has mentioned Section 3181(b), other than the Magistrate Judge's opinion itself, acknowledges that the statute provides an exception to the general practice of extradition by treaty. United States v. Kim Hong, 110 F.3d 103, 130 n.9 (1st Cir. 1997) (dissenting opinion).