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August 31, 1995

WARREN M. CHRISTOPHER, et al., Defendants.

The opinion of the court was delivered by: ROYCE C. LAMBERTH

 I. Background

 Plaintiffs Anthony Lobue and Thomas Kulekowskis have been charged by the Canadian government with kidnapping. The charges arise out of plaintiffs' efforts to assist one Anthony De Silva in his attempt to retrieve his physically and mentally disabled wife, Tammy, from her parents' home in Winnipeg, Canada. The attempt ultimately failed, but during the process, Tammy's parents had reported to Canadian authorities that she had been kidnapped by a group of people including the plaintiffs. Canadian police investigated the incident and, with Tammy's apparent support, filed kidnapping charges against the participants.

 Pursuant to the extradition treaty between the United States and Canada, the Canadian government requested surrender of the plaintiffs for prosecution on the kidnapping charge. The Secretary of State forwarded this request to the appropriate United States Attorney, and a complaint for extradition was filed in the United States District Court for the Northern District of Illinois on February 18, 1994. On May 27, 1994, Magistrate Judge Edward A. Bobrick held a hearing on the extradition request; on March 28, 1995, Magistrate Judge Bobrick issued an Order and Certification of Extraditability as to plaintiffs Lobue and Kulekowskis.

 Plaintiffs requested a stay of surrender date pending the filing of a habeas corpus petition. This request was granted, and Magistrate Judge Bobrick issued an Order staying plaintiffs' date of surrender until May 25, 1995. Despite the existence of this Order, on May 2, 1995, Deputy Secretary of State Strobe Talbott signed surrender warrants authorizing plaintiffs' extradition to Canada. These warrants were not executed, however, "in light of the stay order." Gov't Mem. in Supp. M. Dis. at 3.

 Plaintiffs filed their habeas petition in the Northern District of Illinois on May 24, 1995. A briefing schedule has been set in that case which enables the plaintiffs to obtain a ruling from this court before proceeding further with their habeas action in Illinois. The government has agreed to take no further steps towards extraditing the plaintiffs to Canada until September 1, 1995, or until this court has issued its ruling in the present case, whichever date is earlier. Now before the court are the parties' cross-motions for summary judgment and plaintiffs' class-certification motion.

 II. Analysis

 A. The Extradition Statute

 Extradition procedure in the United States is governed by 18 U.S.C. §§ 3181-3195. Section 3184 sets forth the procedure for extraditing an individual from the United States to a foreign country where he has been charged with committing a crime. *fn1" Under this scheme, a federal extradition judge *fn2" conducts a hearing, receives evidence, and issues a legal ruling concerning the extraditability of the accused. In order to certify an individual as extraditable, the judge must find that (1) the offense charged is extraditable under the applicable treaty; (2) the offense satisfies the so-called "dual criminality" requirement (i.e., the conduct alleged is unlawful both in the requesting country and in the United States); and (3) there is probable cause to believe that the accused committed the crime for which he is sought. E.g., Spatola v. United States, 741 F. Supp. 362, 363 (E.D.N.Y. 1990); aff'd 925 F.2d 615 (2nd Cir. 1991). If the extradition judge finds that any of these requirements has not been met, he does not certify the accused as extraditable, and the individual is released. If, on the other hand, the judge concludes that each of these criteria has been met, he or she certifies this finding to the Secretary of State, "that a warrant may issue." 18 U.S.C. § 3184 (emphasis supplied).

 Once a federal extradition judge has certified an individual as extraditable, § 3184 commit to the Secretary of State's sole discretion the decision whether to complete the extradition process by signing a warrant of surrender. There is no question that, assuming the legal requirements have been met, the ultimate decision whether to surrender an individual to the government of a foreign country for criminal prosecution rests with the Executive branch. The question presented by this case is whether a statute may confer upon the Secretary of State the authority to review the legal determinations of federal extradition judges. Upon consideration of the relevant authorities, the court finds that, while the statute certainly purports to grant the Secretary this power, it is a power which the Constitution forbids him from exercising.

 B. The Nature of the Secretary's Review

 The first question is whether the extradition statute confers upon the Secretary of State the authority to review the legal conclusions of extradition judges. Notwithstanding the government's protestations to the contrary, this is an easy question. The text of the statute, the consistent manner in which it has been interpreted by all three branches of government, and historical practice confirm that the answer is clearly yes -- the statute does purport to give the Secretary of State the authority to review the legal findings of extradition judges.

 First, the statute states that, if the extradition judge "deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all testimony taken before him, to the Secretary of State... ." 18 U.S.C. § 3184 (emphasis supplied). There is simply no plausible explanation for why Congress would require the extradition judge to certify the evidence "together with a copy of all the testimony taken before him," other than to permit the Secretary to perform his own independent review of the legality of the extradition.

 It is quite clear that, when they have specifically considered the issue, all three branches of government have consistently taken the position that the Secretary's review of extradition proceedings extends to the legal conclusions of the extradition judge. See e.g., S. Rep. No. 82, 47th Cong., 1st Sess. 3 (1882) ("The judiciary can neither order the delivery [of the requested person] nor bind the action of the President.... [The Executive has] the power of reviewing all the proceedings and passing judgment upon their correctness. If the President deem these judicial proceedings illegal or defective in any respect he may decline to deliver the prisoner") (emphasis supplied); 3 Dep't State Legal Advisor Op. 2356, 2367 (1931) ("The Secretary of State in determining whether he should authorize the surrender [of the requested person] is not bound by the finding of the...courts. He may review the evidence and reach an entirely different conclusion"); Ornelas v. Ruiz, 161 U.S. 502, 508, 40 L. Ed. 787, 16 S. Ct. 689 (1896) (noting that the extradition judge "is to certify his findings on the testimony to the Secretary of State that the case may be reviewed by the Executive Department of the government"); see also In re Heilbronn, 11 F. Cas. 1025, 1031 (S.D.N.Y. 1854) (No. 6,323) (observing that "no one can revise the opinion of the [extradition judge] but the President. The President has that power") (emphasis supplied).

 Finally, the available historical evidence clearly demonstrates that Secretaries of State have, in the past, reviewed and set aside the legal conclusions of extradition judges. Perhaps the clearest example of this practice occurred in the case of In re Stupp, 11 Blatchf. 124, 23 F. Cas. 281 (C.C.S.D.N.Y. 1873) (No. 13,562) ("Stupp I"). The issue presented to the extradition judge in Stupp I was whether the accused, Joseph Stupp, was properly extraditable to Prussia in light of the fact that the conduct with which he was charged occurred in Belgium, while the United States-Prussia extradition treaty permitted extradition only for crimes committed within the jurisdiction of the requesting country. Id. at 284. Following a lengthy and detailed analysis of the question, Judge Blatchford concluded that Stupp was extraditable under the terms of the treaty. See id. at 293. Judge Blatchford certified this conclusion to the Secretary of State, who then sought an opinion from the Attorney General as to the legality of the requested extradition. Contrary to Judge Blatchford's determination, the Attorney General found that the conduct with which Stupp was charged had not taken place within the "jurisdiction" of Prussia, and that Stupp was therefore not legally extraditable. See id. at 295. On the basis of the Attorney General's conclusion, the Secretary of State refused to issue a warrant of surrender. *fn4"

 In the face of this overwhelming evidence that the Secretary of State does in fact subject the legal determinations of extradition judges to Executive branch review, the position taken by the government in its briefing has been strained, at best. The government contends that "the Secretary of State does not revise' the judicial finding that extradition is lawful and he does not sit as a court of error' to reconsider and correct the extradition judge's conclusions." Gov't Reply at 8. The government further maintains that the extradition judge's determination "is not an advisory' decision, it is a final judicial resolution of the matter that the statute assigns specifically to the judicial officer. The judge's decision is conclusive and binding on that issue: i.e., whether the requested extradition is lawful." Id. at 12 (emphasis in original). How the government can possibly reconcile these statements with the evidence set forth above is unclear. Nor is it clear how the government would distinguish cases such as In re Stupp -- it makes no effort whatever to do so in its papers, and at oral argument, counsel's explanation was essentially to say, "Well, those are old cases." *fn6"

 Whether the Secretary of State has recently subjected the legal determinations of the Judiciary to Executive branch review, however, is not the question. The question is whether the statute itself purports to confer upon the Secretary the discretion to do so. The evidence set forth above -- including the test, analysis, and historical application of the statute -- clearly demonstrates that the extradition statute does purport to confer upon the Secretary of State the authority to review the legal determinations of extradition judges. It is equally clear that the Executive branch has, in the past, declined to surrender accused persons for the specific reason that the requested extradition was not legal ...

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