now seeks to have them extradited from the United States to Canada to stand trial. Plaintiffs contend that the extradition statute purports to confer upon the Secretary of State the power to review and set aside the legal conclusions of federal extradition judges and is therefore unconstitutional. Upon careful consideration of the text of the statute, the filings and arguments of counsel, and of the relevant authorities, the court must agree. Accordingly, plaintiffs' cross-motion for summary judgment will be granted, and the United States will be enjoined from taking any further act towards executing the surrender warrants signed by Deputy Secretary of State Strobe Talbott on May 2, 1995.
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.
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.
Under this scheme, a federal extradition judge
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.
In fact, this is precisely the conclusion reached by the Solicitor General in a legal memorandum prepared at the request of the Secretary of State. As summarized by the Solicitor General, the Secretary's question was "how far executive discretion extends in reviewing the judgment and testimony directed by the statute...to be certified before [the Secretary] by the judicial officer who hears the charge in the first instance." 17 U.S. Op. Att'y Gen. 184, 185 (1881). In analyzing the extradition statute, the Solicitor General observed that "it is difficult to see why the judicial officer should certify the testimony before him as well as his judgment thereon, unless for the purpose of affording an opportunity for a reconsideration of the effect of that testimony." Id. at 185-86. The Solicitor General's interpretation of the statute was forthright and unambiguous: "I am of the opinion that the proceedings below come before you upon a quasi certiorari, and that your discretion extends to a review of every question therein presented." Id. at 185 (emphasis supplied).
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.
Apparently, it is unusual for the Secretary to refuse an extradition request once a judge or magistrate has certified a requested person as extraditable. Moreover, the Secretary of State is obviously never obligated to state his reason for denying extradition. It is therefore not always clear what the true basis for the Secretary's decision not to extradite a given individual really was. Nevertheless, the historical data assembled by various commentators demonstrates that when past Secretaries of State have offered reasons for denying extradition of an individual who has been certified by the Judiciary as extraditable, they have frequently cited concerns regarding the legality of the extradition.
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."
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 and that the extradition judge's contrary conclusion was erroneous. The only remaining question then, is whether this Executive branch review renders the statute unconstitutional.
C. Executive Branch Review of an Extradition Judge's Legal Determinations Is Unconstitutional
Plaintiffs maintain that the extradition statute requires the courts to issue non-final, non-binding "advisory opinions" which are subject to review and revision by the Executive branch. The statute is therefore unconstitutional, say the plaintiffs, because "Congress cannot vest review of the decisions of Article III courts in officials of the Executive branch." Plaut v. Spendthrift Farm, Inc., 131 L. Ed. 2d 328, 115 S. Ct. 1447, 1453 (1995). The government counters that the extradition statute strikes a reasonable balance between the due process rights of the accused, on the one hand, and significant foreign policy interests of the United States (including compliance with treaty obligations, comity, and mutual law enforcement assistance), on the other. Rather than impermissibly "intermingling" the powers of the Executive and the Judiciary, the extradition statute creates a "'twilight area' wherein 'the activities of the separate Branches merge.'" Gov't Reply at 14 (quoting Mistretta v. United States, 488 U.S. 361, 386, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989)).
In addition, the government notes that the procedures by which the United States performs extraditions have been in place for over 150 years and have never been questioned by any court.
1. Extradition Judges' Decisions Are Neither Binding Nor Final
The government's contention that extradition judges' decisions are final and binding upon the parties is insupportable. In the first instance, if an extradition judge determines that a particular extradition request may not lawfully be granted, this decision is not legally binding upon either the government or the accused. The government may not appeal the decision; in fact, there is no provision whatever in the current extradition scheme for judicial appeal of any kind.
More importantly, however, the extradition judge's determination of non-extraditability has no res judicata effect. Collins v. Loisel, 262 U.S. 426, 429-30, 67 L. Ed. 1062, 43 S. Ct. 618 (1923); Hooker v. Klein, 573 F.2d 1360, 1364-65 (9th Cir. 1978). There appears to be no legal limit on the number of times extradition proceedings may be brought against the same individual on the same charges. See Collins, 262 U.S. at 429-30 ("Protection against unjustifiable vexation and harassment incident to repeat arrests for the same alleged crime must ordinarily be sought, not in constitutional limitations or treaty provisions, but in a high sense of responsibility on the part of the public officials charged with duties in this connection.") Certainly a prisoner who found himself facing trial in a foreign country following multiple extradition proceedings in this country would dispute the government's contention that the original magistrate's determination of nonextraditability was "binding."
In the second instance, it is quite clear that if an extradition judge does certify a given defendant as extraditable, under the current scheme the Secretary of State may review the judge's legal conclusions. If the Secretary disagrees with the these conclusions, historical practice indicates that he may well decline to extradite the person for the express reason that it would be unlawful to do so. How then can it be said that the extradition judge's ruling on the issue of extraditability was binding? During an extradition hearing the Executive branch essentially "stands in the shoes" of the requesting nation, and United States Attorneys in effect represent the interests of the country which seeks to obtain custody of the accused.
When viewed in this manner, it is clear that the judge's certification of extraditability is not binding on the parties because one "party" -- the requesting nation -- is denied satisfaction by virtue of the Secretary's later disagreement as to the legality of the extradition. A foreign country (Prussia, for example, in the case of In re Stupp) which had requested the extradition of a particular individual and which had been told by the Secretary of State that the extradition could not lawfully be performed certainly would not agree with the government's assertion that the extradition judge's ruling on this issue was "binding."
In sum, it is simply idle to contend that the decisions of extradition judges are binding. Not only may a failed extradition request be brought again and again until a judge is found who will certify the requested party as extraditable, the Secretary of State can and does purport to review the legal determinations of extradition judges. Under the present scheme, a judge's determination of extraditability "binds" nothing.
2. Extradition Judges' Decisions Are Subject to Executive Review
The overwhelming evidence of Executive branch review is set forth above and need only be summarized here. Upon his finding of extraditability, the statute commands the judge or magistrate to "certify" to the Secretary of State the evidence upon which he based this conclusion and to forward to the Secretary "a copy of all the testimony taken before him." 18 U.S.C. § 3184. Must the extradition judge forward to the Secretary of State the evidence upon which he based his decision in order to assist the Secretary in making a purely foreign policy-based decision? Improbable though it may seem, this appears to be the final position of the government.
This contention, however, simply strains credibility -- a fair-minded reading of the statute makes clear that its drafters fully intended that the Secretary of State have the ability to review the legal conclusions of the extradition Judge. And indeed, as revealed both by its own interpretations Executive's understanding of its role under the extradition statute.
3. Similar Statutes have Not Survived Separation-of-Powers Analysis
The Supreme Court has rebuffed prior attempts by Congress to create a scheme whereby the Judicial branch renders a preliminary legal ruling which the Executive may then accept or ignore. That such a regime violates constitutional separation-of-powers principles is apparently so obvious that the cases cited by plaintiffs are well over 100 years old. The cases upon which plaintiffs principally rely are Hayburn's Case 2 U.S. (2 Dall.) 408 (1792); Gordon v. United States, 69 U.S. (2 Wall.) 561, 17 L. Ed. 921 (1865); and United States v. Ferreira, 54 U.S. (13 How.) 40, 14 L. Ed. 42 (1852).
The statute at issue in Hayburn's Case required federal judges to investigate and "certify" to the Secretary of War the eligibility of particular Revolutionary War veterans to receive pensions. The Secretary then exercised his own discretion in deciding whether to place eligible persons on the list of pension recipients. Chief Justice Jay and Justice Cushing, sitting as Circuit Judges, held:
That neither the Legislative nor the Executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.
That duties assigned to the circuit courts, by this act, are not of that description, and that the act itself does not appear to contemplate them, as such; in as much as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the secretary at war, and then to the revision of the Legislature; whereas, by the constitution, neither the secretary at war, nor any other executive officer, nor even the Legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court.