Sixth Circuit
reviews habeas corpus challenge to
extradition by a Balkan native and naturalized U.S. citizen who allegedly
committed crimes against ethnic Serbs; Bosnian Court made a finding of probable
cause that satisfies the requirement of “duly authenticated copy of the warrant
of arrest” under Extradition Treaty
Azra
Bašić, a Balkan native, came to United States in 1994 as a refugee to escape
the Yugoslavian civil war. She settled in Kentucky and eventually became a
naturalized United States citizen. During the civil war in Yugoslavia, Bašić
was a member of the Croatian army. She now stands accused in Bosnia and
Herzegovina (Bosnia) of crimes committed against ethnic Serbs. Republic of
Srpska (i.e., the “Serb Republic”), a quasi-independent administrative entity
within Bosnia, has asked the United States to extradite Bašić so that she can
stand trial.
In
2011, the Department of State filed a Complaint for Extradition. A United
States Magistrate Judge concluded that Bašić was extraditable under a 1902
extradition treaty between the United States and the Kingdom of Serbia, and
certified the complaint. See Treaty for the Mutual Extradition of Fugitives
from Justice, U.S.-Serb., Oct. 25, 1901, 32 Stat. 1890. Because a direct appeal
is not available in extradition proceedings, Bašić filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2241. The district court denied the
petition. Bašić appealed.
The
United States Court of Appeals for the Sixth Circuit affirms the district
court’s judgment denying Bašić’s habeas corpus petition.
Bašić
argued that the Treaty prohibits extradition of U.S. citizens to Bosnia,
because, as provided by the Treaty, each country has a general obligation to
honor extradition requests, but neither country “shall be bound to deliver up
its own citizens.” According to Bašić, this provision represents an absolute
bar on the extradition of U.S. citizens to Bosnia that can be removed only by
the ratification of a new treaty. The Court did not agree:
“We
begin with the Supreme Court’s decision in Valentine v. United States ex rel.
Neidecker, which considered nearly identical language in an extradition treaty
between the U.S. and France and concluded that U.S. citizens could not be
extradited under that treaty. 299 U.S. 5, 8, 18, 57 S.Ct. 100, 81 L.Ed. 5
(1936). The Court explained that the power to extradite ‘is a national power,’
but that ‘the Constitution creates no executive prerogative to dispose of the
liberty of the individual.’ Id. at 8-9, 57 S.Ct. 100. Thus, ‘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. at 9, 57 S.Ct. 100. With the exception of
extradition from an occupied country or territory, Congress had not at that
time given the executive power to extradite anyone, but had only defined the
procedures for carrying out existing extradition treaties. Id. The extradition
treaty between the U.S. and France did not explicitly grant such a power to the
executive, nor was the Court willing to read the provision that neither party
‘shall be bound to deliver up its own citizens’ as implying such authority. Id.
at 18, 57 S.Ct. 100. In light of this, the Court concluded, the executive was
‘without power to surrender’ U.S. citizens to France. Id.”
“Congress
addressed this lack of power in 1990 by passing 18 U.S.C. § 3196, which
provides that
‘If
the applicable treaty or convention does not obligate the United States to
extradite its citizens to a foreign country, the Secretary of State may,
nevertheless, order the surrender to that country of a United States citizen
whose extradition has been requested by that country if the other requirements
of that treaty or convention are met.’”
Assuming
that § 3196 conflicts with the Treaty, Bašić argued that this statute is an
unconstitutional attempt by Congress to circumvent the treaty-making
requirements of Article II. The Court did not agree:
“Valentine
did not address what a nation may do under the relevant treaty language, but
rather which governmental actors within the United States government are
empowered (or not) to use their discretion to extradite U.S. citizens. But we
need not rely merely on the logic of the opinion; Valentine — on no fewer than
five occasions — explained that the executive’s lack of discretionary authority
could be remedied either by amending the treaty or by enacting a ‘statute
conferring an independent power’ on the executive. 299 U.S. at 18, 57 S.Ct.
100; accord Munaf v. Geren, 553 U.S. 674, 704, 128 S.Ct. 2207, 171 L.Ed.2d 1
(2008) (‘[T]he Executive may not extradite a person held within the United
States unless `legal authority’ to do so `is given by act of Congress or by the
*900 terms of a treaty.’” (quoting Valentine, 299 U.S. at 900 9, 57 S.Ct.
100)).”
The
Court also did not agree with Bašić’s contentions that Valentine “only
sanctions congressionally authorized extradition independent of a treaty when
it occurs in a foreign country or territory `occupied by or under the control
of the United States[,]” and that, “[o]utside of this `limited provision[,’]
acts of Congress independent of a treaty can only define `... the procedure to
carry out an existing extradition treaty or convention[.’]”
“[…]
Indeed, this argument is a gross distortion of what Valentine actually said,
casting as normative a passage that was descriptive:
‘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.’ 299 U.S. at 9, 57 S.Ct. 100 (internal quotation marks, citations,
and footnote omitted).”
“The
only support that Bašić can muster in support of her position is a district
court opinion that characterized §3196 as ‘an unprecedented Congressional
action’ to ‘amend’ treaties like the one at issue in this case. Gouveia v.
Vokes, 800 F.Supp. 241, 250 (E.D.Pa.1992). But that case reached this
conclusion only by first making the same mistake Bašić does, concluding,
without analysis, that the relevant treaty language ‘forbids the extradition of
American citizens.’ Id. at 242 (citing Valentine, 299 U.S. at 5, 57 S.Ct. 100).
This treaty language does no such thing: there is a vast difference between not
being bound to do an act and being forbidden to do it. Finally, the only thing
amended by § 3196 is the U.S. Code. See Hilario v. United States, 854 F.Supp.
165, 173 (E.D.N.Y.1994). [3] And § 3196 is dispositive: the Secretary of State
is empowered to extradite U.S. citizens to Bosnia, provided that the Treaty’s
other requirements are met.”
Citation: Bašić v. Steck, 819 F.3d 897
(6th Cir. 2016). Legal commentary by Terik Hashmi, www.terikhashmiattorney.com.