thank you for your patience and waited so long or short of may please the court my name is craig harbaugh and i represent arthur patterson there is no dispute that south korea violated the extradition treaty by delaying the request well beyond the statue of limitations period the question for this court is whether the the lower courts are wrong not to enforce the treaty this court should reverse the decisions below and hold that the extradition treaties article six lapse of time provision is mandatory for three reasons first the common understanding of the senate and the executive at the time advice and consent second careers understanding years the just each with a charging him with they charging him with a nine on first degree murder i wasn't clear on that your honor they charged him with murder the extradition judge certified for second degree murder only the government had argued extensively that it was first read murder return what would he stand trial for murder homicide under korean law so that that would be the equivalent of first degree murder not second degree controlling determination here is what the extradition judge certified in korea cannot prosecute him for any offense beyond what the action certified here the judge was meticulous in concluding that it was soley the resoled probably cause for second degree murder and that dictates what the political steps will take place not going to prosecute him under u s law are they they are not your honor but the determination for purposes of article six definitely mitigations that it seems to me you're right so far meaning let's say that korea or some other state request extradition on the amount of first we murder but the only crime that that seems probable cause at all is not even murder at all but attempted assault for wichita a fairly minor crime extraditable i will assume but statute limitations a couple of years it seems to me that be denied so the question is who gets to deny and i think i read that as that's an executive branch suspicion as to whether or not it is or is not and that's my problem with your case your honor i knowledge that the lower courts also focused on the word may there are several reasons why a name does not is not determined if you're first pure cannons a treaty interpretation a treaty is a contract it's not a statute we don't apply normal rules a statutory construction to a treaty so the court must of course says the supreme court is dictated look at the text but the put is a permissive obligation but it can be overcome even for a statute if it's contrary to legislative intent and the object and purposes of the provision and we would say you don't have any authority that that's the case here it's just your interpretation of it your interpretation in context my right you have it you have any cases that support your position your honor you're saying with solely within the c must your honor i disagree and that's the focus is on the the state department to department of justice's technical analysis of the treaty and not this particular portion is found at government excerpt that it would be difficult in implementation and which we believe supports the argument that it is a mandatory bar subject to conditions that is consistent with the executors reading and your honor i w to the extent the government the court disagrees and accept the government's argument that the executives technical analysis neither supports nor undermines a discretionary reading then the court   secretary of state in anything my question to you is do you get an opportunity to brief the secretary of state before he makes a decision no your honor there is no mechanism provided to relate hers after the extradition formal disclosure as to what the secretary has done there's no notice whatsoever and so your honor it to the extent that mr patterson could send a letter blindly to the secretary i think is really a hollow process your honor there is no opportunity to challenge it after the fact and your honor i need knowledge that the court concerns with regard to the executive technical analysis but there's also careers understanding in the court can't discount that here we're doing dealing with two sovereign nations korea insisting on this provision and it's very  know that they're going mastic law demands denial of extradition whether it violates the statute he sins in their country or the requesting nation which would include the us and your honor that further support mandatory direction your honor i would also as we point out in the text in determining what we and the u s next there will be multiple provisions article two paragraph four article four paragraph fought for article thirteen and article fifteen all explicitly reference discretion of the executive authority and then this provi don't have their plain meaning and i've got to go through the documents that were before the senate at the time passed its resolution unconditional resolution to adopt this treaty so at the beginning thirteen and in that submit all the executive is is summarizing the provisions of the treaty and with regard to article six the language is article six permits extradition to be denied so that is consistent with our position that the term a is a permissive discretionary term so the next spot so you're argument would be that if it without reading correct but if i could speak to that you talked about the language where it says precludes crown's ok first of all that's not language written by the executive that's that's written by someone from the senate foreign relations committee and it's in the section of the senate report that summarizes the some of the provisions of the treaty and if we look at the entire paragraph what it says is that the treaty the purpose of this provision was to be was to give each country the just ration to deny extradition on the basis of statute of limitations b here the word precludes is inconsistent but what the purpose of this provision was because the tolling provisions in korea and the united states are so different korea wanted to have  it clear that each side had the discretion to respect each other's towing provisions or not so for example in this case the petitioners crime to make sure that it would be up to the secretary of state to decide whether or not the statute of limitations bar the extradition right but my only point about about the  porton it's just that there's nothing else in the senate report that contradicts the clear meaning of the executive if you look at the technical analysis provided by the executive part of the senate report there's an there's an entire couple of three paragraphs and now i'm at the government's appendix page forty five and the first paragraph again states you know the maybe tonight language the second paragraph describing the purpose of this provision and again at the end of that paragraph therefore the treaty provides that the request may be tonight if it would be time part of the request of the state but that after that we're told the statute  lawyer there's no formal process in other words there's no formal briefing process but that any piece of paper submit it will be analyzed and that part of the analysis and part of wh petition or for extradition and part of the concerns are things that have not been considered before fairness is concerned is part of the concern even the secretary of state will say you know this crime happened a long time ago we're not go because of that or maybe you know because he couldn't be prosecuted here we're not going to extradite him but that's where the decision making rests well the you know this the facts of this case kind of bring this whole thing into some light because it it isn't it isn't a situation where the serviceman is over there he's alleged to have done something he comes back to the united states and six months later korea says we want him back again i mean here you have this stabbing that occlude occurs in this rest room there's two people involved along with the cd and and one gets charged he gets convicted that's set aside destruction of evidence having to do with and i think correct and then they don't pursue it he comes back and he's here for a decade and then they appellate judge least some television show brings this situation ultimate decision making discretionary power the power that the courts have is something that's been delegated to the judiciary by the executive and it is a limited power and how do i know that it contains that if i understand your honor correctly you don't have the discretion to decide whether or not he should be extradited based i'm asking you get tell me more about why we don't have we don't have the discretion to exercise the decision under the man why that decision has to be made by the secretary of state or the executive rather than by the court whether textured right or not correct and i'm with you so far ok my question is how do we know that it's the secretary of state of the executive that has the discretion rather than the court under thirty one eighty four the court's shaab is to determine whether or not the case should be certified for execution and then it passes on the sector s part of that decision at the magistrate judge level is probable cause interpretation of the treaty excuse me and what it means and whether or not the crime falls within the treaty those sorts of determination decide if we decide that the the answer is may means may and not shall we don't have the discretion to exercise may or may not correct that's entirely up to the secretary all that the right correct that's currently you know if there's any proceeding in front of that committee under the under the status of forces agreement at this at the present time i think my quick look you know this sure looks like double jeopardy to me but i don't i don't think i have addressed x to say this i'm just asking would be determined by that committee that's  your honor i dislike to address two points the government raise first the government argues that korea wanted to be discretionary the report particularly the tecla analysis pay forty five directly undermines that career demanded it was the authority to deny extradition and i'm a fully accomplishes that because if they don't want to extradite him nothing requires him to do it your honor and i i would disagree because i don't think it doesn't appear that korea wanted to provide discretion to the united states but hamstring themselves in making this determination all they wanted not to have thing themselves and that's what they got they don't have to actually that has expired under u s law and so it is not of the type or provision such as a capital punishment provision where policy considerations come into play here the issue is very clear and discrete whether it's violated or not and we believe that this case typifies why this needs to be a mandatory provision and not discretionary leaving it up to political considerations where a u s citizen is drug back into court the second in a decade later to face a charge he already was concluded to not have committed in finding him guilty of destruction of evidence your honor this to