1 The full name of the Tribunal is: International Tribunal for the Prosecution of Persons

Resp o nsible for Genocide and Other Serious Violations of International Humanitarian Law

Committed in the Terri tory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States. See National Defense Authorization Act, Pub. L. 104-106, § 1342(c)(2), 110 Stat. 486 (1996). REVISED - August 23, 1999

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 98-41597

____________

ELIZAPHAN NTAKIRUTIMANA,

Petitioner-Appellant,

versus

JANET RENO, Attorney General of the United

States; MADELEINE ALBRIGHT, Secretary of State

of the United States; J UAN GARZA, Sheriff of

Webb County, Texas,

Respondents-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

August 5, 1999

Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Elizaphan Ntakirutimana appeals the district court’s denial of

h is habeas corpus petition that challenged the district cou rt’s

grant of a second request for surrender. He alleges that the

distric t court erred because (1) the Constitution of the United

States requires an Article II treaty for the surrender of a person

to the International Criminal Tribunal for Rwanda (“ICTR” or “Tribunal”), 1

(2) the request for surrender does not establish probable cause, (3) the United Nations (“U.N.”)2 The Statute of the ICTR, which is annexed to Resolution 955, and the Rules of Procedure and

Evidence of the ICTR guide proceedings before the ICTR.

-2- Charter does not authorize the Security Council to establish the ICTR, a nd (4) the ICTR i s not

capable of protecting fu ndamental rights guaranteed by the United States Constitution and

international law. We affirm.

I

Rwanda has been the source of ongoing ethnic conflict between members of the majority Hutu

and minority Tutsi tribes. In April 1994, President Juvenal Habyarimana of Rwanda, a Hutu, was

killed when his aircraft crashed due to an artillery attack. The crash triggered a wave of violence by

the Hutus against the Tutsis, whic h resulted in the deaths of between 500,000 and one-million

persons. Tutsi rebels triumphed over the Hutus, and the Tutsi-dominated government then requested

the U.N. to create an international war crimes tribunal. An investigation by the U.N. established that

the mass exterminations of the Tutsis—motivated by ethnic hatred—had been planned for months.

The Security Council adopted Resolution 955, which created the ICTR to prosecute and to punish

the individuals responsible for the violations in Rwanda and its neighboring states between January

1 and December 31, 1994. The Resolution directed that “all States shall take any measures necessary

under their domestic law to implement the provisions of the present resolution and the Statute [of the

ICTR].” 2 S.C. Res. 955, U.N. SCOR, 49 t h Sess., 3453d mtg. at 1-2 (1994), reprinted in 33 I.L.M.

1598, 1601 (1994).

In 1995, the President of the United States ente red int o an executive agreement with the

ICTR, entitled the Agreement on Surrender of Persons Between the Government of the United States

and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other

Serious Violations of Internatio nal Humanitarian Law Committed in the Territory of Rwanda and

Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Terri tory

of Neighboring States (“Agreement”). The Agreement provided that the United States “agrees to

surrender to the Tribunal

. . . persons

. . . found in its territory whom the Tribunal has charged with3 Article 2 of the Statute of the ICTR provides that the ICTR has the power to prosecute

genocide, including complicity in genocide and conspiracy to commit genocide. Article 3 provides the ICTR with the power to prosecute crimes against humanity. Article 4 provides the

ICTR with the power to prosecute serious violations of Article 3 common to the Geneva Conventions

and of Additional Protocol II thereto. See S.C. Res. 955, at 3-5.

4 A “prefecture” is like a state, and a “commune” is like a county within a state.

-3- or found guilty of a violation or violations within the competence of the Tribunal.” Agreement, art.

1, cl. 1, Jan. 24, 1995, U.S.-Int’l Trib. Rwanda, 1996 WL 165484, at *1 (Treaty ). In 1996, Congress

enacted Public Law 104-106 to implement the Agreement. S ee National Defense Authorization Act,

Pub. L. 104-106, § 1342, 110 Stat. 486 (1996). Section 1342(a)(1) of this legislation provides that

the federal extradition statutes (18 U.S.C. §§ 3181 et seq. ) shall apply to the surrender of persons

t o t he ICTR. Among the statutory provisions made applicable is 18 U.S.C. § 3184. This sect io n

authorizes a judicial officer to hold a hearing to consider a request for surrender. If the judicial officer

finds the evidence suff

icient to sustain the charges under the treaty or convention, then the officer

certifies to the Secretary of State that the individual may be surrendered. S ee also 18 U.S.C. § 3186

(conferring final authority on the Secretary of State to order a fugitive’s surrender where a judicial

officer has ruled that the requirements for extradition have been met).

In June and September 1996, the ICTR returned two indictments ag ainst Pastor

Ntakirutimana, charging him with the crimes of gen o cide, co mplicity in genocide, conspiracy to

commit genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva

Conventions and of Addi ti onal Protocol II thereto. 3 At the time of the charges, Ntakirutimana, a

Hutu, served as President of the Seventh Day Adventist Church for all of Rwanda. He was based in

a church complex (the “Complex”) in Mugonero, Gishyita Commune, Kibuye Prefecture, Rwanda, 4

and was well known in the Complex and the community. The first indictment alleges that, following

the beginning of the wave of violence in 1994, Ntakirutimana and o t her individuals prepared and

executed a plan by which they encouraged large numbers of the local Tutsi population to seek refuge

in the Complex. They separated the Hutus from the Tutsis and encouraged the Hutus to leave.

Ntakirutimana then raised an armed m o b o f Hutus, led them to the Complex, and directed the5 The government did not appeal the request, because extradition decisions are not appealable

under 28 U.S.C. § 1291. S ee In re Extradition of Howard, 996 F.2d 1320, 1325 (1 st Cir. 1993) (explaining that the extradition judge is not acting in his capacity as an Article III judge, and thus the

decision is not a decision of the “district court”). The government’s remedy is to file another request. See, e.g., id. at 1325; Gusikoff v. United States, 620 F.2d 459, 461 (5 th Cir. 1980).

6 The district co urt judge served as the judicial officer for the extradition proceeding. We recognize that the order issued by the judge is not an order of the “district court,” yet we refer to it as such for simplicity.

-4- slaughter of the Tutsis who had sought shelter there. A Tribunal Judge confirmed the indictment and

issued a warrant for Ntakirutimana’s arrest.

The second indictment charges Ntakirutimana with conduct that occurred after the massacre

at the Complex. The survivors of the attack fled to the Bisesero area of Kibuye Prefecture, Rwanda.

The indictment alleges that Ntakirutimana drove armed Hutu soldiers into the Bisesero region, hunted

for hiding Tutsis, and ordered the soldiers to kill them. A Tribunal Judge confirmed t he second

indictment and issued another warrant for Ntakirutimana’s arrest.

Ntakirutimana has legally resided in Laredo, Texas since he left Rwanda in 1994. The ICTR

requested t hat the United States extradite Ntakirutimana to the ICTR pursuant to the Agreement.

In September 1996, the Government filed a request for Ntakirutimana’s surrender to the ICTR in the

Southern District of Texas. A Magistrate Judge, serving as the judicial o fficer, denied the

Government’s request for surrender. He held that Public Law 104-106 is unconstitutional because,

based on historical practice, extradition requires a treaty

. S ee In re Surrender of Ntakirutimana, 988

F. Supp. 1038, 1042 (S.D. Tex. 1997). He held alternatively that the request for surrender, and the

supporting documents, did not provide probable cause to support the charges. See id. at 1044.

To address the evidentiary issues raised by the Magistrate Judge, the Government added two

declarations, and filed another request for surrender in the same court. 5 The district court certified

the surrender to the ICTR. 6 The court held that the Agreement and Public Law 104-106 provide a

constitutional basis for the extradition of Ntakirutimana. Among other reasons, the court found that

the Constitution sets forth no specific requirements for extradition, that the Supreme Court has

indicated its approval of extraditions made in the absence of a treaty, and that there is precedent7 We granted a stay of extradition pending appeal.

8 The judicial officer, whether state or federal, who is authorized to hold an extradition hearing

pursuant to the terms of 18 U.S.C. § 3184 is often referred to as a “magistrate” or as the “committing

court.” See Sayne v. Shipley, 418 F.2d 679, 685 n.15 (5 th Cir. 1969).

-5- wherein fugitives were extradited pursuant to statutes that “filled the gap” left by a treaty provision.

See In re Surrender of Ntakirutimana, No. CIV. A. L-98-43, 1998 WL 655708, at * 9, 17 (S.D. Tex.

Aug. 6 1998). The court also held that the evidence sufficed t o establish probable cause for the

charges against Ntakirutimana. S ee id. a t *30. Ntakirutimana filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2241. The district court denied the petition, and Ntakirutimana has timely

appealed. 7

II

T he sco pe of habeas corpus review of the findings of a judicial officer that conducted an

extradition hearing is extremely limit ed. S ee Garcia-Guillern v. United States, 450 F.2d 1189, 1191

(5 th Cir. 1971). We inquire only into (1) whether the committing court 8 had jurisdiction, (2) whether

the offense charged is within the treaty

, and (3) whether the evidence shows a reasonable ground to

believe the accused guilty. See Fernadez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 542, 69 L.

Ed. 970 (1925); Garcia-Guillern, 450 F.2d at 1191. A writ of habeas corpus in a case of extradition

is not a means for rehearing the findings of the committing court. S ee Fernandez, 268 U.S. at 312,

45 S. Ct. at 542; Oteiza v. Jacobus, 136 U.S. 330, 334, 10 S. Ct. 1031, 1032, 34 L. Ed. 464 (1890);

Escobedo v. United States, 623 F.2d 1098, 1101 (5 th Cir. 1980).

III

Ntakirutimana alleges that Article II of the Constitution of the United States requires that an

extradition occur pursuant to a treaty

. It is unconstitutional, he claims, to extradite him to the ICTR

pursuant to a statute in the absence of a treaty

. Accordingly, he claims it is unconstitutional to

extradite him on the basis of the Agreement and Pub. Law 104-106 (the “Congressional-Executive9 S ee T HE R ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW

, § 303 cmt. e (1986) (describing

Congressional-Executive agreements).

1 0 We may review this issue because Ntakirutimana’s challenge to the constitutionality of the

statu t e, pursuant to which the district court issued the certification of extraditability, represents a challenge to the commit t ing court’s jurisdiction. S ee, e.g., Manrique Carreno v. Johnson, 899 F. Supp. 624, 629 (S.D. Fla. 1995) (construing constitutionality argument as a challenge to the committing court’s jurisdiction).

1 1 The exception clause provided, “Neither of the contracting Parties shall be bound to deliver up

its own citizens or subjects under the stipulations of this convention.” V alentine, 299 U.S. at 7, 57

S. Ct. at 102 (citations omitted). Historically, “[w]here treaties have provided for the extradition of

persons without exception, the United States has always construed its obligation a s embracing i ts

-6- Agreement”). 9 The district court concluded that it is constitutional to surrender Ntakirutimana in the

absence of an “extradition treaty ,” because a statute authorized extradition. We review this legal

issue de novo

. 10 S ee United States v. Luna, 165 F.3d 316, 319 (5 th Cir. 1999), cert. denied,

__ U.S.

__, 119 S. Ct. 1783, 143 L. Ed. 2d 811 (1999) (reviewing constitutionality of extradition statute de

novo ).

To determine whether a treaty is required to extradite Ntakirutimana, we turn to the text of

the Constitution. Ntakirutimana contends that Article II, Sect io n 2, Clause 2 of the Constitution

requires a treaty to extradite. This Clause, which enumerates the President’s foreign relations power,

provides in part that “[the President] shall have Power, by and with the Advice and Consent of the

Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate,

and by and with the Advice and Consent of the Senate, s hall appo int Ambassadors, other public

Ministers and Consuls . . . .” U. S. C ONST

. art. II, § 2, cl. 2. This provision does not refer either to

extradition or to the necessity of a treaty to extradite. The Supreme Court has explained, however,

that “[t]he power to surrender is clearly included within the treat y-making power and the

corresponding power of appointing and receiving ambassadors and other public ministers.” T erlinden

v. Ames, 184 U.S. 270, 289, 22 S. Ct. 484, 492, 46 L. Ed. 534 (1902) (citation omitted).

Yet, the Court has found that the Executive’s power to surrender fugitives is not unlimited.

In Valentine v. United States, 299 U.S. 5, 57 S. Ct. 100, 81 L. Ed. 5 (1936)

, the Supreme Court

co nsidered whether an exception clause 1 1 in the United States’s extradition treaty wit h Francecitizens.” I d. (citation omitted). Exception clauses excuse a government from surrendering its own

citizens.

-7- implicit ly granted to the Executive the di scret ionary power to surrender citizens. The Court first

stated that the power to provide for extradition is a nat ional power that “i s not confi ded to the

Executive in the absence of t reat y or legislative provision.” I d. at 8, 57 S. Ct. at 102. The Court

explained:

[The power to extradite] rests upon the fundamental consideration that the Cons tituti on

creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to

a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a

treaty

, it is not enough that the statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.

Id. at 9, 57 S. Ct. at 102.

The Court then considered whether any statute authorized the Executive’s d iscretion to

extradite. The Court commented that:

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 terri tory “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 proced ure to carry out an exi sti ng extradition treaty or convention.

Id. at 9, 57 S. Ct. at 102-03 (citations omit t ed). The Court concluded that no statutory basis

conferred the power on the Executive to surrender a citizen to the foreign government. S ee id. at 10,

57 S . Ct. at 103. T he Court subsequently addressed whether the treaty conferred the power to

surrender, and found that it did not. S ee id. at 18, 57 S. Ct. at 106. The Court concluded that, “we

are constrained to ho ld that [the President’s] power, in the absence of statute conferring an

independent power, must be found in the terms of the treaty and that, as the treaty with France fails

to grant the necessary authority, the President is without the power to surrender the respondents.”

Id. The Court added that the remedy for this lack o f po wer “lies with the Congress, or with the

treaty-making power wherever the parties are willing to provide for the surrender of citizens.” Id.1 2 For example, Madison proposed making two types of treaties: one made by the President with

the concurrence of the Senate, and the other requiring the concurrence of the whole legislature.

-8- Valentine indicates that a court should look to whether a treaty or statute grants executive

discretion to extradite. Hence, V alentine supports the constitutionality of using the CongressionalExecutive Agreement to extradite Ntakirutimana. Ntakirutimana attem pts to distinguish Valentine

on the ground that the case dealt with a treaty between France and the United States. Yet, V alentine

indicates that a statute suffices to confer authority on the President to surrender a fugitive. See id.

Ntakirutimana suggests also that Valentine expressly challenged the power of Congress, independent

of treaty

, to provide for extradition. V alentine, however, did not place a limit on Congress’s power

to provide for extra dition. S ee id. at 9, 57 S. Ct. at 102 (“Whatever may be the power of the

Congress to provide for extradition independent of treaty

. . .”). Thus, although some authorization

by law is necessary for the Executive to extradite, neither the Constitution’s te xt nor V alentine

require that the authorization come in the form of a treaty.

Notwithstanding the Consti tuti on’s text or V alentine, Ntakirutimana argues that the intent

o f the drafters of the Constitution supports his interpretation. He alleges that the delegates to the

Constitutional Convention intentionally placed the Treaty power exclusively in the President and the

Senate. The delegates designed this arrangement because they wanted a single executive agent to

negotiate agreements with foreign powers, and they wanted the seni or House of Congress—the

Senate—to review the agreements to serve as a check on the executive branch. Ntakirutimana also

claims that the rejection of alternative proposals suggests that the framers believed that a treaty is the

only means by which the United States can enter into a binding agreement with a foreign nation. 12

We are unpersuaded by Ntakirutimana’s extended discussion of the Constitution’s history.

Ntakirutimana does not cite to any provision in the Constitution or any aspect of its hi story that

requires a treaty to extradite. Ntakirutimana’s argument, which is no t specific to extradition, is

premised on the assumption that a treaty is required for an international agreement. To the contrary

,

“[t]he Constitution, while expounding procedural requirements for treaties alone, ap parentl y-9-

contemplates alternate mode s o f international agreements.” L A URENCE H. T RIBE

, A MERICAN

C ONSTITUTIONAL L AW § 4-5, at 228-29 (2d ed. 1988) (explaining that Article 1, § 10 of the

Constitution refers to other international devices that may be used by the federal government). “The

Supreme Court has recogniz ed t hat o f necessity the President may enter into certain binding

agreements with foreign nations not strictly congruent with the formalities required by the

Constitution’s Treaty Clause.” U nited States v. Walczak, 783 F.2d 852, 855 (9 th Cir. 1986) (citations

omitted) (executive agreement). More specifically, the Supreme Court has repeatedly stated that a

treaty or statute may confer the power to extradi te. See, e.g., Valentine, 299 U.S. at 18, 57 S. Ct.

at 106; Grin v. Shine, 187 U.S. 181, 191, 23 S. Ct. 98, 102, 47 L. Ed. 130 (1902) (“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 criminalit y

as it may judge sufficient.” (citation omitted)); Terlinden

, 184 U.S. at 289, 22 S. Ct. at 492 (“In the

United States, the general opinion and practice have been that extradition should be declined in the

absence of a conventional or legislative provision.” (citation omitted)).

Ntakirutimana next argues that historical practice establishes that a treaty is required to

extradite. According to Ntakirutimana, the Unit ed St at es has never surrendered a person except

pursuant to an Article II treaty

, and the only involuntary transfers without an extradition treaty have

been to “a fo reign country or territory ‘occupied by or under the control of the United States.’”

Valentine

, 299 U.S. at 9, 57 S. Ct. at 102. This argument fails for numerous reasons. First

,

Valentine did not suggest that this “historical practice” limited Congress’s power. S ee id. at 9, 57

S. Ct. at 102-03. Second, the Supreme Court’s statements that a statute may confer the power to

extradite also reflect a historical understanding of the Constitution. S ee, e.g., id. at 18, 57 S. Ct. at

106; Grin, 187 U.S. at 191, 23 S. Ct. at 102; Terlinden

, 184 U.S. at 289, 22 S. Ct. at 492. Even if

Co ngress has rarely exercised the power to extradite by statute, a historical understanding exist s

nonetheless that it may do so. Third, in some instances in which a fugit ive would not have been

extraditable under a treaty, a fugitive has been extradited pursuant to a statute that “filled the gap”-10-

in the treaty

. S ee, e.g., Hilario v. United States, 854 F. Supp. 165 (E.D.N.Y. 1994) (uphol di ng

extradition pursuant to a post- Valentine statute that granted executive discretion to extradite). Thus,

we are unconvinced that the President’s practice of usually submitting a negoti ated treaty to the

Senate reflects a historical understanding that a treaty is required to extradite.

We are unpersuaded by Ntakirutimana’s other arguments. First, he asserts that the failure to

require a treaty violates the Constitution’s separation of powers. He contends that if a treaty is not

required, then “the President alone could make dangerous agreements with foreign governments” or

“Congress could legislate foreign affairs.” This argument is no t relevant to an ExecutiveCongressional agreement, w hich involves neither the President acting unilaterally nor Congress

negotiating with foreign countries. Second, Ntakirutimana argues that “statutes cannot usurp the

Treaty making power of Article II.” The Supreme Court, however, has held that statutes can usurp

a treaty

. This is confirmed by the “last in time” rule that, if a statute and treaty are inconsistent, then

the last in time will prevail. See, e.g., Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct. 456, 458,

31 L. Ed. 386 (1888) (“if the two are inconsistent, the one last in date will control the other”). This

rule explicitly contemplates that a statute and a treaty may at times cover the same subject matter.

Third, Ntakirutimana contends that not requiring a treaty reads the treaty-making power out of the

Constitution. Yet, the treaty-making power remains unaffected, because the President may still elect

to submit a negotiated treaty to the Senate, instead of submitting legislation to Congress. See T HE

R ESTATEMENT (T HIRD ) OF F OREIGN R ELATIONS L AW

, § 303 cmt. e (1986) (“Which procedure should

be used is a political judgment, made in the first instance by the President, subject to the possibility

that the Senate might refuse to consider a j oint resoluti on of Congress to approve an agreem ent,

insist ing that the President submit the agreement as a treaty .” ). Thus, we conclude that it is not

unconstitutional to surrender Ntakirutimana to the ICTR pursuant to the Executive-Congressional

Agreement.

IV13 There is no dispute that all three declarations have been properly authenticated by either the

Ambassador of the United States at Kigali, Rwanda (where the office of the Prosecutor for the

Tribunal is located), or the Ambassador of the United States to the Netherlands (where the Tribunal’s

Prosecutor is based). The authentication renders the documents admissible under 18 U.S.C. § 3190.

See 18 U.S.C. § 3190 (authentication requirement).

-11- Ntakirutimana contends next that the district court erred in dismissing his habeas petitio n

because the request for surrender fails to establish probable cause. The Agreement with the ICTR

requires that the Tribunal present “information sufficient to establish that there is a reasonable basis

to believe that the person sought has committed the vi o lation or violations for which surrender is

requested.” Agreement, art. 2, cl. 3, 1996 WL 165484, at *1. This requirement is designed to meet

our constitutional “probable cau se” st andard in reviewing the sufficiency of the evidence in

extradition proceedings. In reviewing a request for surrender, the committing court must determine

whether probable cause exists to sustain the charges against the accused. S ee Collins v. Loisel, 259

U.S. 309, 314-15, 42 S. Ct. 469, 471, 66 L. Ed. 956 (1922); Escobedo, 6 23 F.2d at1102. Our

function on habeas review “is to determine whether there is any competent evidence tending to show

probable cause. The weight and sufficiency of that evidence is for the determination of the

committing court.” Escobe do, 623 F.2d at 1102 (quotati ons and citations omitted); cf. Quinn v.

Robinson, 783 F.2d 776, 791 (9 th Cir. 1986) (“Because the magistrate’s probable cause finding is thus

no t a finding of fact ‘in the sense that the court has weighed the evidence and resolved disput ed

factual issues,’ it must be upheld if there is any compe tent evidence i n the record to support i t.”

(citations omitted)).

The evidenc e at the extradition hearing consisted of several documents, all of which were

admissible. 13 Along with the first request for surrender, the Government included a declaration from

Arjen Mo st ert , who served for six months as a Tribunal investigator. Mostert obtained the

declarations of twelve witnesses, labeled A-L to protect their identities, who survived the Mugonero

and Bisesero massacres. Mostert declared that the witnesses were ordinary citizens and did not

receive consideration for their testimony. The witnesses, all of who m were familiar with

N takirutimana, described seeing him at the massacre or leading the soldiers in search of Tut sis at1 4 The first indictment is based on evidence from nine wit nesses, fo ur o f whom knew

Ntakirutimana personally. Witnesses B, C, H, and I saw Ntakirutimana among the armed attackers

at the Complex massacre. Witness H heard Ntakirutimana say “kill them all” to an attacker. Witness I heard Ntakirutimana tell Tutsis at the Complex, “you are all condemned to die.”

The second indictment, which involves the events following the Complex massacre, is based

on evidence from five witnesses. Witness C saw Ntakirutimana arrive at a Complex where Tutsis

were hiding, and he he ard Ntakirutimana tell soldiers to “take off the roof from this church so it

cannot be used anymore as a hiding place for these dogs.” Wi tness H corroborated Wi tness C’s

recount. Witness I saw Ntakirutimana shoot at Tutsis.

The Appendix to the district court’s opinion also pro vides summaries of the witnesses’

statements. See Ntakirutimana, 1998 WL 655708, at *33-37.

1 5 Mostert’s supplemental declaration explained that he used different interpreters for many of the interviews, and that he used the interpreters for a large number of other interviews. He stated that

the interpreters appeared to interpret correctly based on several criteria. He also explained that the photograph identification was confirmatory in nature. Mostert showed the photograph of

Ntakirutimana to many of the witnesses after they stated that they knew him and had provided a physical description that Mostert believed to be correct.

1 6 Prosper provided the following clarifying information. First, many of the wit nesses were interviewed several times, and the interviews initially were general and later became more focused.
Second, the Office of the Prosecutor for t he ICTR has a policy to read back the statement to the witness for accuracy, and all of the witnesses upon whom Mostert relied were subjected to this process. The witnesses all signed their statement and a Witness Acknowledgment

Form affirming that the statement is true to the best of their recollection. Third, all witnesses spoke Kinyarwanda, except for Witness B who was interv iewed in French by a French-speaking investigator. Prosper stated that the texts of the written statements were proficiently written, a nd t hat he personally knew all of the interpreters who performed the final

interviews. For each interview, the interpret er signed a certification that he had translated the

interview. Fourth, Prosper attested that, based on the information before him, he believed t he

witnesses to be reliable. He stated that the witnesses are ordinary citizen-victim-eyewitnesses who were speaking of their own personal experiences. They were not informants, their statements

corroborated one another, and he had discovere d no evidence that a witness had a reason to lie.
Fifth, all the witnesses knew or were familiar with Ntakirutiman a, who was a chief pastor in the Complex. Ten of the witnesses claimed Seventh Day Adventist as their religion. All of the witnesses

-12- Bisesero. 14 The witnesses’ statements corroborated one another, and many of the witnesses positively

identified a photograph of Ntakirutimana. When the Magist rate Judge denied the first request for

surrender, he found Mostert’s affidavit alone insufficient to provide probable cause to support the

charges.

In response to the Magistrate Judge’s co n cerns, the Government added a supplemental

declaration of Mostert with its second request for surrender. 15 The second request also included the

declaration of Pierre-Richard Prosper, the assistant prosecutor for the ICTR. Prosper further clarified

the information in Mostert’s init ial declaration. 1 6 The district court stated that the supplementalbut one were Tutsi.

1 7 Ntakirutimana argues initially that “it is rare for substantive criminal allegations in support of

an extradition request to be presented solely in an investigator’s affidavit.” We deem this objection
waived, because Ntakirutimana did not raise the objection at his extradition hearing. See Lo Duca

v. United States, 93 F.3d 1100, 1111 (2d Cir. 1996) (finding that extraditee waived non-jurisdictional objection by failing to raise the objection at the extradition hearing).

1 8 Apart from his credibility challenges, Ntakirutimana briefly attempts to explain his actions. He asserts that, because churches were customary places of sanctuary, there would be nothing sinister

for anyone to encourage Tutsis to congregate in the Complex. Yet, this explanation fails to explain

most of the allegations against him. Further, Ntakirutimana conceded at the extradition hearing that, without respect to the reliability of the evidence (which has been resolved adversely to Ntakirutimana), the substance of what is reported in the affidavits constitutes probable cause.

-13- declarations satisfactorily responded to the Magistrate Judge’s earlier objections. The district court

concluded that probable cause existed to sustain the charges against Ntakirutimana.

Ntakirutimana argues that t he dist rict court erred. He contends that the Tribunal has not

presented evidence sufficient to sho w pro bable cause, because the allegations in Mostert’s

declarations “lack probati ve fo rce and are unreliable.” 1 7 Ntakirutimana primarily raises credibility

challenges to the evidence against him. 18 Yet, the issue of credibility “is a matter committed to the

m agist rate and is not reviewable on habeas corpus.” E scobedo, 623 F.2d at 1102 n.10 (citations

omitted); see also Quinn, 783 F.2d at 815 (“The credibility of witnesses and the weight to be

acco rded their testimony is solely within the province of the extradition magistrate.” (citat io n

omitted)); cf. Collins, 259 U.S. at 316, 42 S. Ct. at 472 (explaining that a petitioner can introduce

e vidence on probable cause, but cannot introduce evidence in defense, because otherwise t h e

extradition proceeding will become a full hearing and trial of the case); Eain v. Wilkes, 641 F.2d 504,

511 (7 th Cir. 1981) (“An accused in an extradition hearing has no right . . . to pose questi ons of

credibility as in an ordinary trial, but only to offer evidence which explains or clarifies that proof”

(citation omitted)); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir. 1973) (stating that credibility

conflict should await trial).

Ntakirutimana asserts that the credibility of the witnesses was not known to the investigators

or established by the Tribunal. According to Ntakirutimana, if the witnesses had ties to the Rwandan1 9 Ntakirutimana contends that eyewitness accounts of traumatic events are inherently unreliable,

and that the witnesses’ statements are undermined by “Rwanda’s oral tradition in which Rwandans adopt and confuse what they have seen with what they have been told by others and consider it their personal experience.” Ntakirutimana waived this argument by failing to raise it

below. See Lo Duca, 93 F.3d at 1111.

-14- government, then the witnesses would have been under pressure to incriminate persons about whom

they were questioned. The district court noted, however, that Ntakirutimana provided no specific

reason to doubt the credibility of the witnesses. The court stated that the wi tnesses’ statem ents

“enjoy se veral indicia of reliability,” such as the similarity of the witnesses’ statements. The court

resolved the credibility challenge in the Government’s favor. We defer to this conclusion regarding

the credibility of the witnesses. 19 See Escobedo, 623 F.2d at 1102 n.10.

Ntakirutimana raises the issue o f Mo st ert’s credibility, because the signature page of

Mostert’s first declaration was typed with a different computer than the fi rst twenty -four pages.

Ntakirutimana asserts that Mostert could have signed the signature page, and that, after Mostert’s

employment ended, the page could have been attached to any text. Thus, Ntakirutimana argues, all

of M o st ert’s declarations cannot be taken at face value. The district court rejected this credibility

challenge, finding that Mostert’s supplemental declaration, in which he avowed that the first

declaration was accurate and complete, answered this allegation. As explained previously, we will

not revisit this credibility finding. See Escobedo, 623 F.2d at 1102 n.10.

Nt akirutimana also challenges the probable cause determination on the ground that t he

translators were unreliable. The investigators conducted most of their interviews through translators

of English and French, the l anguages of the Tribunal. With the exception of one French-speaking

witness, the witnesses spoke Kinyarwanda, Rwanda’s native language. Ntakirutimana argues that

the transla t o rs were not certified or screened for competence or bias, that there was an enormous

potential for distortion by the unscreened interpreters, and that there was no way to gauge the

accuracy of the translations. The district court declined to address Ntakirutimana’s challenge to the

reliabilit y of the translations. The court st at ed that, as long as the evidence is authenticated in20 See supra note 13.

-15-

accordance with § 3190, 20 then it would not consider challenges to the reliability of the translation.

We agree with the district court that we can presu me that the transl ati ons are correct. S ee In re

Extradition of David, 395 F. Supp. 803, 806 (E.D. Ill. 1975) (“The Court feels that the translations

must be presumed to be correct unless David presents some convincing evidence otherwise.”). The

extradition court need not independently inquire into the accuracy of the translations submitted with

a formal extradition request, because “[s]uch a requirement would place an unbearable burden upon

extradition courts and seriously impair the extradition process.” T ang Yee-Chun v. Immundi, 686

F. Supp. 1004, 1009 (S.D.N.Y 1987). Hence, we decline to address Ntakirutimana’s speculations

regarding the reliability of the translations.

In short, the district court resolved the credibility challenges adversely to Ntakirutimana, and

we will not review those issues. We hold that, based on Mostert’s and Prosper’s declarations, there

is competent evidence in the record to support the district co urt ’s finding that the evidence

established probable cause to believe that Ntakirutimana committed the crimes charged.

V

Finally, we turn to Ntakirutimana’s remaining arguments. Ntakirutimana argues that the U.N.

Charter does not authorize the Security Council to establish the ICTR, and that the only method for

the U.N. to create an international criminal tribunal is by a multinational treaty

. This issue is beyond

the scope of habeas review. S ee Garcia-Guillern, 450 F.2d at 1191 (outlining three issues for habeas

review); cf. Terlinden, 184 U.S. at 289, 22 S. Ct. at 491-92 (stating that it would be impossible for

the Executive Department to conduct foreign relations if every court in the country was authorized

to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the

power, by its Constitution and laws, to make the engagements into which he entered). Ntakirutimana

contends additionally t hat t he ICTR is incapable of protecting his rights under the United States

Constitution and international law. He contends, for example, that the ICTR is incapable of

protecting his due process rights and that the ICTR denies the right to be represented by the counsel-16-

of one’s choice. Due to the limited scope of habeas review, we will not inquire into the procedures

that await Ntakirutimana. S ee Garcia-Guillern, 450 F.2d at 1192; Gallina v. Fraser, 278 F.2d 77,

79 (2d Cir. 1960) (regarding as significant that the procedures that will o ccur in the demanding

country are not listed within the scope of habeas review); see also In re Extradition of Manzi, 888

F.2d 204, 206 (1 st Cir. 1989) (explaining the rule of “non-inquiry”). “Such matters, so far as they may

be pertinent, are left to the State Department, which ultimately will determine whether the appellant

will be surrendered to the [ICTR].” Garcia-Guillern, 450 F.2d at 1192.

VI

For the foregoing reasons, we AFFIRM the order of the district court denying

Ntakirutimana’s petition for a writ of habeas corpus, and LIFT the stay of extradition.-17-

ROBERT M. PARKER, Circuit Judge, writing separately, special

concurrence.

Judge Garza has crafted for the panel a well-written opinion

that faithfully adheres to controlling jurisprudence, and thereby

has earned my concurrence. I write separately and briefly to

invite the Secretary to closely scrutinize the underlying

evidence as she makes her decision regarding whether

Ntakirutimana should be surrendered to the International Criminal

Tribunal for Rwanda. The evidence supporting the request is

highly suspect. Affidavits of unnamed Tutsi witnesses acquired

during interviews utilizing questionable interpreters in a

political environment that has all the earmarks of a campaign of

tribal retribution raises serious questions regarding the truth

of their content.

It defies logic, and thereby places in question the

credibility of the underlying evidence, that a man who has served

his church faithfully for many years, who has never been accused

of any law infraction, who has for his long life been a man of

peace, and who is married to a Tutsi would somehow suddenly

become a man of violence and commit the atrocities for which he

stands accused. I fully understand that the ultimate decision in

this case may well be a political one that is driven by important

considerations of State that transcend the question of guilt or

innocence of any single individual. I respect the political

process that necessarily is implicated in this case, just as I

respect the fact that adherence to precedent compels my

concurrence.-18-

To the extent that it may be relevant to the Secretary's

decision, I merely add, based on all the information in this

record, viewed from the perspective of a judge who has served

fifteen years on the trial bench and five years on the court of

appeals, that I am persuaded that it is more likely than not that

Ntakirutimana is actually innocent.-19-

HAROLD R. DeMOSS, Circuit Judge, dissenting:

Our Constitution is the result of a deliberate plan for the

separation of powers, designed to prevent both the arrogation of

authority and the potential for tyranny. Notwithstanding our

nation’s moral duty to assist the cause of international justice,

our nation’s actions taken in that regard must comport with the

Constitution’s procedures and with respect for its allocation of

powers. That is why we claim to be a nation ruled by law rather

than men.

The Attorney General’s litigation position in this case has

apparently been chosen for the purpose of validating a

constitutional shortcut which would bypass the Treaty Clause.

She stakes her case on the validity and enforceability of a

warrant issued by the United Nations International Criminal

Tribunal for Rwanda, which is a nonsovereign entity created by

the United Nations Security Council, purporting to “DIRECT” the

officials of our sovereign nation to surrender the accused. In

defense of this, the Attorney General relies exclusively on what

my colleagues have termed a “Congressional-Executive Agreement” -

- the coincidence of an “executive agreement” with the Tribunal,

entered on behalf of the United States by an ambassador appointed

by the President in the course of his duties to conduct foreign

affairs, and a purported enabling act passed by simple majorities

of both houses of Congress and signed into law by the President.

A structural reading of the Constitution compels the

conclusion that most international agreements must be ratified-20-

according to the Treaty Clause of Article II. The history of

national and international practice indicate that extradition

agreements fall into this category. Our Founding Fathers

intended that the President have authority to negotiate such

agreements, but also that they be ratified pursuant to a special

process intended to set a higher standard of legislative

agreement than that required for ordinary legislation. The

Constitution thus provides a plain procedure for entering into a

treaty, which requires the assent of the President and two-thirds

of the Senate. That procedure was not followed with respect to

the executive agreement to extradite fugitives to the

International Criminal Tribunal for Rwanda, and the procedure is

not satisfied by the combination of an executive agreement and

ordinary legislation. For this reason, I respectfully dissent

from the majority’s conclusion that the Constitution permits the

extradition of Elizaphan Ntakirutimana based upon a foreign

warrant invoking an executive agreement and its implementing

statute.

I.

The Attorney General seeks to surrender Elizaphan

Ntakirutimana to the International Criminal Tribunal for Rwanda

based on three legal authorities. The first of these authorities

is an executive agreement, the “Agreement on Surrender of

Persons” between the United States and the Tribunal (hereinafter,21 See Agreement on Surrender of Persons Between the Government of the United States

and the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory Of Neighbouring States, Jan. 24, 1995, U.S.-ICTR, available in 1996 WL 165484.

22 Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 2, U.N. Doc. S/RES/955 (1994), available in ICTR - Resolutions of the Security Council (visited July 26, 1999) <http://www.un.org/ ictr/english/Resolutions/955e.htm >

.

-21- Surrender Agreement). 21 The Surrender Agreement was signed on

behalf of the United States by the American ambassador to The

Netherlands, and it purports to satisfy “the obligation of the

United States, pursuant to the Statute of the Tribunal adopted by

United Nations Security Council Resolution 955 . . . to surrender

accused or convicted persons to the Tribunal.” Surrender

Agreement, 1996 WL 165484, at *1. United Nations Security

Council Resolution 955 requires that “all States shall cooperate

fully with the International Tribunal and its organs in

accordance with the present resolution and the Statute of the

International Tribunal” and “all States shall take any measures

necessary under their domestic law to implement the provisions of

the present resolution and the Statute, including the obligation

of States to comply with requests for assistance or orders issued

by a Trial Chamber under Article 28 of the Statute.” 22

Accordingly, the Surrender Agreement provides that:

The United States agrees to surrender to the

Tribunal, pursuant to the provisions of this

Agreement and the Statute, persons, including

United States citizens, found in its territory

whom the Tribunal has charged with or found guilty

of a violation or violations within the competence

of the Tribunal as defined in the Statute.

Surrender Agreement, art. I, § 1, 1996 WL 165484, at *1.23 See S. 1026, 104th Cong. (1995); available in U.S. Gov’t Printing Office, GPO Access

(hereinafter, GPO Access ) (visited July 27, 1999) <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi? dbname=104_cong_bills&docid=f:s1124pcs.txt.pdf>; H.R. 1520, 104th Cong. (1995), available

in GPO Access (visited July 27, 1999) <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_ cong_bills&docid=f:h1530ih.txt.pdf>.

-22- The second authority is an act of Congress, the National

Defense Authorization Act for Fiscal Year 1996 (the Act), Pub. L.

No. 104-106, § 1342, 110 Stat. 186, 486. Section 1342 provides,

in pertinent part:

[T]he provisions of chapter 209 of title 18,

United States Code [18 U.S.C. § 3181 et seq.],

relating to the extradition of persons to a

foreign country pursuant to a treaty or convention

for extradition between the United States and a

foreign government, shall apply in the same manner

and extent to the surrender of persons, including

United States citizens, to . . . (B) the

International Tribunal for Rwanda, pursuant to the

Agreement Between the United States and the

International Tribunal for Rwanda.

Pub. L. No. 104-106, § 1342(a), 110 Stat. 186, 486 (1996),

reprinted in 28 U.S.C.A. § 3181 note at 214 (West Supp. 1999).

Section 1342(a) has a curious history. First, the provision

obviously bears no relation by subject matter to the general

theme of the Act in which it was enacted, which was matters

pertaining to the national defense. Predictably, then, no

language bearing any relation to this provision can be found in

the original bills proposed in the House of Representatives and

Senate for the 104th Congress. 23 The first suggestion about a

provision permitting extradition to the International Criminal

Tribunals came in the form of a floor amendment offered by

Senator Arlen Specter of Pennsylvania. The Specter Amendment,24 See 142 Cong. Rec. S11218 (daily ed. Aug. 2, 1995), available in GPO Access (visited

July 27, 1999) <http://frwebgate. access.gpo.gov/cgi-bin/getpage.cgi?dbname=1995_record&page=S11218&position=all>.

25 See 141 Cong. Rec. S10316 (daily ed., July 19, 1995), available in GPO Access (visited July 27, 1999) <http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=S10316&dbname=1995 _record> (noting referral to the Committee on the Judiciary of a “communication from the Assistant Attorney General, Office of Legislative Affairs, transmitting, a draft of proposed legislation to enable the United States to meet its obligations to surrender offenders and provide evidence to . . . the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of Humanitarian Law Committed in the Territory of Rwanda and Citizens Responsible for Genocide and other such Violations Committed in the Territory of Neighboring States”); 141 Cong. Rec. H7010 (daily ed., July 13, 1995), available in

GPO Access (visited July 27, 1999) <http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?position=all&page=H7009&dbname=1995_ record> (same).

26 See 141 Cong. Rec. S11422 (Aug. 4, 1995), available in GPO Access (visited July 27, 1999) <http://frwebgate.access.gpo. gov/cgi-bin/getpage.cgi?position=all&page=S11422&dbname=1995_ record>.

-23- No. 2081, supplied the language which was ultimately enacted as

§ 1342 of the Act. 24 Senator Specter indicated that this

amendment contained legislation which was being sought by the

President, 25 and with this assurance (and without further

discussion), the leadership of the Senate accepted the

amendment. 26 In conference, the House receded to the Specter

Amendment “with a technical amendment.” H.R. Conf. Rep. No. 104-

450 (1996), reprinted in 1996 U.S.C.C.A.N. 238, 391. Subsection

(a)(1) of the Specter Amendment (ultimately Pub. L. 104-106,

§ 1342(a)(1), the provision at issue in this appeal) was not

altered. The conference report was accepted by the Senate on a

56-34 vote and by the House of Representatives on a 287-129 vote.

Public Law 104-106 was subsequently signed by President Clinton,

and the Specter Amendment thereby got slipped into law through27 The jurisdiction of the Foreign Relations Committee includes, among other things,

“[r]elations of the United States with foreign nations generally” and “[t]reaties and executive agreements.” Sen. Foreign Relations Committee Rule 1(a), available in GPO Access (visited July 27, 1999) <http://www.access.gpo.gov/ congress/senate/srules11.txt>.

28 The jurisdiction of the Judiciary Committee includes, among other things, “[f]ederal courts and judges” and “[j]udicial proceedings, civil and criminal, generally.” U.S. Senate Judiciary

Comm., Jurisdiction (visited July 27, 1998) <http://www.senate. gov/~judiciary/jurisdic.htm>.

-24- the back door, without any public discussion or debate about its

substantive merits.

Although it relates to foreign relations and performs a

function historically performed by treaties, the Specter

Amendment (§ 1342) did not originate in the Senate Foreign

Relations Committee, 27 and no hearings or deliberations of any

sort were ever held by that committee on the subject of

extradition to the international criminal tribunals established

by the United Nations Security Council. Likewise, although

§ 1342 relates to extradition procedures in United States courts,

it was never considered by the Senate Judiciary Committee. 28

Most curiously, the provision does not purport to be an amendment

to the existing statutes on extradition and it was not codified.

It appears in the United States Code Annotated only as a

“statutory note” -- a literal afterthought. If the ratification

of an extradition agreement is a legislative function which our

Founding Fathers intended to be performed under the Treaty

Clause, the history of the passage of § 1342 stands in stark

contrast to that heightened legislative standard. It was a

parasite on the defense spending authorization bill, the ultimate

passage of which never could have been questioned. Like one of-25-

our B-2 stealth bombers, it slipped through the radar net of the

legislative process without the public awareness, debate, and

consideration normally given to legislation of this importance.

The third authority invoked by the Attorney General is a

warrant issued by the United Nations International Criminal

Tribunal for Rwanda, located in Arusha, Tanzania. The warrant

reads, in pertinent part: “I, Judge William H. Sekule, Judge of

the International Criminal Tribunal for Rwanda . . . HEREBY

DIRECT the Authorities of the United States of America to search

for, arrest and surrender to the International Criminal Tribunal

for Rwanda: Elizaphan Ntakirutimana . . . . [who is] currently

believed to be in the United States of America.” Prosecutor v.

Ntakirutimana , No. ICTR-96-17-1 (U.N.I.C.T.R. Sept. 7, 1996)

(warrant of arrest and order for surrender). The Tribunal is not

a sovereign nation.

II.

The “Congressional-Executive Agreement” method of ratifying

the Surrender Agreement with the Tribunal runs afoul of the

Constitution’s Treaty Clause, and § 1342 alone is

constitutionally insufficient to ratify the Surrender Agreement

which has been invoked to support the extradition.

A.

Article II, § 2 of the Constitution provides:

The President shall be Commander in Chief of

the Army and Navy of the United States, and of the-26- Militia of the several States, when called into

the actual Service of the United States; he may

require the Opinion, in writing, of the principal

Officer in each of the executive Departments, upon

any Subject relating to the Duties of their

respective Offices, and he shall have Power to

grant Reprieves and Pardons for Offenses against

the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice

and Consent of the Senate, to make Treaties,

provided two thirds of the Senators present

concur; and he shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls,

Judges of the supreme Court, and all other
Officers of the United States, whose Appointments

are not herein otherwise provided for, and which

shall be established by Law: but the Congress may

by Law vest the Appointment of such inferior

Officers, as they think proper, in the President

alone, in the Courts of Law, or in the Heads of

Departments.

The President shall have Power to fill up all

Vacancies that may happen during the Recess of

the Senate, by granting Commissions which shall

expire at the End of their next Session.

U.S. Const. art. II, § 2. The Congressional-Executive Agreement

did not conform to this procedure. Not only was ordinary

legislation passed in lieu of the Senate’s advice and consent,

but also the required threshold for passage in the Senate of

approval by two-thirds was not achieved.

The Constitution’s treaty procedure must be followed in

order to ratify an extradition agreement which contractually

binds our nation to respect obligations to another nation. The

intent of the framers could not be clearer on this point. Our

Founding Fathers were very concerned about the new nation

becoming entangled in foreign alliances. The possibility of

giving the President full authority for foreign affairs was-27-

considered and rejected. In The Federalist No. 75 , Alexander

Hamilton argued that it would be “utterly unsafe and improper” to

completely entrust foreign affairs to a President, who is elected

for only four years at a time. The Founders were especially

concerned with the possibility that, in the conduct of foreign

policy, American officials might become seduced by their foreign

counterparts or a President might actually betray the country.

Thus, while primary responsibility for foreign affairs was given

to the President, a significant restraint and “check” on the use

of the treaty power was created by requiring for treaties the

advice and consent of two-thirds of the Senate. See The

Federalist No. 69 (Alexander Hamilton) (noting that this “check”

is a major distinction between the presidency and England’s

monarchy, in which the king was “the sole and absolute

representative of the nation in all foreign transactions”). The

decision to require approval of two-thirds of Senators was

controversial and hotly debated, but it was ultimately decided

that sheer importance of the treaty power merited such a

treatment. Treaties cannot be accomplished by any means other

than the Article II treaty ratification procedure.

Of course, not all agreements with foreign countries require

the full Article II “treaty” treatment in order to be effective.

The Constitution implicitly recognizes a hierarchy of

arrangements with foreign countries, of which treaties are the

most sacrosanct. Compare U.S. Const. art. I, § 10, cl. 1 (“No

State shall enter into any Treaty, Alliance, or-28-

Confederation . . . .”), with U.S. Const. art. I, § 10, cl. 3

(“No State shall, without the Consent of Congress . . . enter

into any Agreement or Compact with another State, or with a

foreign Power . . . .”). The Attorney General’s primary argument

in defense of the enforceability of the extradition agreement

with the Tribunal follows this line of thought. She has argued,

and the majority echoes ( see Majority Op. at 7), that the

Constitution contains no explicit reference to extradition.

But the fact of the matter is that while the Constitution

has no provisions explicitly relating to extradition, it likewise

has no provisions explicitly relating to executive agreements.

It only mentions treaties. Our national government is one of

limited, enumerated powers. See, e.g.

, United States v. Lopez

,

514 U.S. 549, 551, 115 S. Ct. 1624, 1626 (1995) (quoting The

Federalist No. 45 (James Madison)); Marbury v. Madison , 5 U.S. (1

Cranch) 137, 176-77 (1803). All agree that the Surrender

Agreement is not a treaty. We are therefore left to read between

the lines to ascertain whether the President and Congress have

wrongfully attempted by ordinary legislative procedures, to

exercise a power governed by the Treaty Clause or whether some

source of power other than the Treaty Clause enables the

President and Congress to bind the country to the Surrender

Agreement.

Our inquiry is significantly informed by a demonstration of

what specific powers are encompassed by the Treaty Clause. “A

treaty is in its nature a contract between two nations, not a-29-

legislative act.” Foster v. Neilson , 27 U.S. (2 Pet.) 253, 314

(1829); see also Edye v. Robertson (Head Money Cases) , 112 U.S.

580, 598-99, 5 S. Ct. 247, 254 (1884). Alexander Hamilton

explained:

The power of making treaties . . . relates neither

to the execution of the subsisting laws, nor to

the enaction of new ones; and still less to an

exertion of the common strength. Its objects are

CONTRACTS with foreign nations, which have the

force of law, but derive it from the obligations

of good faith. They are not rules prescribed by

the sovereign to the subject, but agreements

between sovereign and sovereign.

The Federalist No. 75 . It is precisely the position of the

Attorney General that the Surrender Agreement is a valid contract

with a foreign authority and that it has the force of law. In

Alexander’s day, an agreement with those characteristics was

called a treaty.

If the Treaty Clause is to have any meaning there is some

variety of agreements which must be accomplished through the

formal Article II process. Otherwise, the heightened

consideration dictated by Article II could be avoided by the

President and a majority of Congress simply by substituting the

label of “executive agreement” for that of “treaty.” The Supreme

Court has recognized this principle:

Express power is given to the President, by

and with the advice and consent of the Senate, to

make treaties, provided two-thirds of the senators

present concur, and inasmuch as the power is

given, in general terms, without any description

of the objects intended to be embraced within its

scope, it must be assumed that the framers of the

Constitution intended that it should extend to all

those objects which in the intercourse of nations

had usually been regarded as the proper subjects29 The Attorney General cites only one historical example of such an extradition, but

explicitly refrains from opining as to whether that extradition was validly accomplished.

-30- of negotiation and treaty , if not inconsistent

with the nature of our government and the relation

between the States and the United States.

Holden v. Joy , 84 U.S. (17 Wall.) 211, 242-43 (1872) (emphasis

supplied).

Plainly, an extradition agreement is a type of agreement

historically found in a treaty and therefore governed by the

Treaty Clause. Extradition, which is defined as “the surrender

by one nation to another of an individual accused or convicted of

an offense outside of its own territory, and within the

territorial jurisdiction of the other, which, being competent to

try and to punish him, demands the surrender,” Terlinden v. Ames

,

184 U.S. 270, 289, 22 S. Ct. 484, 492 (1902), has usually been

regarded as the proper subject of negotiation and treaty.

Historically, the United States has not surrendered a person to a

foreign authority (excluding countries or territories controlled

by the United States) in the absence of a valid extradition

treaty. 29 Every extradition agreement ever entered into by the

United States (before the advent of the new Tribunals) has been

accomplished by treaty, including the Jay Treaty (1795) and the

Webster Ashburton Treaty (1842). The original extradition

statutes, enacted in 1848, required the existence of an

extradition treaty, and there was no exception until § 1342 was

passed to accommodate the Tribunals for Rwanda and the former

Yugoslavia. Furthermore, “the principles of international law-31-

recognize no right to extradition apart from treaty.” Factor v.

Laubenheimer , 290 U.S. 276, 287, 54 S. Ct. 191, 193 (1933).

The insistence on the use of the treaty power for certain

types of international agreements comports with the Founding

Fathers’ intention that the President not have unfettered

discretion to enter agreements with foreign nations. See The

Federalist No. 75 (Alexander Hamilton). Unless the Article II

procedure is insisted upon, the President can exercise such

plenary power simply by denominating his agreements as something

other than “treaties.” See Laurence H. Tribe, Taking Text and

Structure Seriously: Reflections on Free-form Method in

Constitutional Interpretation , 108 Harv. L. Rev. 1221, 1273 &

n.179 (1995); cf. Freytag v. Commissioner , 501 U.S. 868, 880, 111

S. Ct. 2631, 2639 (1991) (“Neither Congress nor the Executive can

agree to waive this structural protection [of the Appointments

Clause] . . . . The structural interests protected by the

Appointments Clause are not those of any one Branch of government

but of the entire Republic.”); Weiss v. United States , 510 U.S.

163, 189, 114 S. Ct. 752, 766 (1994) (Souter, J., concurring)

(same).

Notably, the United States has publicly declared to the

entire world that it can only enter into an extradition agreement

through a treaty. In its fifth reservation to the Convention on

the Prevention and Punishment of the Crime of Genocide, Dec. 9,

1948, 78 U.N.T.S. 277, the United States proclaimed to the

international diplomatic community that it "reserves the right to30 United States Reservations to the Convention on the Prevention and Punishment of the

Crime of Genocide (Nov. 25, 1988), available in United Nations, United Nations Treaty

Collection Web Site (visited July 27, 1999) <www.un.org/Depts/Treaty/final/ ts2/newfiles/part_boo/iv_boo/iv_1.html>.

-32- effect its participation in any such tribunal only by a treaty

entered into specifically for that purpose with the advice and

consent of the Senate.” 30 There is no treaty which has been

entered into “with the advice and consent of the Senate” which

authorizes the participation in the Tribunal by the United

States. This reservation clearly evidences the intent and

expectation of the United States that the only way its

participation in the Tribunal could take place was by a duly

negotiated and ratified treaty on that subject. A reading of the

Treaty Clause of the Constitution which permits the semantic

shenanigans suggested by the Attorney General is an insult to the

intricate structure of the Constitution, which seeks to avoid

tyranny and ensure democracy through a deliberate separation of

power and a delicate system of checks and balances. See, e.g.

,

Gregory v. Ashcroft , 501 U.S. 452, 458, 111 S. Ct. 2395, 2400

(1991); The Federalist No. 28 (Alexander Hamilton); The

Federalist No. 51 (James Madison). In contrast, § 1342(a) came

into being without hearings by any committee of the Congress,

without a committee report from any committee of Congress, and

without any debate on the floor of the Senate or the House of

Representatives as to the substance of its provision. I

therefore am compelled to conclude that Ntakirutimana may not be31 See Then v. Melendez , 92 F.3d 851, 853 (9th Cir. 1996) (“The advice and consent of the

Senate is a constitutional prerequisite to a valid treaty, and the executive branch does not have the power to extradite alleged criminals absent a valid extradition treaty.”) (dicta); Gouveia v. Vokes

, 800 F. Supp. 241 (E.D. Pa. 1992) (extradition must be authorized by a treaty).

-33- constitutionally surrendered because of the failure of the

executive and legislative branches to comply with Article II. 31

B.

The Attorney General and my colleagues in the majority place

great reliance on Valentine v. United States ex rel. Neidecker

,

299 U.S. 5, 57 S. Ct. 100 (1936), in which the Court stated: “It

cannot be doubted that the power to provide for extradition is a

national power; it pertains to the national government and not to

the states. But, albeit a national power, it is not confided to

the Executive in the absence of treaty or legislative provision.”

299 U.S. at 8, 57 S. Ct. at 102 (internal citation omitted).

Valentine was a case that did involve a treaty -- its stray

reference to “legislative provision” is pure dicta, and certainly

not a plain holding that extradition may be accomplished by the

President simply on the basis of congressional approval.

Likewise, in Terlinden v. Ames , 184 U.S. 270, 22 S. Ct. 484

(1902), in which the Court noted that “[i]n the United States,

the general opinion and practice have been that extradition

should be declined in the absence of a conventional or

legislative provision,” 184 U.S. at 289, 22 S. Ct. at 492, there

was also a valid extradition treaty, and the reference to a

“legislative provision” is again dicta.32 See Valentine , 299 U.S. at 17, 57 S. Ct. at 106; M. Cherif Bassiouni, International

Extradition: United States Law and Practice 67 (3d ed. 1996).

-34- The Attorney General insists that the President has the

power to unilaterally enter an extradition agreement with foreign

nations, the only distinction between that variety of agreement

and an Article II treaty being that only a treaty will impose

upon the President a duty to extradite. In defense of this

principle, the Attorney General points to Factor v. Laubenheimer

,

290 U.S. 276, 54 S. Ct. 191 (1933), which states:

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 had fled, and it has been

said that it is under a moral duty to do so, the

legal right to demand his extradition and the

correlative duty to surrender him to the demanding

country exist only when created by treaty.

290 U.S. at 286, 54 S. Ct. at 192 (internal citation omitted);

see also United States v. Rauscher

, 119 U.S. 407, 7 S. Ct. 234

(1886).

But these cases do not support the Attorney General’s

position. The quoted passage stands for the unremarkable

propositions that a sovereign nation can (and perhaps should), if

consistent with its own laws, surrender to another sovereign

nation one of the surrendering nation’s own citizens who is

accused of crimes by that other sovereign nation, but that no

such duty or legal obligation arises absent a treaty. Those

propositions do not mean that the President, acting unilaterally,

can enter non-binding executive agreements to extradite, 32 or

that Congress may ratify such an agreement. The Attorney General33 A recent news story made this point clear, reporting: “Federal prosecutors handling the

[Ntakirutimana] case say the United States has a valid contract with the United Nations to enforce resolutions of the U.N. Security Council.” U.S. Appeals Court to Hear Extradition Case of

Rw andan Pastor , AP, Mar. 11, 1999, available in LEXIS, News Library, Wires File.

34 It is not true, as has been suggested in the media, that “[i]f Mr. Ntakirutimana’s constitutional argument prevails, it will diminish the ability of the United States to cooperate in international war crimes prosecutions.” War Crimes and Extradition , Wash. Post, Apr. 10, 1999,

at A20, available in 1999 WL 2210242. All that is required for participation is conformance with the Constitution. If the President wishes to bind the United States to an agreement such as the Surrender Agreement, he must obtain the advice and consent of two-thirds of the Senate as provided in Article II.

-35- does not purport to act pursuant to some sort of sovereign power

to surrender Ntakirutimana; she has consciously premised her

argument on the validity and enforceability of the Surrender

Agreement. This is plain from the briefs filed in this Court. 33

Given that the Surrender Agreement is the authority invoked by

the Attorney General, it is the authority which we must consider.

III.

The executive and legislative branches of government

erroneously disregarded their obligation to respect the structure

provided by the Constitution when they purported to enter this

extradition agreement. 34 We should issue a writ of habeas

corpus, and Ntakirutimana should not be surrendered. The

extradition agreement in place between the United States and the

Tribunal is unenforceable, as it has not been properly ratified.

The agreement’s implementing legislation is unconstitutional

insofar as it purports to ratify the Surrender Agreement by a

means other than that prescribed by the Treaty Clause. The two

acts seek impermissibly to evade the mandatory constitutional35 Whether executive and legislative actions such as those giving rise to this case reflect, as

political commentator George Will has suggested, a disturbing trend of “dilution of American democracy,” I leave for others to judge. George Will, See You in Congress . . . , Wash. Post, May

20, 1999, at A29, available in 1999 WL 17003981 and Sacramento Post, Sacbee Voices - George Will(visited July 27, 1999) <http://www.sacbee.com/voices/national/

will/will_19990520.html>.

36 Ntakirutimana challenges the Tribunal itself as an ultra vires creation of the United Nations Security Council. His is not a novel argument -- the authority of the ad hoc Tribunals for Rwanda and the former Yugoslavia has been hotly debated in academia, see, e.g. , Tara Sapru, Comment, Into the Heart of Darkness: The Case Against the Foray of the Security Council Tribunal into the Rw andan

Crisis , 32 Tex. Int’l L.J. 329, 339 (1997), rejected by Rwanda’s neighbors who refuse to accept the ICTR’s process, and fully litigated in the Tribunal for the former Yugoslavia. To the extent that the viability of the Tribunal is a legitimate subject of foreign policy within the realm of the Executive, separation-of-powers concerns justify our Court in abstaining from the political question of the Tribunal’s authority. See Baker v. Carr , 369 U.S. 186, 210-11, 82 S. Ct. 691,
706 (1962); see generally 13 Charles Alan Wright et al., Federal Practice and Procedure § 3529 (2d ed. 1984).

-36- route for implementing such an agreement. 35 I therefore

respectfully dissent. 36