Azra Bašic v. Timothy Steck

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0090p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AZRA BAŠIĆ, ┐
Petitioner-Appellant, │
│
│
v. │
> No. 15-5780
│
TIMOTHY STECK, Acting United States Marshal, │
Eastern District of Kentucky, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:12-cv-00274—Karen K. Caldwell, Chief District Judge.
Argued: March 16, 2016
Decided and Filed: April 14, 2016
Before: BATCHELDER and WHITE, Circuit Judges; LIPMAN, District Judge.*
_________________
COUNSEL
ARGUED: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, KY, for Appellant. David
M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, KY, for
Appellant. David M. Lieberman, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., Charles P. Wisdom, UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee.
*
The Honorable Sheryl H. Lipman, United States District Judge for the Western District of Tennessee,
sitting by designation.
1
No. 15-5780 Bašić v. Steck Page 2
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Azra Bašić is a Balkan native who came to
the United States in 1994 as a refugee to escape the vicious civil war that was tearing apart
Yugoslavia in the 1990s. She eventually settled in Kentucky and became a naturalized United
States citizen. She now stands accused in Bosnia and Herzegovina (Bosnia), one of
Yugoslavia’s successor states, of crimes committed against ethnic Serbs during the war while
Bašić was a member of the Croatian army. Bosnia—specifically the 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.
The Department of State filed a Complaint for Extradition in 2011. The complaint was
assigned to a United States Magistrate Judge, who certified it after concluding that Bašić was
extraditable under a 1902 extradition treaty between the United States and the Kingdom of
Serbia. See Treaty for the Mutual Extradition of Fugitives from Justice, U.S.-Serb., Oct. 25,
1901, 32 Stat. 1890 [hereinafter Treaty].1
Direct appeal is not available in extradition proceedings, see Collins v. Miller, 252 U.S.
364, 369 (1920), so Bašić filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241.
The district court denied the petition, and Bašić filed this timely appeal. She raises two
arguments: she contends, first, that the Treaty prohibits extradition of U.S. citizens to Bosnia,
and second, that the Bosnian government failed to produce a warrant for Bašić’s arrest as
required by the Treaty. We consider each in turn.
I. Extradition of U.S. Citizens
Under the Treaty, each country has a general obligation to honor extradition requests,
Treaty, supra at 2, Art. II, but neither country “shall be bound to deliver up its own citizens,” id.,
Art. V. According to Bašić, this provision erects an absolute bar on the extradition of U.S.
1
On appeal, the parties agree that the 1902 Treaty applies to this case since Bosnia is a successor state of
the Kingdom of Serbia.
No. 15-5780 Bašić v. Steck Page 3
citizens to Bosnia that can be removed only by the ratification of a new treaty. This is as
untenable as it sounds, but we nevertheless provide some analysis.
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 (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. 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. 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. 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.
Bašić contends that this statute is an unconstitutional attempt by Congress to circumvent the
treaty-making requirements of Article II, but her argument is premised on the faulty assumption
that § 3196 conflicts with the Treaty. It does not.
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
No. 15-5780 Bašić v. Steck Page 4
conferring an independent power” on the executive. 299 U.S. at 18; accord Munaf v. Geren,
553 U.S. 674, 704 (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 terms of a treaty.’”
(quoting Valentine, 299 U.S. at 9)).
There is no merit to Bašić’s contention 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[.’]” Nor is she correct 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[.’]” Reply Br. at 2 (citations
omitted; ellipsis in original). 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 (internal quotation marks, citations, and footnote omitted).2
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). 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
2
An interesting question, not raised in this case, is what limitations (if any) Article I of the Constitution
places on Congress’ authority “to provide for extradition independent of a treaty.”
3
For this reason, Bašić’s reliance on Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003), and
United States v. Palestine Liberation Organization, 695 F. Supp. 1456, 1468 (S.D.N.Y. 1988), is misplaced. These
No. 15-5780 Bašić v. Steck Page 5
empowered to extradite U.S. citizens to Bosnia, provided that the Treaty’s other requirements are
met.
II. Warrant Requirement
Bašić has a more plausible argument with respect to the Treaty’s warrant requirement.
Under the Treaty, when a nation seeks the extradition of a person who is not a convict but who
has been charged with a crime, it must provide “a duly authenticated copy of the warrant of
arrest in the country where the crime has been committed.” Treaty, supra at 2, Art. III.
Nothing in the record bears the title “Warrant of Arrest.” Instead, Bosnia submitted an
October 19, 2006 decision from a Bosnian Court that includes what appears to be a finding of
probable cause and an order that Bašić be detained. Bosnia also submitted a document from a
Bosnian Prosecutor’s office, dated July 9, 2007, which states that the office was investigating
Bašić “due to a reasonable doubt that” she committed war crimes, that she had been recently
sighted in Bosnia, that there was an outstanding “Decision on order for detention,” (i.e., the 2006
court order), and that “it [wa]s necessary to arrest [Bašić] . . . in accordance with the Decision on
order for detention and Order for issuing international arrest warrant.”
Bašić contends that the 2007 document proves that there is an arrest warrant in this
case—the “international arrest warrant”—and that extradition is impermissible because that
warrant is not in the record. This enthymeme does not bear up under scrutiny: the unstated
premise—that there may be only one arrest warrant—is false.4 And, more importantly, the
documents in the record do, in fact, constitute a valid arrest warrant under Bosnian law.
The Criminal Procedure Code of Bosnia and Herzegovina sets out a two-step process for
the issuance of an arrest warrant. The first step takes place in a court:
(1) Issuance of a warrant may be ordered if the suspect or the accused
against whom criminal proceedings have been instigated due to a
criminal offense for which it is possible to pronounce a prison sentence
cases, Bašić contends, support her argument that § 3196 does not authorize her extradition because Congress did not
intend to amend the Treaty. But her argument assumes that § 3196 conflicts with the Treaty, and it does not.
4
Whether the international arrest warrant would satisfy the Treaty’s warrant requirement is a question that
we do not reach.
No. 15-5780 Bašić v. Steck Page 6
of three (3) years or more is on the run, and an order for his
apprehension or a decision specifying his detention has been issued.
(2) Issuance of a warrant shall be ordered by the Court. . . . [And] shall be
submitted to the police authorities for the purpose of its execution.
Crim. P. Code, Art. 443 (Bosn. & Herz.), available at
http://www.tuzilastvobih.gov.ba/?opcija=sadrzaj&kat=4&id=40&jezik=e. The second step is the
actual issuance of the warrant by the “responsible police body designated by the Court.” Id., Art.
446. The district court order and the subsequent directive from the Bosnian Prosecutor’s office
satisfy both steps, respectively. These documents, moreover, include the elements of an arrest
warrant: a probable cause finding by a neutral magistrate and a direction that “a law-enforcement
officer . . . arrest and take a person into custody.” Black’s Law Dictionary 1818–19 (10th ed.
2014).
Further, a 2011 document, included in the record, from the “Ministry of Justice of BiH
Sarajevo,” explains that the 2007 “Directive to . . . find and arrest Basic,” which was issued “in
accordance with the Order of the District Court .. . dated October 19, 2006, for detention and
issuance of an international arrest warrant” is “‘the Arrest Warrant’ in this matter.”5 We will not
second guess this determination. See Grin v. Shine, 187 U.S. 181, 185 (1902). Indeed, we see
no reason why warrants must use the word “warrant” any more than contracts must say
“contract.” We therefore hold that the documents in the record constitute “a duly authenticated
copy of the warrant of arrest,” as required by the Treaty.
III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment denying Bašić’s habeas
corpus petition.
5
Documents in a similar extradition case, In re Extradition of Nezirovic, are consistent with this. 2013 WL
5202420 (W.D. Va. Sept. 16, 2013). The record in that case included a similar court order, which Bosnian
authorities described as “simply a procedural step” prior to the issuance of the warrant. 7:12-MC-39 (W.D. Va.),
Doc. 18-4 at PageID# 114–15; see also id. Doc. 8-2 at Page ID# 22.