Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.
On the morning of December 6, 1963 two men confronted Emilio Martinez-Angosto at the factory where he worked. They identified themselves as agents of the Immigration and Naturalization Service [INS] and asked his name and for his papers. He gave his name, and informed the agents that his papers were at home. He was then taken to his home and there he produced a marriage certificate, the birth certificates of his children, and a Spanish seamen's card. The agents then took him to the INS offices where he was interviewed, with the aid of a Spanish interpreter, given lunch, confined to a room until the evening, then removed to the INS detention quarters and kept there for three days. On December 9, he was taken from these quarters by uniformed guards to the Office of Naval Intelligence and interviewed by a Naval Foreign Liaison Officer. At the conclusion of the interview, Martinez-Angosto was imprisoned in the Third Naval District Brig. Three days later he was interviewed again, this time by two naval officers. The custody was continued with a view of turning him over to the captain of a Spanish cruiser on December 27, to be returned to Spain.
Through the aid of his wife, his family priest, and the Legal Aid Society, on December 20 a petition for a writ of habeas corpus was filed in the Southern District of New York to test the legality of his detention. In a decision dated July 15, 1964 and reported at 232 F. Supp. 102, Judge Edelstein dismissed the petition*fn1 We reverse. The imprisonment of Martinez-Angosto constitutes a deprivation of liberty without due process of law in violation of the Fifth Amendment. His arrest and imprisonment by the INS agents were unlawful, and the Navy does not have the lawful authority to imprison him.
In 1903 the United States adhered to a Treaty of General Relations and Friendship with Spain, 33 Stat. 2105. Article XXIV*fn2 of that Treaty dealt with the return of naval deserters, and it resembled, in essential outline, provisions appearing in a great number of other treaties the United States had entered into with other nations during the nineteenth century, listed in Tucker v. Alexandroff, 183 U.S. 424, 430, 461, 22 S. Ct. 195, 198, 209, 46 L. Ed. 264, 267, 279 (1902); 5 Hackworth, Digest of International Law, 310 (1943). As the Treaty is presently binding on the United States, Treaties in Force, January 1, 1965, p. 174, n. 2, Spanish consular officers have the right to "cause to be arrested" and "cause to be returned to their own country" seamen forming part of the crew of ships of war who have deserted in one of the ports of the other. However, the consular officers were not given the power to arrest, to detain and to put on board those claimed as naval deserters; instead this power was reserved by the treaty to "competent national or local authorities." These authorities were entrusted with the responsibility and power to arrest and imprison a deserter, with a view to surrendering him to Spanish authorities for return to Spain. The exercise of this power was predicated on the following determinations by the "competent national or local authorities": (1) the individual sought by the Spanish authorities had deserted from a Spanish ship of war in a United States port; (2) the individual actually arrested and detained is the deserter sought; (3) this individual is not a citizen of the United States; and (4) this individual had not previously been arrested for the same cause and set at liberty because he had been detained for more than three months from the day of his arrest without the Spanish authorities having found an opportunity to send him home. These competent authorities also have the responsibility of setting the deserter free if his detention endures for more than three months without the Spanish authorities having found an opportunity to send him home. Although the treaty requires that these determinations be made by "competent national or local authorities," and that the arrest and detention be made by such authorities, it does not clothe any individuals or officers of the federal government, or state and municipal government, with the competence or lawful authority to do these things. It relies upon the internal laws of the United States to provide the lawful authority.
When the United States entered this Treaty with Spain, a federal law, Rev. Stat. § 5280 (1875)*fn3, originally enacted as the Act of March 2, 1829, 4 Stat. 359, as amended by the Act of February 24, 1855, 10 Stat. 614, existed, which authorized certain federal officers to enforce this treaty provision*fn4 Specifically, "any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power"*fn5 was clothed with the authority to issue warrants to cause the arrest of the individual sought as a deserter. These authorities were to make the above critical determinations, conduct "an examination" for those purposes, and, being satisfied that the conditions of the Treaty were satisfied, to detain the deserter pending his surrender to the foreign authorities.The Treaty with Spain provided that the deserter would be set at liberty and never to be arrested for the same cause if he were detained for more than three months without the Spanish authorities having found an opportunity to send him home; in Rev.Stat. § 5280 the period was two rather than three months. Because of this discrepancy the Treaty could be viewed, not as impliedly abrogating Rev.Stat. § 5280 as it applied to seamen deserting from Spanish ships, but perhaps modifying it as it so applied; cf. Cook v. United States, 288 U.S. 102, 118-119, 53 S. Ct. 305, 77 L. Ed. 641 (1933); 13 Ops.Atty.Gen. 354, 358 (1870).
In 1915 Congress enacted a Seamen's Act, 38 Stat. 1164, to "promote the welfare of American seamen in the merchant marine of the United States; to abolish arrest and imprisonment as a penalty for desertion and to secure the abrogation of treaty provisions in relation thereto; and to promote safety at sea." Section 16*fn6 of the Act "requested and directed" the President to terminate all deserting seamen treaty provisions in respect to merchant seamen; and section 17*fn7 repealed Rev.Stat. § 5280. It would have made more sense for Congress to repeal only so much of § 5280 as related to the arrest and imprisonment of deserters from merchant vessels, saving it for deserters from ships of war, because section 16 only directed the abrogation of treaty provisions dealing with deserters from merchant vessels. There is strong evidence in the legislative history that Congress only intended this pro tanto repeal of § 5280*fn8 But this evidence is not sufficient to overcome the unambiguous statutory language, compare Markham v. Cabell, 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 (1945), Cawley v. United States, 272 F.2d 443, 445 (2 Cir. 1959), and this language repeals § 5280 in toto. The practical consequences of this seeming overextended repeal of § 5280 were minimized by the actual response to the mandate of section 16. Within several years following the enactment of the Seamen's Act of 1915 all deserting seamen treaty provisions, except those with Spain and Greece, were terminated in respect to both merchant and naval seamen, although section 16 of the Act only called for the termination of such provisions in respect to merchant seamen. With Greece and Spain the response was more measured; and the relevant articles were abrogated only so far as they applied to merchant seamen. See generally, 5 Hackworth, Digest of International Law, 309-12 (1943); Treaties in Force, January 1, 1965, p. 79, n. 1, p. 174, n. 2; cf. Van Der Weyde v. Ocean Trans. Co., Ltd., 297 U.S. 114, 117, 56 S. Ct. 392, 80 L. Ed. 515 (1936).
The net outcome of these less than coordinated efforts of the executive and legislative branches was to leave Article XXIV of the 1903 Treaty with Spain binding on the United States insofar as it applied to deserters from ships of war, and, at the same time, to dismantle the domestic enforcement machinery previously established in Rev.Stat.§ 5280, which had been in existence for almost a century and which was presumably within the contemplation of those drafting Article XXIV. To this day, the void created by the repeal of § 5280 has not been filled with a similar general grant of authority, even though the Treaty relies upon the domestic law for the determination of which of its officers would be competent to arrest and imprison the alleged deserter and to make the determinations of law and fact requisite to his continued detention and surrender to the Spanish authorities.
In this instance, the Spanish authorities improvised and the American officers responded. What evolved, in an ad hoc fashion, was a network of cooperation between the INS and the Navy, which was not authorized in law and which, incidentally, would not even have satisfied the previously repealed Rev.Stat. § 5280. The commanding officer of the Spanish ship from which Martinez-Angosto allegedly deserted first notified the Commandant of the Fourth Naval District of the desertion. The Commandant notified the United States Naval Intelligence, and the information was relayed to the INS. This occurred in the last two months of 1960. Three years later, after receiving an anonymously furnished lead, INS agents questioned and then arrested Martinez-Angosto. After the arrest, he was interviewed by an INS "investigator," who, on the basis of this interview, and the papers Martinez-Angosto surrendered to the arresting agents, decided that Martinez-Angosto was the deserter sought. Martinez-Angosto was then imprisoned, and the Office of Naval Intelligence and the Spanish authorities were informed. The Spanish Consul General then wrote to Rear Admiral Redfield Mason, Commandant of the Third Naval District, informing him of Martinez-Angosto's detention by the INS. The 1903 Treaty was invoked; the letter stated that "the detained sailor" would be "sent back to Spain" on December 27, 1963 and concluded: "In the meantime, it would be appreciated if you could arrange for this sailor to be picked up at Immigration and transferred to your Navy Brig, where he is requested to be held until the date of his departure." The Navy immediately took custody of Martinez-Angosto. He was interviewed by a Naval Foreign Liaison Officer and three days later was interviewed again, this time by two liaison officers. These Naval officers were satisfied as to the prisoner's identity and his desertion, and that the 1903 Treaty was applicable, and filed reports to this effect several days later. Martinez-Angosto's imprisonment was continued in the Third Naval District Brig, with the view to surrendering him in several weeks to the Spanish authorities for return to Spain.
The Navy and the INS agents and investigator furnished all assistance for the pursuit, arrest and detention of the alleged deserter, but they were not "competent national or local authorities" for performing these acts nor for making the determinations of law and fact upon which this action must be predicated. There is no statute, nor even a Presidential authorization that gives the Navy any competence in these affairs. The INS is the enforcement agency of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101, and the limits of its authority were transgressed by arresting and imprisoning Martinez-Angosto under color of enforcing the 1903 Treaty. Section 287(a) (1) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a) (1), gives the INS agents authority to interrogate any "alien," and apparently Martinez-Angosto fell within the statutory definition of "alien," 8 U.S.C. § 1101(a) (3), even though the agents were attempting to enforce the Treaty rather than the Act. However, the INS agents had the authority to arrest and imprison an individual residing within the United States, as Martinez-Angosto clearly had been for the previous three years, only if this action were a prelude to deportation proceedings under section 242 of the Act, 8 U.S.C. § 1252. See 8 C.F.R. § 242.2. Martinez-Angosto was arrested without a warrant; and appellee seeks to justify that on the basis of section 287(a) (2), 8 U.S.C. § 1357(a) (2), which authorizes an INS agent to arrest an alien without an arrest warrant. But this authority is conditioned, at a minimum, upon a reasonable determination that the alien is likely to escape before an arrest warrant can be obtained, upon a prompt arraignment "before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States" (Section 287(a) (2), 8 U.S.C. § 1357(a) (2) ), and upon the initiation of Section 242 deportation proceedings if "the examining officer is satisfied that there is prima facie evidence establishing that the arrested alien is in the United States in violation of the immigration laws," 8 C.F.R. § 287.3. There was no risk of Martinez-Angosto escaping during the time needed to get a warrant, and more fundamentally this arrest was not made, nor was the confinement imposed with a view to enforcing the Immigration and Nationality Act by conducting Section 242 deportation proceedings. Instead Martinez-Angosto was turned over to the Navy; and Naval Foreign Liaison Officers assumed the ultimate responsibility of determining whether the Treaty applied and for returning him to the Spanish authorities*fn9
Neither the INS nor the Navy had the lawful authority to do what they did, and this defect was not cured by the fact that there was virtually no dispute as to Martinez-Angosto's identity and his desertion. The interview reports filed by the INS investigator and Naval Officers stated that Martinez-Angosto admitted the following account: He was born in Spain of Spanish parents and was conscripted into the Spanish Navy. An American naval ship brought him to the United States*fn10 as part of a crew to man a destroyer being transferred to Spain by the United States. Some weeks after the transfer took place and after the crew had manned the ship, which was in Philadelphia, Martinez-Angosto traveled to upstate New York with another sailor, with an intention to desert, and overstayed his shore leave. Within several months he moved to Brooklyn, New York, where he has worked as a general helper in a factory since June 1961 and where he was married, in August 1962, to an American citizen. Although there is some question as to whether Martinez-Angosto fully understood the situation he was in and whether he had an adequate opportunity to seek the assistance of counsel*fn11, the interview reports claim that he "freely" made those admissions to his investigators, and neither this claim nor the content of these alleged admissions has been contested in these proceedings. However, these admissions as to his identity and desertion are not sufficient to clothe either the INS or the Navy with the authority to arrest and imprison him.
Even though Martinez-Angosto admitted his identity and the fact of desertion, there were legal issues, which are not entirely free from difficulty, that had to be resolved in determining whether the 1903 Treaty was applicable to him. There is his claim, which there is no need to assess here, that his marriage entitled him to American citizenship, see section 319 of the Immigration and Nationality Act, 8 U.S.C. § 1430 (see also section 245, 8 U.S.C. § 1255), rendering the 1903 Treaty inapplicable to him since it explicitly excluded American citizens from its coverage. There is also the question, which we leave unresolved, whether Martinez-Angosto could be considered to "have deserted in one of the ports" of the United States within the meaning of the 1903 Treaty, in light of the stringent interpretation given those words in Medina-Fernandez v. Hartman, 260 F.2d 569 (9 Cir. 1958) and the claim that the desertion occurred in upstate New York, where Martinez-Angosto supposedly was when his shore leave expired. Further, there is also the problem of determining whether the Treaty would apply to a situation where the sailors had arrived in the United States on an American ship, not on a Spanish ship of war, and the ship of war had not yet been put in the active service of Spain, although the formal transfer of the ship to Spain had been completed several weeks before the alleged desertion and the Spanish crew had since then manned it. In other cases there may be a substantial factual controversy as to the identity and desertion of the individual sought by the Spanish authorities, and if the INS or Navy would be without lawful authority or legal competence to resolve that dispute, as it certainly would be, then it is difficult to see how the INS or Navy had lawful authority or legal competence to resolve the issues presented in Martinez-Angosto's case. But more fundamentally, even if an individual admitted all the facts required by the Treaty, and no legal issues were present in determining whether the Treaty was operative, this would not clothe the INS or the Navy with legal competence to execute the Treaty by arresting and imprisoning the individual. The constitutional guarantee of due process of law requires that all coercive action of federal officials be authorized in law, and this authority cannot be stitched out of an individual's admission of certain facts that would, according to a treaty, entitle "competent national or local authorities" to take such action. Competence to enforce that treaty must be conferred on the federal officials by law, and no such competence has been conferred on either the INS or Navy.
Appellee insists that there was "a rational basis" for the Spanish consul to seek the assistance of the Navy and for the Navy to oblige, since Martinez-Angosto came to the United States on an American naval vessel as part of the crew to man a destroyer that was to be turned over to Spain by the United States; and further, that "it was logical" for the INS investigators to imprison Martinez-Angosto, to notify the Navy, and to surrender him to the Navy once they had learned of his identity and status. The question is not, however, whether the conduct of the INS and Navy is understandable but whether it is lawful. The naturalness of the action does not compensate for the lack of authority. Appellee also insists that the agencies acted in accordance with their duty to uphold the laws of the United States, which, of course, includes it treaties. But since the Treaty only requires and permits "competent national or local authorities" to arrest and imprison deserters covered by the Treaty, it is difficult to see how either the Navy or INS personnel were obliged, not to mention authorized, because of their general duty to uphold the law of the United States, to take the action they did. The spectre of having every government official who takes an oath to uphold the laws of the United States competent, because of that oath, to arrest and imprison individuals claimed by Spanish authorities as deserters would indeed be alarming, to say the least.
Not surprisingly, the case law has been scant and unhelpful on the issue whether the Navy or the INS are "competent national or local authorities" to execute Article XXIV of the 1903 Treaty. We have been able to discover only two cases that deal with the deserting seamen provision of the Spanish treaty (see 49 Cong.Rec. 4566 (1913) (remarks of Senator Burton) commenting on the decline in actual practice of enforcing such provisions even by that time). In Medina-Fernandez v. Hartman, 260 F.2d 569 (9 Cir. 1958), the Spanish authorities employed the American Navy (with an assist from Mexican officials) to effectuate the return of the deserters; and in United States ex rel. Perez-Varella v. Esperdy, 285 F.2d 723 (2 Cir. 1960), cert. denied, 366 U.S. 925, 81 S. Ct. 1352, 6 L. Ed. 2d 384 (1961), the Spanish authorities, in revealing the fundamental ambiguity in the phrase "competent national or local authorities," turned to the INS. Our case emerges as a hybrid. Neither Medina-Fernandez nor Perez-Varella explicitly dealt with the specific question we have confronted, and upon ...