The opinion of the court was delivered by: REENA RAGGI
By order dated March 29, 1994, Magistrate Judge John L. Caden certified to the Secretary of State that Timoteo Leite Hilario was extraditable to Portugal, a country from which he had fled in 1988 while serving a sentence for murder and attempted murder. Because certifications of extradition are not subject to direct appeal, Hilario pursues a writ of habeas corpus to challenge the magistrate judge's order. See Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 50 L. Ed. 2d 98, 97 S. Ct. 97 (1976); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.), cert. dismissed, 414 U.S. 884 (1973).
The focus of Hilario's challenge is narrow. He does not dispute this court's personal jurisdiction over him. Neither does he challenge the effectiveness of the Extradition Convention of 1908 between the United States and Portugal ("the Convention"). See Extradition Convention and Exchange of Notes Concerning the Death Penalty, May 7, 1908, U.S.-Port., 35 Stat. 2071. He concedes that the crimes of murder and attempted murder are covered by this Convention and he cites no deficiency in the evidence produced by Portugal to establish his conviction for such crimes. His single challenge to extradition is that the Secretary of State lacks legal authority to surrender him to Portugal because he is a United States citizen.
1. Hilario's Murder Conviction in Portugal
In late 1982, while in Boticas, Portugal, Timoteo Leite Hilario quarrelled with his seventeen-year old son, Antonio. The boy left his father's home and took up residence nearby with his paternal grandmother. On January 3, 1993, petitioner, in the presence of his mother and brothers, confronted his son and ordered him to return home. When the son refused, petitioner began shooting, killing his brother Jaime, and injuring both his son and brother Ramiro.
On December 7, 1983, petitioner was convicted in the Judicial Court of Boticas of one count of murder and two counts of attempted murder. He was sentenced to a fourteen-year term of incarceration. On intermediate appeal, petitioner's conviction was affirmed, but his sentence was increased to sixteen years. In 1984, Portugal's Supreme Court of Justice also affirmed the conviction, but suspended two years of the sixteen-year sentence.
2. Petitioner's Flight from Portugal and Arrest in the United States
On August 13, 1988, Portuguese authorities granted Hilario a furlough from prison. While on furlough, petitioner apparently fled Portugal. Some time thereafter, he entered the United States, where he had become a citizen in 1977.
In July 1993, federal authorities learned that Hilario was being detained in Nassau County, New York on unspecified state charges. After communicating with Portuguese officials, the United States, on July 15, 1993, sought and obtained a provisional warrant for Hilario's arrest in anticipation of extradition. See 18 U.S.C. § 3184 (Supp. 1994). Hilario was arrested on this warrant on August 24, 1993, and has been in federal custody since that time.
3. The Magistrate Judge's Certification of Extradition
On November 4, 1993, the United States filed with Magistrate Judge Caden the certified submissions of Portugal in support of the request for Hilario's extradition. Hilario did not challenge the adequacy of the filing. But he did urge dismissal of the extradition complaint on the grounds that, as a United States citizen, he could not be extradited to Portugal. Specifically, Hilario argued: (1) that the Convention does not authorize the surrender of United States citizens to Portugal; (2) that such authority can only be conferred by treaty; (3) that Congress's attempt to confer such power to the Secretary of State in 18 U.S.C. § 3196 is unconstitutional; and (4) that even if § 3196 were constitutional, it should not apply to criminal conduct, such as petitioner's, that predates its enactment. Although petitioner's first point is undisputed, Magistrate Judge Caden rejected his other arguments. Accordingly, on March 29, 1994, Magistrate Judge Caden certified Hilario's extraditability to the Secretary of State. See 18 U.S.C. § 3184.
I. The Constitutionality of 18 U.S.C. § 3196
The power to provide for extradition unquestionably belongs to the federal government. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8, 81 L. Ed. 5, 57 S. Ct. 100 (1936). But the exercise of such sovereign power "must finds its sanction in our law." Id. Because the Constitution does not itself vest authority in any government department "'to seize a fugitive criminal and surrender him to a foreign power,'" id. at 9 (quoting 1 John Basset Moore, Moore on Extradition 21), a court must look elsewhere for evidence of legal empowerment to extradite. The government submits that 18 U.S.C. § 3196 statutorily empowers the Secretary of State to extradite petitioner in this case. Hilario challenges the constitutionality of this statute. He insists that the power to extradite can only be conferred by treaty. This court disagrees.
No one disputes petitioner's contention that the Extradition Convention between the United States and Portugal does not itself confer power on any government official to extradite American citizens to Portugal. This conclusion is, in fact, mandated by the Supreme Court's decision in Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 81 L. Ed. 5, 57 S. Ct. 100 (1936). A preliminary review of the Convention and the Valentine holding is useful to this court's assessment of petitioner's challenge.
Article I of the Convention provides for the reciprocal surrender of persons charged with or convicted of specified crimes in either the United States or Portugal. It states:
It is agreed that the Government of the United States of America and the Government of His Most Faithful Majesty the King of Portugal and of the Algarves shall, upon mutual requisition duly made as herein provided, deliver up to justice any person who may be charged with or may have been convicted of any of the crimes specified in Article II of this Convention committed within the jurisdiction of one of the Contracting Parties while said person was actually within such jurisdiction when the crime was committed, and who shall seek an asylum or shall be found within the territories of the other, provided that such surrender shall take place only upon such evidence of criminality, as according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had been there committed.
This broad mutual obligation is, however, significantly modified by Article VIII:
Under the stipulations of this Convention, neither of the Contracting Parties shall be bound to deliver up its own citizens or subjects.
Such citizen exception clauses are not unusual. Virtually identical ones are to be found in thirty-three other extradition treaties signed by the United States. Gouveia v. Vokes, 800 F. Supp. 241, 244 (E.D. Pa. 1992).
One of these other treaties -- between the United States and France -- was the focus of Supreme Court attention in Valentine. At issue was the power of the United States to extradite American citizens when such surrender was not required by treaty. The government in Valentine argued that the executive branch was implicitly empowered to extradite American citizens to France because the citizen exception clause reserved to each sovereign the discretion to surrender its own nationals. The Supreme Court was unpersuaded. Certainly, if a treaty obliged the United States to surrender all persons who came within its terms, then a court could assume that ratification of the treaty necessarily conveyed the power to meet that obligation, even as to United States citizens. Valentine v. United States ex rel. Neidecker, 299 U.S. at 7; see Charlton v. Kelly, 229 U.S. 447, 467-68, 475-76, 57 L. Ed. 1274, 33 S. Ct. 945 (1913) (where treaty provides for extradition of "all persons," the United States is obliged to surrender its own nationals even if other country refuses to do so). But a treaty exception clause "denying an obligation" to surrender nationals could not fairly be translated into "a grant of power" to surrender citizens "in the discretion of the Executive." Valentine v. United States ex rel. Neidecker, 299 U.S. at 10. Thus, the Supreme Court ruled that an express "treaty or legislative provision" conferring such power was required. Id. at 8.
The decision in Valentine was influenced by the fact that the United States had begun to include empowerment language in certain treaties with citizen exception clauses. For example, the 1886 extradition treaty between the United States and Japan, while providing that "neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention," continued by noting "but they shall have the power to deliver them up if in their discretion it be deemed proper to do so," Id. at 12. Since Valentine, virtually every extradition treaty entered into by the United States reserving discretion as to the extradition of nationals has included similar language ensuring domestic empowerment. See Section-by-Section Analysis of the National Drug Control Strategy Implementation Act of 1990, 136 Cong. Rec. S6598 (daily ed. May 18, 1990).
B. The Enactment of 18 U.S.C. § 3196
It was not until 1990, over fifty years after the Valentine ruling, that Congress focused its attention on those treaties, such as the Convention with Portugal, that lacked any language empowering the executive branch to extradite United States citizens. Section 11 of the International Narcotics Control Act of 1990 (originally introduced as the National Drug Control Strategy Implementation Act of 1990) sought to cure the empowerment problem through a single piece of legislation. Now codified at 18 U.S.C. § 3196, the relevant law provides:
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.
Despite the plain language of § 3196, Hilario insists that the Secretary of State is without Power to extradite him. He asserts that the statute is an unconstitutional "attempt to override a treaty." (Petitioner's Mem. at 4.) He submits that just as a treaty can only be made by the President with the advice and consent of two-thirds of the Senate, U.S. Const., art. II, § 2, cl. 2, so a treaty can only be amended by the same constitutional process. The fatal flaw in petitioner's ...