Delay in U.S. Extradition of Inocente Orlando Montano Morales to Spain for Trial in Murder of the Jesuit Priests in El Salvador

 

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”

International Law Issue

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.

No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.

The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”

Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)

Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:

  • One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
  • One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.

U.S. Legal Issues

 Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.

I leave these issues to the subsequent briefs of the parties.

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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).

Extradition Has Become a Hot Topic for the United States

Extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense.  In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[1]

That process is now a hot topic in the U.S. Most recently Turkey is pressing the U.S. to extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, to Turkey to face charges of being involved in the attempted coup in that country. Another pending request, this from Spain, seeks the U.S. extradition of Inocente Orlando Montano Morales, a former Salvadoran military officer living in the U.S., to face criminal charges involving the 1989 murders of Jesuit priests in El Salvador. Extradition also is one of the many unresolved issues in the process of normalizing U.S.-Cuba relations: will Cuba extradite certain U.S. fugitives and will the U.S. do likewise for certain Cuban fugitives.[2]

Therefore, a better understanding of international extradition is necessary to follow these developments. Such a primer can be found in a 2001 U.S. State Department report to Congress and a recent U.S. government brief in the previously mentioned Spanish case for extradition of the former Salvadoran military officer from the U.S.[3] Assuming those sources are fair summaries of the process, this post omits citations to statutes and cases other than  to note that extradition is the subject of 18 U.S. Code, Chapter 209.

U.S. Extradition Treaties

U.S. extradition practice is based almost entirely on individually negotiated bilateral treaties, which the U.S. brings into force following Senate advice and consent to ratification. The U.S. is currently a party to 109 such treaties.[4] While most of these treaties currently in force have been negotiated in the last 30-40 years, many of the treaties still in force are quite old, in some cases dating back to the 19th Century.

For many reasons, however, not every request for extradition results in a fugitive being delivered to the requesting country. Sometimes the requesting state doesn’t know where a fugitive is located and makes multiple contingency requests for provisional arrest and extradition. In other cases, fugitives learn they are being sought and flee or go into hiding. Even following a fugitive’s arrest, court proceedings and appeals can last a very long time and can be delayed by fugitives’ exercising all possible rights to challenge extradition.

In addition, most such treaties provide specific bases on which extraditions can be delayed or denied. The obligation to extradite under a bilateral extradition treaty is not absolute and protections are included in the treaty to accommodate both U.S. and foreign interests. While the exact terms of such treaties result from country-specific negotiations and thus vary somewhat among the treaties, there are the following typical types of qualifications on the obligation to extradite:

  • An almost universal treaty exception, known in international extradition law as the “non bis in idem” doctrine, is similar to the double jeopardy doctrine under U.S. domestic law. It provides that extradition will be denied when the person has already been either acquitted or convicted for the same offense in the country from which extradition is requested, or, in some instances, in a third country.
  • A similarly widely adopted exception is that extradition is not required where the crime at issue is a “political offense” (a term which can cover treason, sedition or other crime against the state without the elements of any ordinary crime, or which under U.S. law can cover ordinary crimes committed incidental to or in furtherance of a violent political uprising such as a war, revolution or rebellion, especially when such crimes do not target civilian victims) or a “military offense” (a crime subject to military law that is not criminalized under normal penal law).
  • U.S. treaties also typically provide that extradition may be denied if the request is found to be politically motivated. Some of our treaties provide that extradition may be denied if the request was made for the primary purpose of prosecuting or punishing the person sought on account of race, religion, nationality or political opinion.
  • Perhaps the highest profile exceptions to the obligation to extradite are bars or limitations in some countries on the extradition of their own nationals.   The U.S., however, makes no distinction between extraditing its own nationals and those of other countries and advocates that all countries adopt the U.S. policy due to the ease of flight and the increasingly transnational nature of crime.
  • Some U.S. treaties provide that if the offense for which surrender is sought is punishable by death under the laws in the country requesting extradition but not in the country holding the fugitive, extradition may be refused unless the requesting country provides assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Sometimes these provisions are included in the treaty at the insistence of our treaty partner, because many countries in Europe and elsewhere oppose the death penalty. Sometimes the U.S. insists on such provisions in order to retain sufficient flexibility to ensure that the U.S. is not obliged to surrender persons for execution for relatively less serious crimes.

Older U.S. treaties that were negotiated before the late 1970’s contained a list of offenses that would be covered. In newer U.S. treaties this list approach has been replaced by the concept of “dual criminality,” usually providing that offenses covered by the treaty include all those made punishable under the laws of both parties by imprisonment or other form of detention for more than one year, or by a more severe penalty (such as capital punishment). Such a formulation obviates the need to renegotiate the treaty to provide coverage for new offenses, strikingly exemplified by the currently evolving area of cyber-crime. Indeed, to avoid having the dual criminality analysis applied too narrowly, most treaties provide further guidance, including that an offense is extraditable whether or not the laws in the two countries place the offense within the same category or describe it by the same terminology. A major goal in the U.S. current ambitious treaty-negotiating program is to negotiate new, modern treaties that eliminate the “list” approach in favor of dual criminality treaties.

Other limitations on the obligation to extradite, which vary to some extent from treaty to treaty, would relate to requests for extradition for extraterritorial offenses where the two countries’ laws differ on the reach of jurisdiction over such crimes. In such cases, the U.S. seeks the greatest possible flexibility in our treaties to permit extradition for offenses that have taken place in whole or in part outside the territory of the requesting party.

U.S. Practice Regarding Foreign Government Requests for Extradition

The U.S. practice regarding foreign government requests for extradition involves the Department of State, the Department of Justice, a U.S. attorney, a U.S. district court and the Secretary of State.

  1. U.S. Department of State

The extradition process in the U.S. starts when the Department of State receives a request for extradition from a foreign country. That Department initially determines whether the request is governed by a treaty between the U.S. and that country, and if there is such a treaty and the request conforms to the treaty, that Department will prepare a declaration authenticating the request and send it to the U.S. Department of Justice’s Office of International Affairs.

  1. U.S. Department of Justice[5]

The Justice Department’s Office of International Affairs examines the foreign country’s request to determine if it contains all of the necessary information. If it does, the request is sent to the U.S. Attorney for the district where the subject of the request is located. Thereafter the Office’s attorneys will assist, as needed, the U.S. Attorney.

  1. U.S. Attorney

The U.S. Attorney then prepares and files a complaint with the local U.S. district court seeking a warrant for the individual’s arrest and certification that he or she may be extradited. The U.S. Attorney also files briefs and appears at any hearings in the district court in the case.

  1. U.S. District Court

The complaint, of course, is served upon the subject of the proceeding, who has a right to be represented by counsel and to contest the complaint.

The court then conducts a hearing to determine if there is probable cause that the subject has violated one or more of the criminal laws of the country seeking extradition. This is not a criminal trial, but like a preliminary hearing in a criminal case to determine if the evidence is sufficient to sustain the charge under the treaty’s provisions.

At such a hearing, the Federal Rules of Civil Procedure, Criminal Procedure and Evidence do not apply. Thus, the evidence may consist of hearsay and unsworn statements, and the judicial officer does not weigh conflicting evidence and make factual determinations. Instead the officer only decides whether there is competent evidence to support the belief that the individual has committed the charged offense under the other country’s laws.

At this hearing, the individual has no right to submit a defense to the charges or evidence that merely contradicts the other country’s proof or poses conflicts of credibility.

If the court finds after the hearing that (a) there is a criminal charge pending in the other country against the individual; (b) the offense underlying the charge is encompassed by the relevant treaty; (c) the individual is the person sought by the foreign government; (d) the evidence supports a finding that the crime for which the individual is sought was committed; (e) the evidence supports a finding that the individual committed the crime; and (f) the treaty has no other basis for denying extradition; then the court issues a certification that the individual is subject to extradition.

Such a certification may be challenged only by the individual’s filing a petition for a writ of habeas corpus to the same district court.[6]

If there is no petition or it is denied, the court sends the certification to the Secretary of State.

  1. U.S. Secretary of State[7]

Under U.S. statutes, the Secretary of State is the U.S. official responsible for determining whether to surrender a fugitive to a requesting state. In making this decision, the Secretary may consider issues properly raised before the extradition court or a habeas court as well as any humanitarian or other considerations for or against surrender, including whether surrender may violate the United States’ obligations under the Convention Against Torture. The Secretary also will consider any written materials submitted by the fugitive, his or her counsel, or other interested parties.

If the Secretary decides to extradite, the Secretary issues and serves a warrant for the extradition, and the individual is extradited to the other country.

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[1] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition;Memorandum in Support of Motion To Dismiss Application for Habeas Corpus at 2, Montano Morales v. Elks, No. 5-16-HC-2066-BO (E.D.N.C. April 26, 2016).

[2] Future posts will examine the requests from Spain and Turkey while an earlier post reviewed a district court’s issuance of the certification for extradition to Spain of the former Salvadoran military officer: Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?, dwkcommentaries.com (Feb. 6, 2016). Another post reviewed U.S. and Cuban extradition issues: Issues Regarding Cuba and U.S. Extradition of the Other’s Fugitives, dwkcommentaries.com (Feb. 24, 2015).

[3] See n.1.

[4] The U.S. currently has bilateral extradition treaties with 109 countries.

[5] Justice Dep’t, Office of International Affairs.

[6] A prior post erroneously stated that such a certification was subject to an ordinary appeal to the relevant U.S. court of appeals.

[7] State Dep’t, Extradition.