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1975, and July 11, 1975, respectively, for the extradition to Canada of persons who had been convicted in Canada of offenses extraditable under Article X of the Webster-Ashburton Treaty of 1842 (TS 119; 8 Stat. 572; 12 Bevans 82) and the Extradition Convention of 1889 (TS 139; 26 Stat. 1508; 12 Bevans 211). In one case the conviction had been for conspiracy to commit arson and for attempted arson, in the other case for armed robbery and possession of stolen property. The persons had thereafter escaped from custody and fled to the United States. In both cases extradition hearings were held in the United States, the persons were found extraditable by a Federal judge or magistrate, and the Office of the Legal Adviser of the Department of State, after reviewing the proceedings, confirmed the treaty obligation to extradite.

Dept. of State File Nos. P75 0150–1114 and No. P75 0150–1116.

Double Criminality

The Department of State informed the Embassy of the Federal Republic of Germany, in a note dated November 11, 1975, that it was not possible to comply with the Embassy's request for the provisional arrest for extradition to Germany of four foreign crewmen for the alleged murder on October 10, 1975, of four German officers on board the vessel Mimi on the high seas. The Department's note stated, in part:

The Department of State has carefully studied the facts of the case as developed by investigation, and the extradition treaty in force between the United States and the Federal Republic of Germany, and has determined that extradition is not possible in this case because of lack of dual criminality as required by Article I of the treaty. Although it appears that the Federal Republic of Germany would have jurisdiction by its internal law to prosecute fugitives for offenses committed against German citizens outside the territory of the Federal Republic of Germany, the United States under its law may prosecute for offenses committed outside its territory only if the offenses occurred within the special maritime and territorial jurisdiction of the United States as defined in section 7 of Title 18 of the United States Code. The United States has no jurisdiction to prosecute fugitives based upon United States citizenship of the victim of the offense.

Dept. of State File No. P75 0175-0032. The extradition treaty in force between the United States and the Federal Republic of Germany was signed July 12, 1930 (TS 836; 47 Stat. 1862; 8 Bevans 214; entered into force Apr. 26, 1931).

Plea Bargaining

In Geisser v. United States, 513 F.2d 862 (1975), the United States Court of Appeals for the Fifth Circuit was asked to rule on an appeal by the Government from the grant of a writ of habeas corpus by the District Court for the Southern District of Florida, which enjoined petitioner's extradition and ordered specific performance of a plea agreement. In its decision of May 25, 1975, the Appeals Court held that where the prosecution promised the petitioner that it would use its best efforts to see that she was paroled after serving three years of a seven-year sentence and that she would not be deported to France or Switzerland at that time, the prosecution at least had a duty to make a strong presentation to the Department of State as to what had been promised and the likely dangers to the petitioner if the Department executed an order extraditing her to Switzerland, and to advise the Parole Board of the bargain and the importance to the public interest of its being honored.

The petitioner, Josette Claire Bauer, was a Swiss national who had an uncompleted prison sentence outstanding against her in Switzerland for the murder of her father. She was arrested in Miami in 1967 when she and an accomplice, Willy Lambert, attempted to smuggle 28 pounds of heroin into the country aboard a ship. It was the largest heroin seizure ever made in the United States up to that time. The two were suspected of being part of a large Corsican-French drug chain. They agreed to volunteer all their knowledge of the drug conspiracy and to testify against their superiors in the drug ring. In return, the Government allowed them to plead guilty to a two-count indictment that carried a maximum sentence of seven years. Their confinement, however, would last only three years, after which they would be paroled.

When the traffic manager of the ring was caught, Lambert and Bauer balked at testifying because of their intense fear of reprisals. The Government attorneys thereupon promised that, if they would testify, the Government would "use its best efforts" to get them deported to a country other than France or Switzerland. The ability to fulfill the promise was complicated by ancillary extradition proceedings brought against Bauer by the Swiss Government before Judge Atkins in the Southern District of Florida. An order certifying the extraditability of Bauer was granted November 2, 1967, without Judge Atkins having any apparent awareness that Bauer was involved in plea negotiations with the Government.

Bauer and Lambert kept their bargain and testified against the traffic manager, who was convicted and sentenced to 20 years in prison. Bauer escaped from prison in 1969 but was captured two years later. On her return to prison, the Department of Justice expressly disavowed the agreement and her parole was denied.

Bauer filed a petition in the U.S. District Court for the Southern District of Florida for a writ of habeas corpus, seeking to enforce the plea agreement and enjoin the extradition order. The District Judge, after an extensive hearing, set aside and enjoined the execution of the extradition order. He directed that if it was determined that she should be deported, it would only be to an "acceptable" country-not to France, Switzerland, or the possessions of either. The Government appealed.

The Court of Appeals said it saw nothing in the record to indicate that the State Department was aware of the plea bargain or that, once informed of it and its breach, the Secretary of State would take the step which would at once “accomplish deportation and violate the constitutional rights of the petitioner,” nor was there any evidence of a proper presentation to the Parole Board. Under the rule of Santobello v. New York, 404 U.S. 257 (1971), the Court held that the Department of Justice at least had a duty to make a strong presentation of the facts to both the State Department and the Parole Board. Under principles analogous to the doctrine of primary jurisdiction, it vacated the District Court's judgment and remanded the case, so that the District Court could determine what the Parole Board would have done had it known of the plea agreement, what the Parole Board would do knowing of the agreement, and what the Secretary of State would do regarding petitioner's extradition in light of the plea agreement.

It rejected the Government's contention that, because the extradition order had not been issued due to petitioner's continued imprisonment on prior sentences, the habeas action was premature; it said the petitioner was harmed if there was any likelihood of failure of the Government to keep its promise.

To the Government's argument that the District Court judgment should be vacated for petitioner's failure to join the Confederation of Switzerland as an indispensable party under Federal Rules of Civil Procedure, rule 19(a), 28 U.S.C., the Court of Appeals said that raising this issue for the first time on appeal was itself a factor to be evaluated. Further, it held that the rule requiring joinder of indispensable parties was not applicable to habeas corpus proceedings, at least where the party which the Government sought to join was a foreign government which asserted an interest in custody of the petitioner. The Court concluded by saying:

under the solution we mandate there may not even be any judicial order required to carry out the bargain. If Switzerland feels aggrieved at such a possible executive political resolution, its avenues of redress would more likely be through diplomatic means or in international tribunals.

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Ambassador John Scali, United States Representative to the United Nations, in an address in Washington, D.C. on March 6, 1975, referred to "an important new human rights policy which the United States has adopted" toward United Nations activities in the field of human rights. He expressed, in particular, new support for United Nations conventions, as yet unratified by the United States. Excerpts from Ambassador Scali's address follow:

In the early days of the United Nations the United States took a strong lead in drafting the two conventions which would give the force of international law to the freedoms set out in the Universal Declaration of Human Rights. Then, in 1951, we announced that we would not sign either of these treaties. That same year we did sign an International Convention against the crime of genocide, only to let it languish unratified for the past

24 years.

.. the United Nations can do more to promote human rights and ... the United States should play a leading role in stimulating its efforts. Other United Nations members will always remain hesitant to permit international review of their conduct and to bind themselves to higher standards unless we commit ourselves to the same goal. To give visible proof of our commitment, I would urge that the current session of the Senate consider action on the 24-year-old Convention on the Prevention of Genocide, as 77 other nations have done before us. I suggest further that we reexamine the other human rights covenants, such as that protecting civil and political rights and the 1969 international treaty against racial discrimination.

Press Release USUN-17(75), March 5, 1975.

Secretary of State Henry A. Kissinger, in an address at Minneapolis on July 15, 1975, stated that the following principles would guide United States action in the human rights field:

-Human rights are a legitimate international concern and have been so defined in international agreements for more than a generation.

-The United States will speak up for human rights in appropriate international forums and in exchanges with other governments.

-We will be mindful of the limits of our reach; we will be conscious of the difference between public postures that satisfy our self-esteem and policies that bring positive results.

-We will not lose sight of either the requirements of global security or what we stand for as a nation.

In the context of human rights, the Secretary also discussed the extent to which the United States is able to affect the internal policies of other governments and to what extent it was desirable. He said:

*

We do not and will not condone repressive practices. This is not only dictated by our values but is also a reflection of the reality that regimes which lack legitimacy or moral authority are inherently vulnerable. There will therefore be limits to the degree to which such regimes can be congenial partners. We have used, and we will use, our influence against repressive practices. Our traditions and our interests demand it.

But truth compels also a recognition of our limits. The question is whether we promote human rights more effectively by counsel and friendly relations where this serves our interest, or by confrontational propaganda and discriminatory legislation. And we must also assess the domestic performance of foreign governments in relation to their history and to the threats they face. We must have some understanding for the dilemmas of countries adjoining powerful, hostile, and irreconcilable totalitarian regimes.

Our alliances and political relationships serve mutual ends; they contribute to regional and world security, and thus support the broader welfare. They are not favors to other governments, but reflect a recognition of mutual interests. They should be withdrawn only when our interests change and not as a punishment for some act with which we do not agree. In many countries, whatever the internal structure, the populations are unified in seeking our protection against outside aggression. In many countries our foreign policy relationships have proved to be no obstacle to the forces of change. And in many countriesespecially in Asia-it is the process of American disengagement that has eroded the sense of security and created a perceived need for greater internal discipline, and at the same time diminished our ability to influence domestic practices.

The attempt to deal with those practices by restrictive American legislation raises a serious problem, not because of the moral view it expresses—which we share_but because of the mistaken impression it creates that our security ties are acts of charity. And beyond that, such acts-because they are too public, too inflexible, and too much a stimulus to nationalistic resentment -are almost inevitably doomed to fail.

Dept. of State Bulletin, Vol. LXXIII, No. 1884, Aug. 4, 1975, pp. 161–168.

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