In LoBue v. Christopher 839 F. Supp. 65 (D.D.C. 1995) two plaintiffs filed a civil action in the District of Columbia seeking an injunction against their surrender and a declaratory judgment that 18 U.S.C. § 3184 is unconstitutional. The purported constitutional flaw lay in the ability of the Secretary of State to decline to surrender a fugitive whom the extradition judge had certified extraditable. The assignment of discretion to the Secretary of State, they argued, intruded on separation of powers and violated the Appointments Clause of the Constitution.
The district court agreed. It declared the statute unconstitutional and certified as a class all fugitives facing extradition and enjoined the surrender - though not any extradition proceedings - of any class member.
On the government's emergency application, the court of appeals stayed the class-wide injunction. Thereafter, it vacated the district court's declaratory judgment on jurisdictional grounds. The court of appeals held that a fugitive facing extradition in another district (in this case the N.D. of Ill.) could challenge the lawfulness of this extradition by way of a habeas petition in that district and not in a separate lawsuit against the Secretary of State in the District of Columbia. See LoBue v. Christopher, 82 F.3d 1081 (D.C. Cir. 1996). While the constitutional issue is still being argued by persons facing extradition, no decision adopts the rationale urged by the plaintiffs in that case. To the contrary, every extradition and habeas court since LoBue has rejected the argument. See, e.g., In re Extradition of Abu Marzook, 924 F. Supp. 565, (S.D.N.Y. 1996); Sutton v. Kimbrough, 905 F. Supp. 631 (E.D.MO. 1995); Matter of Extradition of Lang, 905 F. Supp. 1385 (C.D. Cal. 1995).
As those courts have variously noted, the extradition scheme is functionally equivalent to all other preliminary criminal proceedings. The extradition judge's certification that an extradition is supported by probable cause and is otherwise lawful is no different than a judge's issuance of a search or arrest warrant or a finding of probable cause at a preliminary hearing. In all these instances a judge makes a finding on legality and the Executive Branch thereafter exercises its discretion to determine whether to proceed to search, arrest, or prosecute. Courts have also noted that this executive discretion can only be exercised to a fugitive's benefit if the extraditing judge declines to certify extraditability. The government cannot proceed on that request.
The issue is not finally resolved, so it is possible that another judge in some future case may adopt the rationale of the district court in LoBue. However, the arguments in opposition to LoBue are compelling and have thus far persuaded every judge since LoBue to reject the LoBue analysis. If a LoBue motion is made in your extradition case, please inform the Office of International Affairs immediately.
[cited in JM 9-15.100]