Matter of Extradition of Marzook

Decision Date07 May 1996
Docket Number95 Civ. 9799 (KTD).,No. 95 Cr. Misc. 1,P. 16,95 Cr. Misc. 1
PartiesIn the Matter of the EXTRADITION OF Mousa Mohammed Abu MARZOOK. In the Matter of Dr. Mousa Abu MARZOOK, Petitioner, v. Warren CHRISTOPHER, as Secretary of State; Doris Meissner, as the Director of the Immigration and Naturalization Service; The United States Immigration and Naturalization Service; Carol D. Chasse, as Regional Director of the Immigration and Naturalization Service; R. Reish, as Warden of the Metropolitan Correctional Center; and The United States of America, Respondents.
CourtU.S. District Court — Southern District of New York



Stanley L. Cohen, New York City, Marc Van Der Hout, San Francisco, CA, for Petitioner.

Honorable Mary Jo White, United States Attorney, Southern District of New York, (Baruch Weiss, Robert Buehler, Assistant United States Attorneys, of counsel), New York City, Kenneth J. Harris, United States Department of Justice, Office of International Affairs, Washington, DC, for Respondents.


This is an extradition proceeding in which the Government of Israel seeks the extradition of Mousa Mohammed Abu Marzook ("Abu Marzook"), the admitted leader of the political wing of the Islamic Resistance Movement, known by its acronym "Hamas."1 According to Abu Marzook, Hamas seeks the establishment of a Palestinian identity and homeland, partly through a campaign of providing education, health care, and other social services, as well as political awareness of Palestinian issues. Admittedly, however, there is a "military wing" of Hamas, which engages in hostile activities in Israel. Israel alleges that the military wing of Hamas has engaged in a series of acts denominated as terrorist acts in Israel. Among these acts are the ones for which Israel seeks the extradition and trial of Abu Marzook.

Specifically, Israel charges Abu Marzook with crimes relating to the following ten incidents: (1) the bombing at a beach in Tel Aviv on July 28, 1990, which killed a Canadian tourist; (2) the stabbing deaths of three civilians working in a factory in Jaffa on December 14, 1990; (3) the January 1, 1992, shooting death of a civilian as he drove his car in Kfar Darom in Gaza; (4) the shooting death of a civilian as he drove his car in the Beit La'hiah region of Gaza on May 17, 1992; (5) the stabbing deaths of two civilians working at a packing plant in Sajaeya on June 25, 1992; (6) the gun-fire attack by three persons of a passenger bus in Jerusalem on July 1, 1993, in which two civilians were killed and others were injured; (7) the bombing of a passenger bus in Afula on April 6, 1994, which killed eight civilians and injured forty-six; (8) the bombing of a passenger bus in Hadera on April 13, 1994, which killed four civilians and injured twelve; (9) the machinegun attack in a pedestrian mall in Jerusalem on October 9, 1994, which killed one civilian and injured eighteen; and (10) the bombing of a bus in Tel Aviv on October 19, 1994, which killed twenty-two civilians and injured forty-six. Israel has charged Abu Marzook with the following crimes: murder, attempted murder, manslaughter, causing harm with aggravating intent, harm and wounding under aggravating circumstances, and conspiracy to commit a felony.

This court's responsibility in the proceeding is governed by Title 18, United States Code, Section 3184, and by the Convention on Extradition, Dec. 10, 1962, U.S.-Isr., 14 UST 1707, 18 UST 382 (the "Convention"). Articles I and II, inter alia, of the Convention describe the responsibility of the United States to extradite an accused:

Each Contracting Party agrees ... to deliver up persons found in its territory who have been charged with ... any of the offenses mentioned in Article II of the present convention committed within the territorial jurisdiction of the other....
Persons shall be delivered up according to the provisions of the present Convention for prosecution when they have been charged with ... any of the following offenses:
1. Murder.
2. Manslaughter.
3. Malicious wounding; inflicting grievous bodily harm.
. . . . .
Extradition shall also be granted for attempts to commit or conspiracy to commit any of the offenses mentioned in this Article provided such attempts or such conspiracy are punishable under the laws of both Parties by a term of imprisonment exceeding three years.2

Where, as here, Israel has issued a criminal complaint and requested the extradition of a person, Title 18, Section 3184 requires a hearing so that "the evidence of criminality may be heard and considered." 18 U.S.C. § 3184 (West Supp.1995). If, after a consideration of such evidence, I find that there is probable cause to believe that Abu Marzook is criminally liable for the charged crimes, I must certify that finding to the Secretary of State. 18 U.S.C. § 3184 (West Supp.1995); see also Austin v. Healey, 5 F.3d 598, 605 (2d Cir.1993); cert. denied, ___ U.S. ___, 114 S.Ct. 1192, 127 L.Ed.2d 542 (1994).

Petition for Habeas Corpus

Abu Marzook filed a petition for habeas corpus in November 1995. In his petition, he asserts that the statute governing the extradition procedure, 18 U.S.C. § 3184, is unconstitutional and that this court, therefore, lacks jurisdiction to hold the statutorily required evidentiary hearing. (Hab.Mem. at 42).3 He raised this issue again in his papers opposing the request for extradition.

Habeas review of extradition proceedings is generally deferred until after a finding of extraditability has been made. See Vardy v. United States, 529 F.2d 404, 406 (5th Cir.), cert. denied, 429 U.S. 978, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976); Cherry v. Warden, No. 95 Cr.Misc.P. 7 (LB), 1995 WL 598986, at *2 (S.D.N.Y. Oct. 11, 1995). However, a petition for writ of habeas corpus may be entertained earlier in unusual circumstances. In re Extradition of McMullen, 769 F.Supp. 1278, 1281 (S.D.N.Y.1991); aff'd in part and rev'd in part on other grounds, 989 F.2d 603, cert. denied, 510 U.S. 913, 114 S.Ct. 301, 126 L.Ed.2d 249 (1993). Abu Marzook argues that a lack of jurisdiction is sufficient "unusual circumstances" to warrant an earlier consideration of the petition. Because I find that this Court has jurisdiction to hold the extradition hearing, I deny Abu Marzook's petition for habeas corpus.

Abu Marzook presents two arguments against the constitutionality of Section 3184: (1) that a judicial determination of extraditability is neither final nor binding on the Executive Branch (Hab.Mem. at 50); and (2) that extradition decisions are subject to executive revision (Hab.Mem. at 53).4 Both arguments would more appropriately be combined and treated as a separation of powers argument, as was done by the court in Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995), vacated on jurisdictional grounds, 82 F.3d 1081 (D.C.Cir.1996) (vacating for lack of jurisdiction and ordering dismissal).5 The argument, as stated in Lobue, is this: "Executive Branch Review of an Extradition Judge's Legal Determinations Is Unconstitutional." Id. at 70.

In order to fully address this argument, the extradition process requires some exegesis. Extradition, which is a foreign affairs function, lies almost totally within the province of the Executive Branch and, in this case, is governed by the Convention on Extradition between the United States and Israel. Article V of the Convention states:

Extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found, ... to justify his committal for trial if the offense of which he is accused had been committed in that place....

Convention, Art. V (emphasis added).

The laws of the United States require that, to justify the committal of an accused for trial, there must be a finding of probable cause that an offense was committed and that the accused committed it. See Fed.Rule Crim.Proc. 5.1(a). Thus, Section 3184 of Title 18 requires the extradition judge to make a probable cause determination regarding the charged offenses. 18 U.S.C. § 3184;6 see Austin, 5 F.3d at 605 ("the evidence presented need only `support a reasonable belief that the respondent was guilty of the crimes charged.'"). If the extradition judge decides that the accused is extraditable, the judge must certify that finding to the Secretary of State. 18 U.S.C. § 3184. If the judge finds that the accused is not extraditable, the requesting country can again request extradition.

Abu Marzook asserts that Section 3184 violates the principle of separation of powers because the Secretary of State may disregard, or even disagree with a court's determination that a person is extraditable. Abu Marzook also states that the Secretary may seek to extradite a person numerous times despite each court's determination that the person is not extraditable. Because the determination of the extradition court has no res judicata effect, Abu Marzook argues, the Executive Branch is given impermissible power over decisions of the Judicial Branch.

I must reject Abu Marzook's reasoning, as it inverts the proper analysis for a separation of powers argument. Abu Marzook assumes that no judicial pronouncement may ever be rejected by the Executive Branch. However, as described below, a separation of powers analysis is not so cut and dry.

The separation of powers principle is based on the idea that "the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty." Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 659, 102 L.Ed.2d 714 (1989). However, as the Supreme Court has made clear, "the Framers did not require — and indeed rejected — the notion that the three Branches must be entirely separate and distinct." Id. Our system of government imposes overlapping responsibility upon the Branches. Id. at 381, 109 S.Ct. at 659. As Justice Jackson...

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