United States v. Fitzpatrick

• Decision Date: 16 January 1963
• Parties: UNITED STATES of America ex rel. Roberto Santiesteban CASANOVA, Relator, v. Walter W. FITZPATRICK, Warden, Federal Detention Headquarters, Respondent.
• Court: U.S. District Court — Southern District of New York

214 F. Supp. 425

UNITED STATES of America ex rel. Roberto Santiesteban CASANOVA, Relator, v. Walter W. FITZPATRICK, Warden, Federal Detention Headquarters, Respondent.

United States District Court S. D. New York.

January 16, 1963.

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Rabinowitz & Boudin, New York City, for relator; Leonard B. Boudin, Victor Rabinowitz, Mary M. Kaufman, Arthur Schutzer, Henry Winestine, Michael B. Standard, New York City, of counsel.

Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, New York City, for respondent; Vincent L. Broderick, Chief Asst. U. S. Atty., Sheldon H. Elsen, Arnold M. Enker, Arthur I. Rosett, Asst. U. S. Attys., of counsel.

WEINFELD, District Judge.

The petitioner, Roberto Santiesteban Casanova, seeks his release from custody on a writ of habeas corpus on the ground of lack of the Court's jurisdiction over his person. He is under arrest and detention by virtue of a two-count indictment wherein he, two codefendants and two others not named as defendants are charged with conspiracy to commit sabotage and to violate the Foreign Agents Registration Act.¹ He was originally arrested on a warrant issued by the United States Commissioner, based upon a complaint, and held in $250,000 bail fixed by the Commissioner. Thereafter, following his indictment by a grand jury, this Court set bail in the sum of $75,000, which it later reduced to $50,000. Petitioner has been confined since his arrest in default of bail.

Petitioner contends he is entitled to diplomatic immunity and is not subject to Federal arrest, detention or prosecution. The basic facts upon which his claim to immunity rests are not in dispute. He is a Cuban national, appointed by his government as an attache and Resident Member of the Staff of the Permanent Mission of Cuba to the United Nations, hereafter referred to as the "Cuban Mission." He entered the United States on October 3, 1962 with a diplomatic passport issued by his own government, a nonimmigrant visa issued by our Department of State, and a landing card issued by the Immigration and Naturalization Service. From the time of his admission to the United States to the date of his arrest on November 16th he was employed as a Resident Member of the staff of the Cuban Mission.

Petitioner contends that he enjoys diplomatic immunity from arrest and prosecution under (1) Article 105 of the United Nations Charter, (2) Section 15 (2) of the Headquarters Agreement of the United Nations, and (3) the Law of Nations. He further contends that even if his claim to immunity is overruled, nonetheless the writ must be sustained, since the Supreme Court of the United States has exclusive and original jurisdiction to try him under Article III of the Constitution of the United States and section 1251 of Title 28, United States Code.

Before considering his contentions, it is desirable to localize the issue with which we deal. The petitioner is not a member of a diplomatic staff accredited to, and recognized by, the United States Government.² He is not a representative to,³ or an employee of,⁴ the United Nations. His claim to diplomatic immunity derives solely from his status as a Resident Member of the Cuban Permanent Mission to the United Nations. Whatever right to immunity exists must be considered within the context of that status.

A. THE CLAIM OF DIPLOMATIC IMMUNITY UNDER THE UNITED NATIONS CHARTER.

Article 105 of the Charter of the United Nations provides as follows:⁵

"1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

"2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

"3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose."

The thrust of the relator's contention is that the declaration in section 2 is self-executing and requires absolute diplomatic immunity be accorded to representatives of members and their staffs. The argument rests upon the postulate, universally recognized in international law, that diplomatic agents are accorded immunity from judicial process so that their governments may not be hampered in their foreign relations by the arrest or harassment of, or interference with, their diplomatic representatives.⁶ Petitioner urges that this rationale applies with equal force to the members of a mission to the United Nations and its staff; that unless they enjoy diplomatic immunity they can be prevented from fulfilling their diplomatic functions vis-a-vis the United Nations, if the host country, in this instance the United States, were able to arrest and detain them— in short, that diplomatic immunity is required to assure the independence of the Organization and its members in the discharge of their duties and functions. Accordingly, he contends that Article 105 intended, and in fact confers, full diplomatic immunity. The language of Article 105, its history, as well as subsequent acts by the United States and the United Nations, require rejection of petitioner's claim that by its own force full diplomatic immunity was either intended or granted by the Article.⁷

Significantly, the words "diplomatic immunity" nowhere appear in Article 105. Events preceding its adoption point up the reason. Some delegate nations to the San Francisco Conference of 1945 had proposed that the Charter contain a provision granting traditional "diplomatic privileges and immunities" to representatives of member nations, officials of the United Nations Organization and their respective staffs. These and other proposals were referred to Committee IV/2 which had been established by the Conference to prepare provisions relating to juridical problems under the Charter.⁸

The Committee, in recommending what in substance is now Article 105, emphasized that it deliberately avoided the term "diplomatic" immunity—the one term which by international law and usage accorded pervasive immunity. The Committee "preferred to substitute a more appropriate standard, based, * * in the case of the representatives of its members and officials of the Organization, on the independent exercise of their functions." And recognizing that even this limited immunity required further definition and implementation, section 3 was recommended and adopted.⁹

Likewise, the American authorities, in explaining the meaning of the various provisions, make it abundantly clear that Article 105 in and of itself was not intended to confer diplomatic immunity. The Secretary of State, Chairman of the United States Delegation to the San Francisco Conference which gave birth to the Charter, reported to the President of the United States:¹⁰

"* * * Article 105 stipulates that the Organization itself, the representatives of the Members and the officials of the Organization shall have the `necessary' privileges and immunities.

* * * * * *

"It would have been possible to make the simple statement that all of these officials and representatives would have diplomatic privileges and immunities but it is not necessarily true that these international officials will need precisely the same privileges and immunities as are needed by the diplomatic representatives of individual states. It accordingly seemed better to lay down as a test the necessity of the independent exercise of the functions of the individuals in connection with the Organization."

Similarly, the testimony before the Senate Committee on Foreign Relations of the State Department's expert on the Charter indicates that diplomatic immunity under Article 105 was not intended.¹¹

Finally, the reports of both the House and Senate Committees dealing with the Headquarters Agreement, which significantly, as we shall see below, did provide for diplomatic immunity for those who came within its limits, support the conclusion that the Charter did not of its own force grant diplomatic privileges and immunities. The report of the Committee on Foreign Affairs of the House of Representatives states: "The committee have taken note that the Charter itself, in dealing with the question of immunities, does not specify diplomatic status. It simply states the requirement of such immunity as is necessary for the performance of the function."¹² And the report of the Senate Committee on Foreign Relations implies as much.¹³

Other events undermine petitioner's claim that diplomatic immunity was intended or granted under Article 105. The Charter came into force with respect to the United States on October 24, 1945.¹⁴ In December, 1945 Congress enacted the International Organizations Immunities Act,¹⁵ which was made applicable to the United Nations by Executive Order.¹⁶ The House Committee Report on this Act stated that "* * * The passage of this legislation is essential to implement our participation in the United Nations."¹⁷ Section 7 thereof granted immunity to representatives of foreign governments to the United Nations for acts performed within their functions as such representatives.¹⁸ This admittedly was a functional or restricted immunity.¹⁹ If in fact a broad diplomatic immunity was extended by the Charter itself, this Congressional Act was without purpose as far as the United Nations was concerned.

Other evidence emphasizes that the Charter did not contemplate diplomatic immunity but intended only functional immunity. Paragraph 3 of Article 105, already referred to as designed to secure implementation and to define the scope of the "privileges and immunities" set forth in paragraphs 1 and 2, provides that the General Assembly may make recommendations or propose conventions with a view "to determining the details of the...