UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
__________________________________________
No. 97-1084
__________________________________________
United States of America
Respondent, Appellant
v.
Lui Kin-hong, a/k/a Jerry Lui
Petitioner, Appellee
__________________________________________
ON APPEAL FROM AN ORDER OF THE
UNITED STATES DISTRICT COURT
__________________________________________
REBUTTAL BRIEF FOR LUI KIN-HONG,
PETITIONER, APPELLEE
__________________________________________
Harvey A. Silverglate
BBO#462640
Andrew Good
BBO#201240
SILVERGLATE & GOOD
83 Atlantic Avenue
Boston, MA 02110
Tel (617) 523-5933
Fax (617) 523-7554
February 21, 1997
TABLE OF CONTENTS
I. THE GOVERNMENT'S NEW CLAIM BASED ON ARTICLE V OF
THE 1972 U.K. TREATY FAILS. 1
II. THE GOVERNMENT'S NEW CLAIM, BASED ON THE TEXT OF,
AND CASE LAW CONCERNING, THE TAIWAN RELATIONS ACT,
FAILS. 4
III. THE GOVERNMENT'S NEW, HYPOTHETICAL, UNPRECEDENTED,
AND UNCONSTITUTIONAL ARGUMENT THAT THE P.R.C. MAY BE SUBSTITUTED FOR
THE U.K. AS A SIGNATORY TO THE TREATY WITHOUT SENATE ADVICE AND
CONSENT SHOULD BE REJECTED. 6
IV. IN THE UNLIKELY EVENT THAT THIS COURT REVERSES THE
JUDGMENT BELOW, THE GOVERNMENT'S NEW ASSERTION THAT
THERE SHOULD BE NO REMAND FOR DISTRICT COURT
ADJUDICATION OF LUI'S FIFTH AMENDMENT AND
INTERNATIONAL LAW CLAIMS SHOULD BE REJECTED. 10
V. CONCLUSION. 13
TABLE OF AUTHORITIES
CASES
Ahmad v. Wigen,
910 F.2d 1063 (2d Cir.)
stay denied, 497 U.S. 1054 (1990) 11
In re Normano,
7 F.Supp. 329 (D.Mass. 1934) 12
New York Chinese TV Programs, Inc. v.
U.E. Enterprises, Inc.,
954 F.2d 847 (2d Cir.)
cert. denied, 506 U.S. 827 (1992) 4
Rosado v. Civiletti,
621 F.2d 1179 (9th Cir.)
cert. denied, 449 U.S. 856 (1980) 11
Terlinden v. Ames,
184 U.S. 270 (1902) 7
STATUTES
22 U.S.C. §3301 et. seq. 4, 5
22 U.S.C. §3303(c) 5
Hong Kong Policy Act, 22 U.S.C. §5701 et. seq. passim
28 U.S.C. §2253 12
TREATIES AND CONVENTIONS
Extradition Treaty Between the Government of the
United States of America and the Government of the
United Kingdom of Great Britain and Northern
Ireland, June 8, 1972, 28 U.S.T. 227 passim
Supplementary Treaty Between the United States of
America and the United Kingdom of Great Britain and
Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 passim
OTHER AUTHORITIES
U.S. Department of State, United States-Hong Kong
Policy Act Report, March 31, 1995 5, 7
4 G. Hackworth, Digest of International Law, §§339,
342 (1942) 12
John J. Kester, "Myths of Extradition Law", 76
Georgetown L.J. 1441 (1988) 12
I. THE GOVERNMENT'S NEW CLAIM BASED ON ARTICLE V OF THE 1972 U.K.
TREATY FAILS.
For the first time, the government claims that Article V of the 1972
Treaty diminishes the probative force of the history and process by which
the Supplementary Treaty was ratified -- probative in terms of the
Supplementary Treaty's being taken as evidence of the drafters' intention
that the Treaty be defined as applying only to the U.K. as the sovereign
that may detain, try or punish Lui if surrendered. However, the
government concedes that even if Article V of the 1972 Treaty would
theoretically be available for persons, such as Lui, who are sought by the
United Kingdom Crown Colony of Hong Kong (UKCCHK) for economic offenses
such as bribery, the law of the United States, as the requested Party,
would exclude such offenses from the political offense exception.
Government's Reply Brief (GR) at 8 n.9.
Thus, according to the government, in the only cases where the
political offense exception might realistically apply, the exception has
been narrowed and, in such cases, "a new type of judicial inquiry
altogether" (GR at 8) is authorized. This "new type of judicial inquiry"
under Article 3(a) includes determining whether, if surrendered, the
relator "would be prejudiced at his trial or punished, detained or
restricted in his personal liberty by reason of his race, religion,
nationality or political opinions."
Contrary to the government's argument, Lui's ineligibility for
Article 3(a) protection is no bar to the district court's examination of
that provision, as one part of the integrated Treaty, in order to
determine the Treaty's overall meaning, intent, and applicability.
Indeed, judicial interpretation of the Treaty requires that all provisions
be taken into account, regardless of whether Lui may rely upon any
particular provision. Lui need not be personally eligible for Article
3(a) protection against abusive prosecution and punishment, in order to
cite the article as proof that the Treaty's unusually narrow measure of
protection is United Kingdom-specific. To the contrary, it is precisely
because this Treaty is with the United Kingdom that the Senate has made
Lui ineligible to defend against his extradition on the ground that, he
would, if surrendered, face abusive and discriminatory detention, trial
and potential punishment. It is perfectly clear from the history of the
adoption of the Supplementary Treaty that the Senate, had it meant for the
treaty to apply to extraditions for trial and punishment under PRC
sovereignty, would not have approved such a narrow political offense
defense. If there ever were an extradition treaty which would authorize
the Secretary of State to surrender relators to face P.R.C. trial and
punishment, the Senate might well insist upon protection against abusive
prosecutions and punishment on terms similar to Article 3(a), but for the
full range of extraditable offenses. Lui, after all, is precisely the
kind of person that the Senate would be wary to send to a P.R.C. sovereign
for trial and punishment under a relaxed standard of protection for
political dissenters. He was born in China, but his family fled from
Communist tyranny to Hong Kong in 1956. His earliest education was in
Christian schools in Hong Kong, but his family and school arranged for him
to complete his secondary and higher education in Christian and secular
institutions in Canada. He and his family obtained Canadian citizenship
so as to be safe from living under P.R.C.-rule in Hong Kong, and his
resistance to being extradited into the hands of the PRC has been
commented upon negatively by the Beijing government. Lui would be capable
of making quite a powerful record as a person eligible for the political
offense exception, were he sought under a treaty other than this UK-
specific treaty.
As reported by the Amici, P.R.C. transitional authorities have
announced that all of the binding guarantees of fair trials, including
prohibitions against discrimination, which are included in Hong Kong's
Bill of Rights Ordinance, are to be repealed under P.R.C. rule, as will
the British Law Ordinance which affords habeas corpus protection against
unlawful imprisonment in Hong Kong. Because Article 3(a) contemplates
that, if surrendered, Lui's detention, trial and punishment would occur in
UK courts and prisons and not those of the P.R.C., it does not apply to
his bribery case and affords no protection from the P.R.C.'s abuse of his
human rights, because he is a Christian, Canadian and capitalist refugee
from Communist China, and now from Hong Kong. For this reason,
nothing in Article V of the 1972 Treaty does anything to affect the
district court's correct conclusion that the Treaty, including Article
3(a), does not grant jurisdiction to the Magistrate Judge to certify to
the Secretary of State that she may surrender Lui for detention, trial or
punishment under P.R.C. sovereignty in Hong Kong.
II. THE GOVERNMENT'S NEW CLAIM, BASED ON THE TEXT OF, AND CASE
LAW CONCERNING, THE TAIWAN RELATIONS ACT, FAILS.
Though it did not say so in its opening brief, the government
asserts in reply that the 1992 U.S.-Hong Kong Policy Act ("HKPA")
"resembles the Taiwan Relations Act, 22 U.S.C. § 3301 et seq." which
became law in 1979 (GR at 18). This alleged "resemblance" supposedly
means that, according to the HKPA, the UK Treaty authorizes extradition
for detention, trial and punishment under P.R.C. sovereignty in Hong Kong.
If there is any "resemblance", it is exceedingly remote. Congress
assuredly did not decide in 1992 that the P.R.C.'s resumption of
sovereignty over Hong Kong would not require changes in previously
applicable American treaty relations, as was the case when the U.S.
withdrew diplomatic recognition of the Taiwan government. No change of
sovereignty over Taiwan occurred. The differences between the two
statutes, and the contrasting circumstances which prompted enactment, are
added proof that the government's HKPA argument should be rejected.
In the case of the Taiwan Relations Act ("TRA"), the political
branches clearly strove to maintain unchanged treaty relations with Taiwan
(including defense assistance primarily against the military threat posed
by the P.R.C.), notwithstanding America's withdrawal of diplomatic
recognition of the Republic of China as the sole Chinese government. See
New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 954 F.2d
847, 849-51 (2d Cir. 1992). In the case of Hong Kong, part of the
territory of America's closest ally (with an existing set of bilateral
treaty relations) is to become part of the territory of a totalitarian
regime with which America maintains often-strained relations, including
entirely different treaty relations. Because of this enormous difference,
the TRA provision concerning the continuation of treaties, 22 U.S.C. §
3303(c), states unqualifiedly that all such agreements shall remain in
force after the Taiwan government's loss of diplomatic recognition. This
Taiwan provision is similar to the first sentence of the Hong Kong Policy
Act's treaty provision, 22 U.S.C. § 5721(b). It is crucial to note,
however, that the TRA lacks a provision "resembling" the last sentence of
§ 5721(b); nor does it have other text or legislative history comparable
to that under the HKPA. This legislative history demonstrates that the
State Department and the Congress have consistently stated that the U.K.. e
extradition treaty would not be appropriate to continue in force after the
reversion, and would therefore have to be replaced by a new treaty
requiring Senate ratification. Unlike in the Taiwan situation, where the
Second Circuit properly recognized that the political branches had decided
that treaties which pre-dated the de-recognition date should not lapse
thereafter, the government cannot deny that the President has formally
stated, in the 1995 Hong Kong Policy Act Report, that as of the reversion
date the U.K. extradition Treaty will have to be replaced. Add. 74.
Indeed, the Executive's own conduct confirms this through its negotiation
of a proposed treaty that is about to be submitted to the Senate. The
government conceded in the district court that, so long as the legal
status of the Treaty remains unchanged, and no other treaty is ratified
and in force, the Treaty will lapse on the reversion date. A. 310.
III. THE GOVERNMENT'S NEW, HYPOTHETICAL, UNPRECEDENTED, AND
UNCONSTITUTIONAL ARGUMENT THAT THE P.R.C. MAY BE SUBSTITUTED FOR THE
U.K. AS A SIGNATORY TO THE TREATY WITHOUT SENATE ADVICE AND CONSENT
SHOULD BE REJECTED.
The government is unable to rebut the evidence in the text, history,
and reports issued under the HKPA, to the effect that both political
branches have always understood that it would take a new, Senate-ratified
treaty to authorize extraditions to the courts and prisons in P.R.C.-
controlled Hong Kong, depending on a judgment made by both political b
branches concerning the extent of China's adherence to the Joint
Declaration and any other relevant factors. Perhaps, in the light of
recent events in China and Hong Kong, the Executive now lacks confidence
that the Senate will ratify the proposed treaty (A. 26-27), especially
since the Executive is obliged to file a HKPA report to Congress on March
31, 1997 (Add. 68) concerning the P.R.C.'s expressed intention to use
Beijing-appointed, undemocratic institutions to make Hong Kong's Bill of
Rights Ordinance non-binding, and to repeal habeas corpus, and because the
Senate has already expressed its sense that the PRC is violating the Joint
Declaration. (Add. 86)
For the first time on appeal, the Executive in its reply brief
expresses its willingness to renege on assurances given to the Congress --
both prior to enactment of the HKPA and in the 1995 HKPA Report (Add. 74)
-- that the Senate's prerogative would be respected concerning
extraditions to post-reversion Hong Kong. The government reports that it
has discussed this evasion of the Senate with "Hong Kong and PRC
officials." GR at 17 n.16.
In this astonishing footnote 16, the government cites the inapposite
"state succession" cases mentioned by the Magistrate Judge, as if the
Senate's Advice and Consent to extradition relations with the U.K. would
be transferrable to the P.R.C. Because the Chinese have not yet even
agreed to this maneuver, this Court can properly ignore for now the
government's hypothetical suggestion. However, the government seeks to
make the suggestion less hypothetical by arguing from the false premise
that "if" the Senate's Advice and Consent is unnecessary to continue the
U.K. Treaty in force into the post-reversion period, then Lui's claim that
his extradition lacks current Senate approval must fail, such approval
being unnecessary. However, the government runs head-on into the fact
that the State Department is on record stating to the Congress that the
change in sovereignty over Hong Kong is not a state succession (Add. 49);
neither has it shown that Terlinden v. Ames, 184 U.S. 270 (1902), and its
progeny apply here, those being inapposite state succession cases. As the
district court noted, the Senate's Resolution of Ratification expressly
warned against using the Treaty's provisions for extradition relations
with any other sovereign without further Advice and Consent, and the
Treaty's political offense provisions were not to be used to form a
relationship with any non-democratic or totalitarian regime. A. 200.
At bottom, Lui maintains that, under the Fifth Amendment's Due Process
Clause and the Advice and Consent Clause, the Senate's Advice and
Consent to the terms of an extradition relationship with the U.K. is not
transferrable to the P.R.C. at the whim of the State Department. China is
not a newly-emerged sovereign which has been relieved of its colonial
status and has agreed with the U.S. to succeed to the U.K.'s shoes as a
U.S. treaty partner, as was the case for Canada or the Bahamas. China is
a sovereign arguably older than the U.K. Hong Kong's territory is being
ceded from U.K. sovereignty to become part of the territory and
sovereignty of China. China has long had independent treaty relations
with the United States which are very different from U.S.-U.K. Treaties.
Because of the liberty interests at stake in extradition treaties, and the
imperative to preserve its careful allocation of powers, including checks
and balances in the conduct of foreign affairs, our Constitution requires
Senate approval to establish an extradition relationship with the P.R.C.
Because of its status as an international human rights scofflaw, no
country in the world formed an extradition relationship with the P.R.C.
prior to 1996, when Russia and Byelorussia did so. The Constitution's
design and fundamental liberty interests require that when, if ever,
America announces before the world that this nation has sufficient
confidence in P.R.C.-controlled courts and prisons in Hong Kong to
extradite people there on terms similar to (or, more likely, very
different from) those in the existing U.K. Treaty, the voice of the Senate
must be heard.
If it is not by now perfectly obvious that a U.S.-U.K. treaty may
not be the basis for extraditing Lui to stand trial in courts of the
P.R.C. sovereign (the government's theory being that in some casuistic
fashion Hong Kong will not really be part of China because the P.R.C. has
promised the U.K. that Hong Kong will be allowed some degree of autonomy),
it becomes so when one examines the enormous implications of the
Executive's extraordinary and unprecedented claims in its Reply Brief.
The government claims (GR at 17, n. 16) that it can proceed to extradite
Lui to Hong Kong, for a post-reversion trial, under the current U.K.
treaty, since that treaty could in any event survive into the post-
reversion period by the mechanism of "state succession," all without
Senate Advice and Consent. Yet in the record below (A. 26) is a
Declaration of Jamison S. Borek, Deputy Legal Adviser in the Office of the
Legal Adviser, Department of State, in which the government advises that
Hong Kong and the P.R.C. will shortly conclude a treaty allowing
extraditions from the Hong Kong Special Administrative Region ("HK-SAR")
into anywhere in the rest of China. Under the theory set forth by Ms.
Borek, the only thing that would then prevent HK-SAR from re-surrendering
someone like Jerry Lui to the hands of the mainland Chinese authorities
would be the "specialty" provision of the Treaty, which prohibits the
requesting country from re-surrendering the extraditee to a third
sovereign. Again according to Ms. Borek, the Secretary of State has the
power to waive specialty protection. What this means, of course, is that
if the government's theory is allowed to stand, this Court would have
approved, indeed facilitated, the extraditions of free citizens from U.S.
soil to China, via the way station of Hong Kong, with nothing more than a
waiver by the Secretary of State, and with no role for the Senate. Merely
to state this proposition is to refute it.
For these reasons, the government's hypothetical postulate that
Senatorial Advice and Consent can be dispensed with by assigning to the
P.R.C. the U.K.'s position as an extradition treaty signatory will not
withstand constitutional scrutiny.
IV. IN THE UNLIKELY EVENT THAT THIS COURT REVERSES THE JUDGMENT BELOW,
THE GOVERNMENT'S NEW ASSERTION THAT THERE SHOULD BE NO REMAND FOR
DISTRICT COURT ADJUDICATION OF LUI'S FIFTH AMENDMENT AND
INTERNATIONAL LAW CLAIMS SHOULD BE REJECTED.
The government argues for the first time in reply that Lui's claims
under the Fifth Amendment's Due Process Clause and Multilateral Human
Rights Conventions are barred by the non-inquiry doctrine because this
would supposedly involve a prohibited inquiry "into the requesting
country's legal system," GR at 19-21, and that this precludes a remand if
there is a reversal. Lui's due process and human rights claims do not
involve any inquiry concerning the legal or prison system of the UKCCHK, a
U.S. treaty partner. Hence, the rule of non-inquiry does not bar them.
The government also argues that Lui's Fifth Amendment and human
rights claims are solely for the Secretary of State, quoting the assertion
in Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) that, so far as that
Court knew, the Secretary had "never directed extradition in the face of
proof that the extraditee would be subjected to procedures or punishment a
antipathetic to a federal court's sense of decency" and added that "it is
difficult to conceive of a situation" in which this would occur. The
liberty interests of everyone in America are ultimately entrusted to the
federal judiciary through its habeas corpus jurisdiction. Rosado v.
Civiletti, 621 F.2d 1179, 1197 (2d Cir. 1980). The reality is that the E
Executive's record has been neither as pristine nor as trustworthy as the
Wigen Court supposed. History shows that the same district court which
seeks to protect Lui here, protected a Jew, Joao Normano, from the State D
Department's decision to extradite him into the hands of Nazi justice in
1933 and 1934:
The attorneys for Isaak Lewin, otherwise known as Joao Frederico
Normano, in urging in 1933 against his extradition from the United
States to Germany, raised the point that, being a Jew, he would not
receive a fair trial from the authorities then functioning in
Germany. Joseph R. Baker of the Legal Adviser's Office of the
Department of State, in commenting thereon, said:
...it may be stated that determination of this matter involves
a question of policy which is not within the legal domain.
However, it may be suggested in this relation that the
provisions of the Extradition Treaty between the United States
and Germany do not appear to afford any basis for refusing
extradition on this ground. Possibly if it shall be decided
that Lewin should be surrendered it would be appropriate to
suggest in the note with which the warrant of surrender is
transmitted to the German Embassy that objection has been
raised to the surrender of Lewin on the ground that under
existing conditions in Germany he could not hope to receive a
fair trial and that the Department desires to have the German
Government informed of this objection while not assuming that
it is well grounded.
Memorandum of April 4, 1933, MS. Department of State, file 211.62
Lewin, Isaak/22 _. The sense of the foregoing was embodied in the
note to the Embassy. Ibid. /23.
4 Hackworth, Digest of International Law §§ 339, 342 (1942); see In re
Normano, 7 F.Supp. 329 (D.Mass. 1934)(granting writ of habeas corpus);
and, see generally, John J. Kester, "Myths of Extradition Law", 76 Geo. L.
J.1441, 1484-89 (1988).
The district court conducted no proceedings concerning Lui's Fifth
Amendment and human rights claims, except to note that Lui's claims are
"not frivolous." A. 202. Lui has not yet had a full opportunity to make
the required factual record which will require supplementation and, almost c
certainly, the taking of live testimony, including Lui's testimony that
was erroneously precluded by the Magistrate.
Lui's probable cause claims concerning each one of the nine
certified charges as well as his human rights claims are not before this
Court and the record is not fully developed. On this record, there is no j
jurisdiction under 28 U.S.C. § 2253 for this Court to consider their
merits. The government notes that Lui's claims refer to many issues,
including the Magistrate Judge's refusal to consider polygraph evidence
showing that Lui is innocent of bribery, and as corroboration of
exculpatory affidavits submitted by defense witnesses which the Magistrate
Judge's opinion shows he failed to consider at all. All of these issues
deserve and require the district court's thorough consideration. In its
remarkable footnote 16, the government states that it has the option to
continue this extradition effort even after the reversion date, no matter
which way this Court rules, by relying upon a PRC-signed treaty which has
not received the Senate's imprimatur. Hence, the government's position
undermines any claim that it would be prejudiced by further district court
proceedings.
V. CONCLUSION.
For all the foregoing reasons, and for those set forth in Lui's
opening brief, the district court should be affirmed.
Respectfully submitted,
Harvey A. Silverglate
BBO#462640
Andrew Good
BBO#201240
SILVERGLATE & GOOD
83 Atlantic Avenue
Boston, MA 02110
(617) 523-5933
Dated: February 21, 1997