Response Case No. 16-23468

Case 1:16-mc-23468-UNA Document 56 Entered on FLSD Docket 01/06/2017 Page 1 of 17
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-23468-MC-O’SULLIVAN
IN RE EXTRADITION OF
ANDRES FELIPE ARIAS LEIVA
________________________________/
RESPONSE TO THE REPUBLIC OF COLOMBIA’S

SUPPLEMENTAL MEMORANDUM REGARDING JURISDICTION
At the hearing regarding this Court’s jurisdiction, the Court gave Colombia time to
show that the Extradition Treaty is in effect in Colombia. DE53:40–41. Colombia’s diplomatic
note confirms it is not: “[T]he treaty cannot be applied” in Colombia and “extradition requests
that the United States of America presents to Colombia, cannot be processed, neither granted
or denied, in accordance to [sic] the Treaty.” DE54-1:8, 9. The note goes on to repeat
Colombia’s argument that this Treaty is the only one in force in just one country. Of course,
a one-country treaty cannot exist. The truth is that the Treaty is not force. As President
Santos said, while explaining why a notorious drug kingpin was extradited to Venezuela
rather than the United States, “We have an extradition agreement with Venezuela, not with
the United States.” EFE NEWS (6 Apr 2011).
Colombia grants no extraditions under the Treaty and is not bound by it. Andres
Felipe Arias asks this Court to apply U.S. law to the undisputed facts and reach the only
conclusion the law allows—the Treaty is not in effect, and there is no jurisdiction. Colombia
again asks this Court to ignore the facts, to not decide the jurisdictional issue for itself, and
to become the first court to exercise jurisdiction under a one-country extradition treaty.
! First, even if a treaty could be in force in only one country, it would not support
jurisdiction because the extradition statute specifically requires a mutual extradition treaty.
! Second, there is no such thing as a one-country treaty. Colombia’s argument defies
the Treaty’s terms, federal law, the Constitution, the law of treaties, and common sense.
! Third, whether this Court has jurisdiction is a purely legal issue, not a political one.
! Fourth, binding precedent holds that this Court cannot defer to anyone, including
the State Department, on treaty interpretation—much less when jurisdiction turns on it.
I. The statute does not authorize jurisdiction under a one-country treaty.

Colombia’s Ministry of Foreign Affairs claims the Treaty is somehow in effect only in
the United States. It cannot be, as Part II details. But, even if a one-country treaty were not
a contradiction in terms, jurisdiction would not exist under such a treaty. Jurisdiction exists
only if there is a treaty in effect in the United States and in another country, too. The
extradition statute says there is jurisdiction “[w]henever there is a treaty or convention for
extradition between the United States and any foreign government ... .” 18 U.S.C. § 3184
(emphasis added); see also 18 U.S.C. § 3181 (“The provisions of this chapter relating to the
surrender of persons who have committed crimes in foreign countries shall continue in force
only during the existence of any treaty of extradition with such foreign government.”). If the
Treaty binds only the United States, it is not in any sense “between” the United States and
Colombia. A treaty is between parties only if it binds all, as the Constitution illustrates: “The
Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this
Constitution between the States so ratifying the same.” U.S. CONST. art. VII (italics added).
It is undisputed that the Treaty is not legally binding on Colombia:
! Colombia’s latest filing says so. DE54:3 (stating that, because the Colombian
Supreme Court of Justice held unconstitutional the law that would have ratified the Treaty,
“Colombia execut[es] extraditions to the United States pursuant to its domestic law”).
! Its Foreign Affairs Ministry’s diplomatic note says so: “[I]n the Republic of
Colombia the treaty cannot be applied ... . In this sense, the extradition requests that the
United States of America presents to Colombia, cannot be processed, neither granted or
denied, in accordance to the Treaty of 1979 ... .” DE54-1:8–9.
! President Santos says so: “We have an extradition agreement with Venezuela, not
with the United States.” EFE NEWS (6 Apr 2011); see also DE39-2.
! His immediate predecessor, President Uribe, says so: “Colombia does not recognize
the treaty as valid or in effect because it was not properly ratified as explained by the
Supreme Court of Justice in 1986 and 1987.” DE39-1:1.
! This Court says so. See United States v. Benitez, 28 F.Supp.2d 1361, 1363 n.2 (SD
Fla. 1998) (“In 1987, the Colombian Supreme Court annulled Colombia’s extradition treaty
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with the United States.”); United States v. Abbell, 963 F.Supp. 1178, 1189 n.22 (SD Fla. 1997)
(“[T]he Colombian Supreme Court declared unconstitutional the extradition treaty between
Colombia and the United States.”).
! The Eleventh Circuit says so. See United States v. Valencia-Trujillo, 573 F.3d 1171,
1179 n.1 (CA11 2009) (“In 1986, the Colombian Supreme Court declared the law ratifying the
treaty invalid.”); United States v. Duarte-Acero, 296 F.3d 1277, 1279 (CA11 2002) (“In 1987,
the Corte Suprema de Justicia annulled the extradition treaty altogether, finding its
ratification unconstitutional.”); Gallo-Chamorro v. United States, 233 F.3d 1298, 1302 n.1
(CA11 2000) (“In 1986, the Colombian Supreme Court held that Law 27 was unconstitutional
because it had been sanctioned by a Colombian government official other than the President
of Colombia. Because of this ruling, the treaty lacks force in Colombia.”).
Because the Treaty is not law in Colombia, Colombia does not observe it. DE54-1:9.
When it extradites people to the United States, it does so only “pursuant to its domestic law,”
not the Treaty. DE54:3. It routinely denies U.S. extradition requests for crimes listed in the
Treaty. See DE32:4; DE27:5. “Colombia did not expressly reference the Treaty in its request
for the extradition of Arias Leiva.” DE54:13. The State Department agrees that the Treaty
is not law in Colombia. DE54:3–4 (quoting DOS report). So, even if the Colombian Ministry’s
opinion that the Treaty binds only the United States had any legal support, see DE54-1:9,
there could be no jurisdiction because such a treaty would not be “between” the United States
and Colombia. Of course, this Court asked Colombia about the Treaty’s effect in Colombia;
the Ministry has no expertise in U.S. law generally or federal jurisdiction specifically.
Even assuming that a one-country treaty can exist, there is no jurisdiction. Congress
specified that jurisdiction exists in this case only if the Treaty is “between the United States
and any foreign government ... .” 18 U.S.C. § 3184. It is not. That ends the case. “Without
subject matter jurisdiction, a court has no power to decide anything except that it lacks
jurisdiction.” United States v. Salmona, 810 F.3d 806, 810 (CA11 2016).
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II. The Treaty is not in force because Colombia’s actions, as well as its words, show
it does not consent to be bound by it, and that is determinative.
Both United States law and international law presuppose that a one-country treaty
is no treaty at all. That is why Colombia does not cite in any of its filings—not in its response
to the motion to dismiss, not in its supplemental memoranda, not in the State Department
lawyer’s conclusory declarations, not in the self-serving diplomatic note—a single case in
which a court exercised jurisdiction under a one-country treaty. There is no such case because
there is no such thing as a one-country treaty.
A. U.S. law says the Treaty is not in force because Colombia does not abide by it.
Colombia’s inventive one-country treaty idea disregards that, under United States law
on treaties, Colombia’s failure to observe the Treaty means it is not in effect. Whether an
extradition treaty is in effect depends, more than anything else, on whether both countries
observe it by granting extraditions under the treaty:
[W]e think that on the question whether this treaty has ever been terminated,
governmental action in respect to it must be regarded as of controlling
importance. During the period from 1871 to the present day, extradition from
this country to Germany, and from Germany to this country, has been
frequently granted under the treaty, which has thus been repeatedly
recognized by both governments as in force.
Terlinden v. Ames, 184 U.S. 270, 285 (1902) (emphases added). More than 100 years later, it
is still the conduct of the two countries that is determinative, as the Eleventh Circuit has said,
because that is the best indication of whether both countries are bound by the Treaty: “[W]e
begin our analysis by examining the conduct of the United States and the Czech Republic to
determine whether such conduct evinces an intent that the nations continue to be bound by
the extradition treaty.” Kastnerova v. United States, 365 F.3d 980, 986 (CA11 2004).
Colombia never grants extraditions under the Treaty. DE54-1:8–9. It routinely denies
U.S. extradition requests for serious crimes listed in the Treaty’s Schedule of Offenses. See,
e.g., United States v. Murillo, 826 F.3d 152, 155 (CA4 2016) (murder of a United States officer
[Treaty Offense No. 1]); United States v. Alvarado, 808 F.3d 474, 482 (CA11 2015) (providing
weapons to terrorists [No. 20]); United States v. Mosquera, 580 F. App’x 580 (CA9 2014)
(misusing a Social Security number to get a car loan [No. 10]); Rodriguez v. United States,
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No. 11-2957, 2013 WL 6171618 (SDNY 25 Nov 2013) (homicide [No. 1], illegal gun possession
[No. 20], theft conspiracy [Nos. 9, 10]). Also, it is undisputed that, in recent months, Colombia
“refused at least two United States requests to extradite FARC members.” DE27:5; DE32:4.
The case of notorious Venezuelan drug baron Walid Makled Garcia typifies Colombia’s
disregard of the Treaty. “According to the White House, Makled is the third-most significant
drug kingpin in the world, responsible for smuggling 10 tons of cocaine into the U.S. and
Europe a month (which represents roughly one tenth of the global cocaine supply).” Diego
Arria, Walid Makled Garcia, drug kingpin, must face American justice, N.Y. DAILY NEWS
(6 Apr 2011). The United States sought Makled’s extradition. “Yet, Santos has decided to
return this man to Venezuela, to a regime that stands accused of cooperating with drug
cartels, supplying weapons to FARC, the Colombian guerilla group, and giving cover to the
Islamic extremists of Hezbollah.” Id. This denial of the United States’ request generated
international headlines. Asked by Univision and EFE News why Colombia denied the United
States’ request, President Santos said in a videotaped interview:* “We have an extradition
agreement with Venezuela, not with the United States.” EFE NEWS (6 Apr 2011).
The Santos Administration also rebuffed the United States’ request to extradite
FARC rebel Juan Vicente Carvajal, who was indicted for drug trafficking in the Southern
District of New York. See Colombia: Government Won’t Extradite Rebel to U.S., N.Y. TIMES
(1 Dec 2015). Colombia explained that it considers the peace deal to be more important: “The
[Colombian] government has said a final peace deal would probably protect former rebels
from extradition to the United States.” Id. President Santos said that Colombia would also
deny U.S. extradition requests for FARC leader Rodrigo Londono Echeverri and “some 70
other FARC members sought for drug trafficking and other offences.” Colombia’s Santos ‘in
serious difficulty’ if FARC deal fails, BBC NEWS (19 Nov 2015).
Colombia also denied a U.S. extradition request for two FARC rebels involved in
taking three American citizens hostage in Colombia for five years. Colombia refused to
*
The video of the interview, with the quoted language beginning at 0:30, is available at:
https://www.youtube.com/watch?v=zjSxyv34Vvk&feature=youtu.be.
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extradite these criminals even though 900 U.S. soldiers supported the raid that captured
them and freed 15 hostages, including the three Americans. See Simon Romero, U.S. Aid Was
a Key to Hostage Rescue in Colombia, N.Y. TIMES (13 July 2008). The extradition of
Alexander Farfan was blocked by the same Colombian Supreme Court of Justice that seeks
Dr. Arias’ extradition. See Marc Gonsalves, I Was Held Hostage in Colombia, and My
Captors Should Face U.S. Justice, HUFF. POST (25 May 2011). Former hostage Marc
Gonsalves described years of “starvation, sickness, imposed isolation, and long, arduous,
physically painful marches through the jungles of Colombia.” Id. “How is it that a terrorist
who was caught red handed committing crimes against Americans is not going to be
extradited to the U.S. to face American justice?” Gonsalves wrote. Id. The extradition of
Farfan’s cohort in the hostage-taking, Octavio Orrego Sanchez, was blocked last year. See
Colombia Blocks Extradition of FARC Rebel to Protect Peace Deal, TELESUR (20 Jan 2016).
The Colombian Ministry of Justice explained that it denied the U.S. request to extradite
Orrego because “on this occasion the national government has to carry out an exercise in
deliberation between the primacy of the relations of international cooperation and the
possibility of bringing about the right to peace and to achieve a state of reconciliation and
coexistence in the national territory.” Id.
These cases show that Colombia’s failure to ratify the Treaty is not simply an
“internal” matter, as Colombia and the State Department claim. First, it has a direct and
substantial effect on United States justice. Second, Colombia proclaims globally, not just
internally, that it does not have an extradition treaty with the United States. President
Santos has repeatedly and flatly said so in interviews with international journalists. Also, the
Ministry of Foreign Affairs officially lists the Treaty as “not in force.” DE35:2–3. Colombia
says this makes no difference, DE54:11 n.3, but the list is entitled to evidentiary weight
because a country’s list of treaties in effect is an international proclamation, not a domestic
one. Cf. Kasternova, 365 F.3d at 968 (“Although there is no evidence in the record concerning
extraditions to the United States, the treaty is listed in the U.S. State Department’s Treaties
In Force publication.”); Hoi-Pong v. Noriega, 677 F.Supp. 1153, 1155 (SD Fla. 1988) (“The
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United States considers the treaty [with Trinidad and Tobago] binding and has demonstrated
that fact by recording the treaty in its official publication, ‘Treaties in Force.’”).
Whatever the wisdom of Colombia’s decision to prioritize its controversial peace deal
over U.S. extradition requests, doing so violates “The Basic Rule” of international extradition:
“A state party to an extradition treaty is obligated to comply with the request of another state
party to that treaty to arrest and deliver a person” wanted for trial or punishment.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 475
(emphasis added). U.S. law gives effect to The Basic Rule by directing U.S. extradition courts
to determine whether the conduct of the parties “evinces an intent that the nations continue
to be bound by the extradition treaty.” Kasternova, 365 F.3d at 968. It is undisputed that
Colombia is not bound by the Treaty. It follows that the Treaty is not in effect anywhere.
U.S. law does not allow for a one-country treaty. The idea defies § 3181 and § 3184,
which confer jurisdiction only under mutually binding extradition treaties. Colombia’s one-
country-treaty argument asks this Court to treat the Treaty as a statute conferring federal
jurisdiction over Colombia’s extradition requests. But the Treaty is not a statute because the
House of Representatives did not pass it. See U.S. CONST. art. I § 7. It is not a valid treaty
because the Senate conditioned it on Colombia’s ratification, which, as Colombia’s conduct
and words prove, did not happen. See Treaty art. 21(1); see U.S. CONST. art. II § 2.
B. International law does not recognize a one-country extradition treaty.
Applying United States law to the undisputed facts resolves this case, and Colombia’s
idea of a one-country treaty fares no better under international law. The Vienna Convention
on the Law of Treaties and federal caselaw both show that a one-country treaty cannot exist.
The Convention is not binding on the United States (because the United States did not ratify
it), but Colombia relies on it, see DE54-1:9, and to some extent it restates customary law.
Significantly, the Convention refutes Colombia’s claim that the Treaty’s invalidity renders
prior extraditions “ultra vires.” DE54:1. All previous extraditions are unaffected by the
Treaty’s invalidity. See Convention art. 69 (“A treaty the invalidity of which is established
under the present Convention is void. ... Acts performed in good faith before the invalidity
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was invoked are not rendered unlawful by reason only of the invalidity of the treaty.”). Other
provisions of the Convention demonstrate that a one-country treaty cannot exist:
1. A treaty is “an international agreement concluded between States in written form
and governed by international law ... .” Vienna Convention art. 2(1)(a). According to that
definition, a one-country treaty is an idea that refutes itself. See United States v. Alvarez-
Machain, 504 U.S. 655, 665 (1992) (“Extradition treaties exist so as to impose mutual
obligations to surrender individuals in certain defined sets of circumstances, following
established procedures.”); Charlton v. Kelly, 229 U.S. 447, 474 (1913) (“‘A treaty is primarily
a compact between independent nations ... .’”) (quoting 5 MOORE’S INT’L L. DIG. 366).
2. Ratification occurs when a nation “establishes on the international plane its
consent to be bound by a treaty.” Vienna Convention art. 2(1)(b). This echoes Terlinden’s
holding and The Basic Rule of extradition treaties, which state that complying with the
Treaty is the critical fact. Colombia has “establishe[d] on the international plane” that it is
not bound by the Treaty. President Santos has said so. Colombia’s diplomatic note says so:
“[T]he treaty cannot be applied” in Colombia and “extradition requests that the United States
of America presents to Colombia, cannot be processed, neither granted or denied, in
accordance to [sic] the Treaty.” DE54-1:8, 9. Colombia denies U.S. extradition requests for
crimes specifically enumerated in the Treaty. Therefore, as a matter of international law,
Colombia has not ratified the Treaty because it does not consent to be bound by it.
3. Party “means a State which has consented to be bound by the treaty and for which
the treaty is in force.” Vienna Convention art. 2(1)(g) (emphasis added). Colombia admits that
the Extradition Treaty is not in force in Colombia. Therefore, it is not a party to the Treaty.
Only a party to an extradition treaty can invoke a United States court’s jurisdiction under it.
See 18 U.S.C. § 3184; see also RESTATEMENT § 478 (“A request by a foreign state for
extradition of a person from the United States may be filed in the federal or State court in
whose jurisdiction the person is found.”) (emphasis added). Colombia is estopped from
invoking jurisdiction under this Treaty because it does not abide by it. See DE39:9.
4. Article 7 states that only a representative of a State possessing “full powers” can
enter into a treaty. Because that was not the case with the Extradition Treaty, it never
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entered into effect. Article 8 confirms this: “An act relating to the conclusion of a treaty
performed by a person who cannot be considered under article 7 as authorized to represent
a State for that purpose is without legal effect unless afterwards confirmed by that State.”
Colombia has never confirmed or re-ratified the Treaty, and it has no intention of doing so,
as President Santos has repeatedly said. So, it is “without legal effect.”
5. Article 13 specifies that instruments of ratification evidence a State’s consent to
be bound by a treaty when they “provide that their exchange shall have that effect.” Colombia
admits that the instruments exchanged did not have that effect. DE54:3. For that reason,
“Colombia did not expressly reference the Treaty in its request for the extradition of Arias
Leiva.” DE54:13. Colombia’s conduct shows that the instruments of ratification had no effect.
6. That Colombia takes actions that “defeat the object and purpose” of the
Extradition Treaty is further evidence that it is not in effect. Vienna Convention art. 18. The
stated purpose of the Treaty was to provide “for the reciprocal extradition of offenders.”
Extradition Treaty Preamble (emphasis added). It is undisputed that Colombia routinely
denies U.S. extradition requests in spite of the Treaty. U.S. Ambassador Kevin Whitaker has
acknowledged that Colombia is not bound by the Treaty and can refuse to extradite anyone,
including FARC rebels: “[I]f the Colombian government decides it is not convenient to
extradite them to the U.S., we’ll respect that.” BBC News, US “will not press for FARC
extraditions” from Colombia (13 Oct 2015). In other words, the United States agrees that
Colombia has no obligation to act on U.S. extradition requests. This, too, means the Treaty
is not in effect anywhere. See RESTATEMENT § 475 (“The Basic Rule”).
7. Article 26 states (with emphases added) the idea underlying not just The Basic
Rule of extradition treaties but the entire law of treaties: “Every treaty in force is binding
upon the parties to it and must be performed by them in good faith.” Colombia’s one-country
treaty notion is at war with this bedrock concept. Article 26 requires reciprocity between the
parties (plural). If Colombia is not bound by the Treaty and is not a party to it, then it makes
no sense to say that the Treaty “is binding” on the United States or that the United States
must perform in good faith. The United States would just be contracting with itself.
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8. “A party may not invoke the provisions of its internal law as justification for its
failure to perform a treaty.” Id. art. 27. This means that the Ministry of Foreign Affairs is
incorrect when it states that the effects of its failure to ratify the Treaty “are exclusively of
internal nature and have the consequence that in the Republic of Colombia the treaty cannot
be applied, but they do not affect, the validity thereof.” DE54-1:8. This self-serving,
conclusory assertion is unsupported by any legal authority. In fact, there is no way that
Colombia’s clear refusal to be bound by the Treaty is “exclusively of internal nature” because
Colombia routinely refuses to extradite even violent criminals to the United States. Article
27 reaffirms the principle that a country’s conduct determines whether a treaty is in force.
9. Colombia’s words also show that the Treaty was never ratified. Colombia’s highest
court held the ratification unconstitutional because the Colombian president never signed it.
Article 46 of the Convention states that, under the circumstances, the Treaty is not in force:
A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its internal law of
fundamental importance.
It is beyond debate that the Colombian Constitution is an “internal law of fundamental
importance.” That the United States and Colombia have agreed that Colombia is not bound
by the Treaty removes all doubt that Article 46 was triggered. The State Department lawyer
contends that the failure of the Colombian president to personally sign the treaty is somehow
not a “manifest” violation of the Colombian Constitution, see DE37-1, but U.S. law indicates
that the failure of a head of state to sign a treaty means it was not ratified: “A state may
invoke only the following grounds to invalidate its consent to be bound by an agreement: (a)
an error as to a fact or situation which was assumed by that state to exist at the time of the
agreement and which formed an essential basis of its consent to be bound.” RESTATEMENT
§ 331(1). Because Colombia and the United States agree that the failure of the Colombian
president to sign the Treaty means it is not in force in Colombia, it is not in force at all.
10. Colombia again argues that the Treaty is in force in the United States because,
while Colombia did not ratify it, Colombia also did not repudiate it. Article 54 of the
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Convention disposes of this circular argument. It provides that a treaty can also be
terminated by mutual agreement: “The termination of a treaty or the withdrawal of a party
may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by
consent of all the parties after consultation with the other contracting States.” Colombia and
the United States ended the Treaty by agreeing that Colombia did not ratify it. The United
States has manifested its agreement by acquiescing in Colombia’s refusal to perform its
obligations under the Treaty. No more than this is needed to show the Treaty is not in force.
Colombia’s claim that its failure to ratify the Treaty is purely an internal or domestic
matter and that the Treaty is nonetheless in effect—but only in the United States—has no
support. This argument violates numerous provisions of international law, including the
accepted definitions of the words treaty, ratification, and party. The issue before this Court
is a straightforward question of United States law, which provides that a country’s conduct
is “controlling” on the question of whether a treaty is in effect. Terlinden, 184 U.S. at 285.
Nothing in the Vienna Convention undermines Terlinden’s holding. On the contrary, the
Vienna Convention is in accord with federal law on this point. Colombia’s position that it is
not at all obligated to extradite anyone to the United States means the Treaty is not in effect.
The Basic Rule of United States extradition treaties is that parties to them are “obligated to
comply with the request of another state party to that treaty ... .” RESTATEMENT § 475.
III. Whether this Court has jurisdiction over Colombia’s complaint is a purely legal
issue, not a political one.
The facts remain as they were at the initial hearing: Colombia does not observe the
Treaty in any way. That alone proves the Treaty is not in force. Nonetheless, Colombia and
the State Department insist that this Court cannot question their assertion that the Treaty
is in force only in the United States. Their argument violates the firmly established rule
against litigants manufacturing federal jurisdiction: “It is axiomatic that federal jurisdiction
can never be created by the parties. Even though a particular litigant or both litigants in a
case may for some reason desire to be in federal court, there is an obligation to admit the lack
of jurisdiction where it does not exist and to make inquiry when jurisdiction is uncertain.”
Fitzgerald v. Seaboard Systems RR Inc., 760 F.2d 1249, 1251 (CA11 1985).
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Because its diplomatic note only confirms that the Treaty is not in effect, Colombia
misstates the issue as “whether the Government of Colombia properly ratified the Treaty”
and argues that “is a non-justiciable political question that is solely within the purview of the
Executive Branch.” DE54:4. The issue before this Court is whether Colombia can invoke this
Court’s jurisdiction under a treaty that it admits it did not ratify and that it admits is not in
force in Colombia. Whether there is an extradition treaty in effect is a purely legal question
that every U.S. extradition court must answer. See, e.g., In re Extradition of Silva Peralta,
No. 15-MJ-3444-WVG, 2016 WL 4987483 (SD Cal. 19 Sep 2016) (listing, among the elements
an extradition court must find, “a valid extradition treaty is in force between the United
States and the requesting state”); In re Extradition of Mejuto, 14-M-515, 2014 WL 2710948
(ED Pa. 13 Jun 2014) (stating extradition court must find “that there is a valid extradition
treaty between the United States and Spain that is in force through appropriate enabling
legislation”) (emphasis added).
There is no question that Colombia did not properly ratify the Treaty. No one claims
that it did. How that undisputed fact affects jurisdiction is, of course, justiciable, and is a
question this Court must answer independently from the Executive Branch:
Under our Constitution, “the judicial Power of the United States” is “vested in
one supreme Court, and in such inferior Courts as the Congress may from time
to time ordain and establish.” Art. III, § 1. That “judicial Power ... extends to
... Treaties.” Id., § 2. And, as Chief Justice Marshall famously explained, that
judicial power includes the duty “to say what the law is.” Marbury v. Madison,
1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under
our legal system, determining their meaning as a matter of federal law “is
emphatically the province and duty of the judicial department,” headed by the
“one supreme Court” established by the Constitution. Ibid.; see also Williams
v. Taylor, 529 U.S. 362, 378–379 (2000) (opinion of Stevens, J.) (“At the core of
the judicial power is the federal courts’ independent responsibility—
independent from its coequal branches in the Federal Government, and
independent from the separate authority of the several States—to interpret
federal law”).
Sanchez-Llamas v. Oregon, 548 U.S. 331, 353–54 (2006) (brackets and parallel cites omitted);
see also Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 229–30 (1986) (“[I]t
is ‘error to suppose that every case or controversy which touches foreign relations lies beyond
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judicial cognizance.’ ... [T]he courts have the authority to construe treaties and executive
agreements, and it goes without saying that interpreting congressional legislation is a
recurring and accepted task for the federal courts.”).
Colombia’s non-justiciability argument has no support because neither Doe d. Clark
v. Braden, 16 How. (57 U.S.) 635 (1853), nor its progeny involved the circumstance this case
presents. In no case did a country take the position that, while it was not bound by a treaty,
another country was. Rather, in each case Colombia cites, a private litigant claimed a treaty
was not in force because of some technicality, even though the treaty had been consistently
observed by its signatories. See Braden, 16 How. at 657–58 (rejecting a person’s claim that
the treaty transferring Florida from Spain to the United States was technically defective in
a suit involving neither sovereign); Made in the USA Foundation v. United States, 242 F.3d
1300, 1302 (CA11 2001) (rejecting labor unions’ claim that NAFTA had to be ratified by the
U.S. Senate but was not); Marine v. Bush, 53 F. App’x 123, 124 (CADC 2002) (affirming
dismissal of a suit claiming “that Panama did not properly ratify” the treaty transferring the
Panama Canal to it); In re World War II Era Japanese Forced Labor Litigation, 164
F.Supp.2d 1153, 1158–59 (ND Cal. 2001) (rejecting Filipinos’ claim that the Phillipines did not
properly ratify the Treaty of Peace among Japan and 48 Allied nations).
This case presents a different issue altogether. This is not a case in which a person or
a union or some other private litigant contests a treaty that is being duly observed. This is a
case in which Colombia admits it does not observe the Treaty and that the Treaty is not the
law in Colombia, while insisting that the Treaty is the law in the United States and that the
United States is bound by it. Colombia has not cited a single case to support that argument.
Instead, it argues that this Court cannot question the State Department’s and the Ministry
of Foreign Affairs’ assertions that there is jurisdiction under the Treaty because that is non-
justiciable. Sanchez-Llamas refutes that claim because it holds that whether, under the
undisputed facts, the Treaty is in effect is an issue within “the federal courts’ independent
responsibility— independent from its coequal branches in the Federal Government” “to say
what the law is.” 548 U.S. at 353–54.
13
IV. The Judicial Branch cannot defer to the Executive Branch as to whether
jurisdiction exists over a complaint.
Federal courts interpret treaties just as they do the Constitution or federal
statutes—“independent from” the political branches. Sanchez-Llamas, 548 U.S. at 331.
Relying on cases saying that courts should defer to the signatory parties on the factual
question of whether a treaty was ratified, Colombia argues for deference on the legal
question of whether a treaty that indisputably was not ratified supports federal jurisdiction.
Colombia is wrong that this Court should defer to the State Department (or the Ministry of
Foreign Affairs) as to the legal effect of the Treaty under the undisputed facts. Colombia’s
insistence that “it is our Department of State’s view that controls,” DE54:10, conflicts with
Sanchez-Llamas and Colombia’s own authorities, which concerned whether a regime change
terminated a treaty that was properly ratified. See Terlinden, 184 U.S. at 288–89 (holding
that the U.S.-Prussia extradition treaty remained in effect after the German Empire’s
formation); Kastovera, 365 F.3d at 986 (holding that the U.S.-Czechoslovakia extradition
treaty remained in effect in the Czech Republic). Even in those cases, the key question was
whether the parties continued to adhere to the treaty, which Colombia does not do. See
Terlinden, 184 U.S. at 284 (emphasizing that both signatories consistently treated the treaty
as remaining in force [see DE39:6]); Kastnerova, 365 F.3d at 986 (“[W]e begin our analysis
by examining the conduct of the United States and the Czech Republic to determine whether
such conduct evinces an intent that the nations continue to be bound by the extradition
treaty.”) (brackets, ellipsis, citation omitted). There is no reason for deference because the
facts are undisputed. Colombia’s conduct confirms that the Treaty is not in effect.
Colombia’s only new case, United States v. Fernandez-Pertierra, 523 F.Supp. 1135
(SD Fla. 1981), did not involve any issue of treaty interpretation. It concerned an ambiguity
in the Trading With the Enemies Act, 50 U.S.C. App. § 1 et seq., in a prosecution for bringing
Cubans to Miami during the Mariel Boatlift. Id. at 1135–36. Judge Kehoe upheld the Act’s
constitutionality and, as additional support, noted the “long judicial tradition of sustaining the
exclusive power of the President in the sphere of international relations.” Id. at 1141. This
reasoning has no application because there is no ambiguity in the Treaty or in § 3184 and
14
because making treaties is not an “exclusive power of the President.” That power is shared
with the U.S. Senate. This Court cannot defer to the Executive Branch on a question of treaty
interpretation because that is “‘emphatically the province and duty of the judicial
department.’” Sanchez-Llamas, 548 U.S. at 354.
Sanchez-Llamas is as correct as it is binding. Before there was an extradition statute,
France requested an alleged forger’s extradition from then-Secretary of State James
Buchanan under a treaty in force in both countries. Secretary Buchanan recognized that,
under the Fourth Amendment, the federal government cannot arrest anyone without
probable cause to believe the person committed a crime specified in a federal law. He directed
the U.S. Attorney to get an arrest warrant from a judge. The district court later agreed with
Secretary Buchanan and held that the United States has no power to arrest or extradite
anyone without a judicial finding of probable cause to believe he committed a crime listed as
an extraditable offense under a binding extradition treaty:
[I]t is manifest that the provision demanding the apprehension and
commitment of persons charged with crimes cannot be carried into effect in
this country, but by aid of judicial authority. Not only in the distribution of the
powers of our government does it appertain to that branch to receive evidence
and determine upon its sufficiency to arrest and commit for criminal offences,
but the prohibition in the constitution against issuing a warrant to seize any
person except on probable cause first proved necessarily imports that issuing
such warrant is a judicial act.
In re Metzger, 17 F.Cas. 232, 233 (S.D.N.Y. 1847). The Supreme Court affirmed, commending
Secretary Buchanan for involving the courts: “Whether the crime charged is sufficiently
proved, and comes within the treaty, are matters for judicial decision; and the executive,
when the late demand of the surrender of Metzger was made, very properly as we suppose,
referred it to the judgment of a judicial officer.” In re Metzger, 46 U.S. (5 How.) 176, 188–89
(1847). Congress codified Metzger the next year. See 9 Stat. 302, 30 Cong. Ch. 167 (12 Aug
1848). Today’s § 3184 is substantially the same as that 1848 precursor statute.
Metzger shows that Sanchez-Llamas correctly held that courts have a constitutional
duty to examine the legality of extradition requests. Metzger also shows that, from the
earliest extraditions, all three branches of the United States government recognized that in
15
this country there can be no extradition without a neutral and detached determination that
the extradition is authorized by a mutually binding treaty. See also Terlinden, 184 U.S. at 280
(stating that extradition court had jurisdiction under the extradition statute only “if there was
a treaty”); Benson, 127 U.S. 457, 463 (1888) (referring to the extradition statute as the “act
of congress conferring jurisdiction upon the commissioner, or other examining officer”).
President Buchanan understood that, the Metzger district judge agreed, the Supreme Court
agreed, and Congress codified the result. Colombia’s deference argument has no support.
CONCLUSION
Jurisdiction in this Court requires “a treaty or convention for extradition between the
United States and any foreign government,” 18 U.S.C. § 3184, and none exists. No federal
court has ever held that federal jurisdiction exists under an extradition treaty that the
requesting state’s head of state says was never properly ratified, that its Ministry of Foreign
Affairs says was never properly ratified, that its highest court of law (twice) held was never
properly ratified, and that it does not in any way observe. It is undisputed that all of these
things are true in this case. There is no jurisdiction.
Respectfully submitted,
_____________________________________ _____________________________________
David Oscar Markus Ricardo J. Bascuas
Florida Bar No. 119318 Florida Bar No. 093157
Lauren Doyle 1311 Miller Drive
Florida Bar No. 117687 Markus/Moss Coral Gables, Florida 33146
PLLC 305-284-2672
40 N.W. Third Street Penthouse One
Miami, Florida 33128
305-379-6667
/s/ Marc David Seitles
Marc David Seitles
Florida Bar No. 0178284
Seitles & Litwin PA
40 N.W. Third Street, Penthouse One
Miami, Florida 33128
305-403-8070
16
CERTIFICATE OF SERVICE
This notice was filed electronically on 6 January 2017 through CM/ECF and served on
AUSA Robert Emery, counsel for the Republic of Colombia, through that system.
_____________________________________
David Oscar Markus
17

Response Case No. 16-23468

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Case 1:16-mc-23468-UNA Document 56 Entered on FLSD Docket 01/06/2017 Page 1 of 17

UNITED STATES DISTRICT COURT

RESPONSE TO THE REPUBLIC OF COLOMBIA’S

I. The statute does not authorize jurisdiction under a one-country treaty.

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