US embassy cable - 05NASSAU917

C O N F I D E N T I A L SECTION 01 OF 03 NASSAU 000917 
 
SIPDIS 
 
STATE TO INL/LP 
STATE TO WHA/CAR 
STATE FOR L/LEI 
JUSTICE FOR OIA 
DEA FOR O/A AND O/I 
 
E.O. 12958:  DECL:  05/12/2015 
TAGS: BF, KCRM, PGOV, SNAR, PREL, Narcotics - OPBAT 
SUBJECT:  BAHAMIAN COURT DECISION HALTS 
EXTRADITION PROCESS 
 
 
Classified by: Charge Robert M. Witajewski 
for reasons 1.4 (B) and (D) 
Summary 
----------- 
1. (C)  A surprising May 10, 2005, decision from Supreme 
Court Justice Jon Isaacs has ruled the U.S. - Bahamas 
Extradition Treaty valid but constitutionally unenforceable 
due to a failure on the part of the Bahamian government 
to obtain parliamentary approval for public funds expended 
during the extradition process.  The Government will 
request an expedited hearing next month of Judge Isaacs' 
decision by the Court of Appeals.  It is likely that the 
losing side will appears to the Privy Council in London, the 
country's highest court.  By questioning the 
implementation of the existing Extradition Treaty between 
the United States and The Bahamas, this decision has 
put in temporary suspense the extradition process to 
the United States.  Fortunately, no pending extradition 
requests are near their final administrative or judicial 
stages.  Charge and Narcotics Affair Officer 
visited the Director for Public Prosecution and the 
Attorney General's Chief Counsel to discuss the 
implications of Judge Isaacs' ruling and the Government's 
next steps.  They suggested waiting for the Appeals 
Court ruling before sending new extradition requests 
to The Bahamas. Officially, the Government of the 
Bahamas, has expressed their commitment ot the 
Extradition Treaty. End of Summary 
 
Implementation of Treaty on Hold 
----------------------------------------- 
2. (U)  In the hearings for the extradition case against 
Trevor Roberts, Devroy Moss, Sheldon Moore, 
Brian Deal, Lynden Deal, Shanto Curry and 
Gordon Newbold- six of the twelve defendants 
arrested as part of the Operation Busted Manatee 
a joint counter drug effort between US and Bahamian law 
enforcement officials- Bahamian Supreme Court 
Judge Jon Isaacs ruled in favor of the defendants on 
a Constitutional application filed that puts in question 
the implementation of The Extradition Act of 1990. 
 
3. (C)  In a decision that Bernard Turner, Director 
of Public Prosecutions characterized as "astonishing", 
Judge  Isaacs ruled that, although the Foreign 
Ministry was validly empowered to negotiate 
and conclude the treaty under the Constitution, 
all expenditure of public funds required an act 
of Parliament.  The judge concluded that Article 18 
 of the Treaty (requiring each State to bear 
the expenses of an extradition request made 
by a Requesting Party) created a permanent financial 
obligation that must be appropriated by Parliament under 
the Bahamian Constitution. 
 
4. (U)  In his 57-page decision, Judge Isaacs 
determined that expenses incurred during the 
extradition process "can properly be regarded 
as a debt or obligation of another" and that as 
such "a permanent imposition on public funds or the 
Consolidated Fund must be included in an 
Appropriation Bill introduced in the House of 
Assembly before the commencement of the 
financial year." He continued "I hold the view 
that where a permanent financial charge on public 
funds is to be made, the laying of the treaty 
should be done before it is entered into." 
The Judge accepted the defendant's petition 
that the Extradition Treaty of 1990 and the 
Extradition Act of 1994 while validly entered 
into, could not be implemented because "a 
permanent financial charge on public funds" was 
never approved by Parliament. 
 
5. U)  As soon as the Judge issued the decision, 
the Attorney General's office requested a stay 
pending an appeal. 
 
Gauging the Impact:  On the eye of the legal storm 
--------------------------------------------- 
6. (C)  In a meeting on May 11 with the Director 
of Public Prosecution, Bernard Turner, and Chief 
 Counsel Francis Cumberbatch,  Charge and NAO 
discussed the far reaching implication of this 
decision if it stands.  The Attorney General will 
request to have the Court of Appeals hear the 
matter on an accelerated basis in June-before 
it adjourns for its summer recess. 
 
7. (C)  Turner acknowledged that the decision 
took them by surprise, but said he was fully 
confident of having it overturned on appeal. 
He admitted however, that the losing side 
in the Court of Appeals would appeal to the 
Privy Council in London.  Although he 
downplayed the impact of Judge Issacs' decision 
on other ongoing extradition cases 
because none are in their final administrative 
or judicial stages, Turner underlined that attorneys for 
everyone fighting extradition cases "will be 
watching with interest the outcome of this case." 
 
8. (C)  As long as the Judge's ruling stands, 
the Director of Prosecution suggested that 
it is not clear that Foreign Minister Fred Mitchell 
would be inclined to sign an "Authority to 
Proceed" that authorizes the Attorney 
General to proceed with any new extradition 
requests from the U.S.  In the Bahamian system, 
the Foreign Minister's signature is needed at two 
stages of the process: first, to authorize 
the Attorney General to initiate any extradition 
procedures in response to a U.S. request 
(the Authority to Proceed) and second, when 
all legal and administrative procedures have 
been concluded and the Bahamian government 
signs the document that authorizes the 
detainee to be handed over to the U.S. government 
(the Warrant to Surrender). 
 
Official reply from the Bahamian Government 
------------------------------------------ 
9. (U)  The Ministry of Foreign Affairs 
forwarded to the Embassy diplomatic note 
number 127, dated on May 11, and it notes: 
(begin quote) The Ministry of Foreign Affairs 
has the further honour to advise that the Bahamas is 
committed to the Extradition Treaty between 
the United States and The Bahamas,  The Office 
of the Attorney General has also advised 
that an appeal has been filed and the matter 
is under review.  The Ministry of Foreign 
Affairs has also been informed by the Office 
of the Attorney General that the Judgment has 
been stayed by Order of the Court.  As a consequence, 
the status quo ante remains in respect of the 
Extradition Treaty between our two Countries 
and the Ministry waits the outcome of the judicial process." 
 
Comment 
------------- 
10. (C)  With twenty-six extradition requests 
pending at different stages in the Bahamian court 
system, the potential impact of this decision, 
if it stands, is far-reaching.  This is not the 
only "astonishing" ruling Judge Jon Isaacs has 
made. In the extradition case of alleged drug 
kingpin Samuel "Ninety"  Knowles, indicted by 
the United States in December 2000, the 
Privy Council reversed Judge Isaacs ruling 
granting Knowles habeas corpus commenting 
in its majority decision that "substance rather 
than form governs. Semantics must yield to 
common sense" and that the judge had come 
to "an astonishing conclusion and erred" in 
granting the defendant habeas corpus in a 
way that was unappealable by the Government. 
The Attorney General 's senior attorneys are 
confident that this latest Isaacs' decision will 
similarly not withstand scrutiny by a higher court. 
WITAJEWSKI