under procedures that concededly violate American notions of constitutional fairness [the petitioner in Neeley had argued, without contradiction by the government, that his trial in Cuba would be conducted without an indictment, without the protection of a jury trial, without the right to confrontation, and without the presumption of innocence], there is no constitutional requirement that habeas corpus be available to a United States citizen who is returned to this country after conviction and exhaustion of direct post-conviction review ...

C. Far from suspending the writ, the prisoner exchange treaty neither reduces the scope of Federal habeas corpus nor restricts the jurisdiction of Federal courts, and in no way therefore implicates Article I, section 9, clause 2.

Congress, never having established post-conviction Federal habeas corpus jurisdiction over foreign convictions, did not take away anything by approving the treaty and its enabling legislation. Since no statutory or constitutional right was abrogated by the treaty, no contraction of the writ resulted. The treaty did not alter the attributes of the writ, let alone suspend it.

As a practical matter, petitioners had no right to habeas corpus while they were physically confined in Mexican prisons, and legally under the control of Mexican authorities. As to them, Congress has taken nothing away, legally or in any other respect. Review of their convictions by American courts was no more available prior to their transfer than it is now.

The measure of habeas corpus relief available to prisoners transferred pursuant to the treaty is fully consistent with the Suspension Clause. Petitioners may challenge the validity of their confinement to the extent that they attack the circumstances of their transfer and, thereby, the legality of their present confinement, raising such issues as the voluntariness of their consent or the manner in which their sentence is executed once they reach this country. Waley v. Johnston, 316 U.S. 101 (1942). The treaty certainly does not preclude access to the United States District Court, and provides a fully adequate and effective remedy against illegal executive detention. No challenge to the jurisdiction of the United States Magistrate [ante], or the manner of execution of their sentences, has been raised by any of the petitioners here.

The second portion of the Government's memorandum argued that the treaty and the enabling legislation did not deny the petitioners either equal protection of the laws or due process, and that none of any alleged implication of U.S. law enforcement agents (in funding and training law enforcement activities in Mexico) justified exercise of Federal courts' supervisory power in order to avoid a "taint" of the American legal system.

Sec. C, arguing the foreign policy aspects of the case, is reproduced below:

C. The judgment of Congress as to the Constitutional issues raised by the treaty is entitled to a measure of respect, especially in light of the important foreign policy interests at stake, and the practical and political obstacles to review of Mexican convictions.

1. Congress considered thoroughly the Constitutional issues raised by the treaty and enabling legislation.

In any area of legislation, regardless of subject matter, the judgment of Congress as to the constitutionality of its actions is entitled to some degree of respect. As to this treaty and statute, the Constitutional issues were exhaustively considered by the legislative branch. Throughout their deliberation, the pertinent congressional committees were sensitive to potential violations of Constitutional provisions, most particularly of the Suspension Clause. See e.g., Implementation of Treaties for the Transfer of Offenders To or From Foreign Countries: Hearings on S. 1682 before the Subcomm. on Penitentiaries and Corrections of the Senate Comm. on the Judiciary, 95th Cong., 1st Sess., 43, 208-209, 274 (1977).

The House Committee on the Judiciary concluded as to the constitutionality of proposed section 2256:

"Some question has been raised as to whether this is an improper limitation or (sic) an individual's right, under the United States Constitution to

seek a writ of habeas corpus. This provision does not, in any way, suspend the writ of habeas corpus. It merely states that certain types of challengesto foreign convictions and sentences-may not be brought in American courts.

"Witnesses before the Subcommittees of both the House and Senate Judiciary Committees were unanimous that such a provision is constitutionally valid. First, it is important to note that these provisions were considered essential in protecting the integrity of the judicial process of the respective countries and in securing approval for prisoner exchange treaties in the past and presumably in the future.

· ...

"Second, the limitation does not affect any existing right of an offender.

....

"Third, under the provisions of this Bill the offender will be made fully aware of the fact that one of the conditions of the transfer is that the transferring state retains exclusive jurisdiction over challenges to the sentence or conviction . . .

The Senate Committee on the Judiciary, and the Senate Committee on Foreign Relations also specifically considered the Constitutional issues and concluded that the treaties and legislation passed muster. See S. Rept. No. 95-435, 95th Cong., 1st Sess. 13 (1977) ("Based upon competent testimony, the Committee finds that the legislation is sufficiently grounded in constitutional law to warrant enactment."); S. Rept. No. 95-10, 95th Cong., 1st Sess. 9 (1977) ("All the legal opinions received by the Committee concur in the constitutionality of the treaties.")

2. The congressional judgment as to the constitutionality of these measures is entitled to deference in light of the foreign policy interests at stake, as well as the practical and political difficulties of reviewing convictions in Mexican courts.

Implementation of the treaty followed lengthy negotiations between the Mexican and United States Governments, as well as thorough deliberation by Congress. Critical foreign policy interests were recognized to be at stake: discussions leading to this agreement and similar agreements with other governments arose from diplomatic tensions related to the detention of Americans abroad. See letter from Secretary of State Henry Kissinger to the Speaker of the House of Representatives (November 10, 1976). Prisoner transfer treaties presently are in force between the United States and three countries— Mexico, Canada and Bolivia. Negotiation of a fourth treaty with Peru has been virtually completed, and negotiation of a treaty with Turkey on this subject began during the week of August 21. It is the intention of the United States Government to negotiate additional treaties with other countries providing for the transfer of offenders. All of these treaties contain provisions similar or identical to article VI of the Mexican-American treaty, specifying that the transferring state shall have exclusive jurisdiction over any proceedings, regardless of their form, intended to challenge, modify or set aside sentences handed down by its courts. Without exaggeration, the conclusion of these treaties represents an excruciatingly difficult exercise of American diplomacy, balancing a wide variety of foreign policy objectives regarding each country.

The presence of such significant foreign policy interests is a powerful reason for an American court to "move with circumspection." Romero v. International Terminal Operating Co., 358 U.S. 354, 383 (1959). While the act of state doctrine may not be determinative here, this case would appear to be a paradigm for its rationale: the area is one that "touches... sensitively the practical and ideological goals of the various members of the community of nations," and raises the likelihood that "the Executive might be embarrassed in its dealings with other countries" with consequent detriment to American interests. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 430, 432, 436 (1964); Underhill v. Hernandez, 168 U.S. 250, 262 (1898). Considerations that support the doctrine apply forcefully here: limitations on the fact-finding abilities of the judicial forum, as well as of the courts' power to enforce compliance, and the uncertain overall impact of judicial decisions on the fabric of the nation's foreign policy relationship.

The traditional deference shown by courts to the Executive in the area of foreign policy is especially appropriate here, where substantial contact be

tween judges and Mexican authorities in reviewing Mexican convictions would jeopardize policies formulated and pursued by the President and the Department of State. See Banco Nacional de Cuba v. Sabbatino, supra, 376 U.S. at 431-432. The mere fact of review by an American court might be perceived by Mexico as a grave insult; the reversal of a conviction would be seen certainly as a severe criticism, regardless of whatever comments [were] made in the American court's opinion. The entanglement of one nation's court system with that of another was expressly sought to be avoided by article VI of the treaty, for foreign policy reasons assessed by the executive and legislative branches to be important.

The practical difficulties of reviewing Mexican convictions are equally ominous. Interpretation of Mexican law, in all its nuances, would present a formidable task. Obstacles to locating and obtaining evidentiary materialsincluding arrest and trial records, witnesses who may reside in Mexico, etc.— might well be insuperable. Mexican authorities will not be eager to cooperate with American courts where the outcome may be to impugn the integrity of particular convictions, and possibly their entire legal system. In the event convictions are reviewed, cases where violations of law are found will raise the question of what remedy to impose. A trial de novo will be impractical. 'Release of the prisoner, however, will be extremely unpalatable in many cases for obvious reasons. In light of such difficulties, surely caution should be a watchword.

The third, and final, portion of the memorandum on behalf of the United States Government argued that the applicants for writ had knowingly and intelligently waived any right to attack their Mexican convictions in U.S. courts after their transfer, and detailed the procedures carried out under the enabling legislation, P.L. 95-144, Oct. 28, 1977, 91 Stat. 1212, codified in part at 18 U.S.C. 4100-4115 (1976, Supp. I, 1977).

The memorandum also referenced the statement of Herbert Wechsler in Hearings on the Penal Treaties with Mexico and Canada before the Senate Committee on Foreign Relations, 95th Cong., 1st sess. (1977), pp. 90–91.

By notice of action, June 28, 1978, Melendez Gauthier had received a presumptive parole date of Mar. 12, 1979; by notices of action, July 18, 1978, Velez and Caban had received parole dates of Aug. 18, 1978, or sooner.

See, further, the 1977 Digest, pp. 459-463, and the 1976 Digest, pp. 282–292.

By a memorandum dated June 23, 1978, the Director of the Federal Bureau of Investigation, William H. Webster, asked Secretary of State Cyrus R. Vance whether there existed a specific policy regarding access to foreign flag vessels, among other places, by police and fire departments, and other emergency personnel, during emergency situations such as fires, bomb threats or terrorist activities. Anthony C. E. Quainton, Director of the Department's Office for Combatting Terrorism, replied on behalf of the Secretary, in a letter dated September 11, which said in regard to vessels:

With respect to the question of access to foreign flag merchant vessels within U.S. ports, it is a generally accepted principle of international law, and has been the U.S. position over time, that nations have, in general, the right to exercise civil and criminal jurisdiction over foreign merchant vessels within their ports. This right is conditioned upon an exercise of jurisdiction consistent with the normal requirements of domestic law. Thus, with respect to foreign merchant vessels within U.S. ports, any searches or arrests made on board such vessels must comport with constitutional due process requirements. In this connection it is the duty of the Master of the vessel not to resist the arrest of persons in such cases, or to question the validity of warrants or orders. Presumably, in emergency situations such as a fire or a bomb threat aboard a foreign merchant vessel within a U.S. port, United States authorities may take appropriate action consistent with whatever actions would be taken in a similar case if the vessel was a U.S. flag vessel. However, as a matter of comity, it would be appropriate for local authorities to seek the consent of the Master or other appropriate authority before boarding such foreign flag vessel. In the absence of such consent, law enforcement or emergency authorities should take action to board the vessel only if the situation is of a serious nature or poses a threat to the safety of the port.

The situation regarding a war vessel of another nation within a U.S. port is entirely different. In this case U.S. officials have no right to board and may only take action to require such war vessel to leave the port.

Dept. of State File No. P78 0142-1534; for corrected text, Sept. 28, 1978, see Dept. of State File No. P78 0153-1026.

The memorandum from Director Webster had referred to problems experienced by the San Francisco Police and Fire Depts. in connection with a bomb threat involving the Soviet passenger vessel, Lermontov, on Mar. 3, 1978, while the vessel was docked at the port of San Francisco. The captain of the vessel had not been immediately available; and the officer in charge would not permit the Police and Fire Dept. personnel to enter the vessel, nor would he evacuate the vessel. While it was later determined that the suspected bomb was merely a fishing buoy that had become entangled in the steering mechanism, the authorities believed that if a real bomb had detonated, numerous passengers and crewmen would have been injured or killed.

Dept. of State File No. P78 0102-0608.

Deepwater Ports

By exchanges of notes at Washington between the United States and Norway, July 11, 1978 (TIAS 9275; entered into force July 11, 1978), between the United States and Denmark, August 17 and 22, 1978 (TIAS 9278; entered into force August 22, 1978), and between the United States and Sweden, August 17 and 22, 1978 (TIAS 9277; entered into force August 22, 1978), agreements were entered into between the United States and each of the other countries named, respectively, that vessels registered in or flying the flag of the country in question and personnel on board such vessels utilizing the Louisiana

Offshore Oil Port (LOOP, Inc.), a deepwater port facility established under the Deepwater Port Act of 1974 for the purposes therein stated, should, whenever present within the deepwater port's safety zone, be subject to the jurisdiction of both the United States and the state of the flag, on the same basis as when in coastal ports of the United States. The respective agreements were not to apply to vessels registered in or flying the flag of the other country, which merely passed through the deepwater port's safety zone without calling at, or otherwise utilizing, the port.

See, further, in regard to the Louisiana Offshore Oil Port, the 1977 Digest, pp. 596-599, and the 1976 Digest, pp. 374–376.

Boarding and Search on High Seas

U.S. Flag Vessels

In United States v. Warren, 578 F.2d 1058 (5 Cir. 1978), the United States Court of Appeals for the Fifth Circuit in an en banc review reversed, by 8 to 6, a 1977 ruling of its three-judge panel that had held the boarding of an American shrimping vessel, the interrogation of its crew, and the search of the vessel unconstitutional (United States v. Warren, 550 F.2d 219). In its decision of August 24, 1978, the Fifth Circuit held that the United States Coast Guard had been authorized under American law to stop and board the vessel, which at the time had been approximately 700 miles from the United States, sailing southward between Haiti and Cuba in the Windward Passage, and to question her passengers and captain, that the participation of an agent from the United States Drug Enforcement Administration and of an agent from the United States Customs Service had not diminished the Coast Guard's authority in this respect, and, further, that the scope of the interrogation of the defendants had been justified by the circumstances of the case. Writing for the Court, Circuit Judge Gerald B. Tjoflat analyzed the Coast Guard's authority to board the vessel, the interrogation, and the search, in part:

(footnotes selectively omitted)

III. Analysis

A. Authority for the Boarding of the Stormy Seas, the Interrogation, and the Search

Federal law authorizes the Coast Guard to

"make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and sup