News from the Empire

Robert Patterson, federal court judge for the Southern District of New York State, ordered U.S. Attorney Preet Bharara to provide a statement in writing — no later than the 25th of this month — on the legality of the request for extradition formulated against Alfonso Portillo, who had seriously questioned it in a very novel action of habeas corpus. Bharara belongs to the same office that is now trying to save face in light of the shaky accusation made against Dominique Strauss-Kahn. The resolution preserves the right of the actor to challenge the prosecutor’s arguments.

The admission of this case situates itself as a landmark case in American jurisprudence because it involves the abandonment of the hitherto prevailing theory that any person located outside of U.S. territory could request a [writ of] habeas corpus from a United States judge. The decision made by Judge Patterson has broken the record prevalent until now, and is based on the novel theory of “implicit detention” (constructive detention). According to this theory, when the authority of a foreign country — Guatemala, in this case — arrests a person pursuant to an extradition request received from a U.S. official, the state is required to act “on account and the risk” of the requesting state — that is, the United States of America — and not motu proprio [of its own accord]. If it hadn’t mediated this U.S. petition, Guatemala never would have arrested Alfonso Antonio Portillo Cabrera, as covered in the Extradition Procedure Regulatory Law, in treaties, and in the Convention that was wrongly invoked by attorney Bharara, as well as the U.S. embassy accredited in Guatemala.

The only point in question is whether the petition for extradition followed American law. Did the United States government make any reservation to the United Nations Convention against Corruption on the crime of money laundering? That is it. Determining whether or not a crime was committed is far removed from habeas corpus, as some local “experts” confirm. The report from the Office of the Prosecutor will join one from the State Department; both allow for establishing the illegality of the request for extradition and the responsibility attributed to Ambassador Stephen McFarland for having presented Guatemala with inaccurate reports on the law of his country. This opens the possibility to infer against him and his government the inherent responsibilities of their abuses and caused damages.