Man continues to fight his extradition to Washington state on rape charges
Pago Pago, AMERICAN SAMOA — A written decision was issued by the Trial Division of the High Court of American Samoa last week in the case of Tongan national, Paul Harman against the Governor of American Samoa, Gov. Lolo Matalasi Moliga, confirming the governor’s authority to issue arrest warrants under the extradition act.
The 8-page decision has the High Court now formally recognizing that American Samoa (AS) has been an organized territory of the United States when Congress passed 48 USC 1662(a) in 1983.
After denying Harman’s petition last month, Chief Justice Michael Kruse said the court will issue something in writing to reflect their decision, to deny the defense’s petition.
Harman is represented by private attorney Charles V. Alailima, while Assistant Attorney General William F. Ledoux is appearing on behalf of Gov. Lolo.
The decision states that on Oct. 25, 2018, the Governor of the State of Washington (WA) sent a written demand to Gov. Lolo requesting the territory to extradite Harman to WA to stand trial for first degree rape of a child, and child molestation in the first-degree.
The demand included copies of the information, with the supporting affidavit and certification for determination of probable cause, together with a copy of the warrant for Harman's arrest, issued out of the Superior Court of WA for King County.
On Nov. 14, 2018, Gov. Lolo in his capacity as governor of American Samoa, signed pursuant to A.S.C.A 46.0909 a warrant, directed to the Attorney General and the commissioner of Public Safety, for the arrest and extradition of Harman.
The warrant was served Nov. 16th on Harman, whereupon he was taken into custody to await extradition at the Territorial Correctional Facility (TCF). On Nov. 19th, Harman requested a forthwith hearing to fix a reasonable time to apply for a writ of habeas corpus. A hearing was set for Nov. 28.
FAILURE TO ENSEAL
Harman contends that a writ of habeas corpus should be granted because (1) the warrant lacked the territorial seal and (2) Gov. Lolo lacked the “executive authority” to issue a warrant of arrest.
Harman argues that the arrest warrant was insufficient because Gov. Lolo failed to place a territorial seal on the warrant.
“The purpose of affixing the territorial seal to the extradition warrant is to attest to the genuineness of the governor’s signature and is not an indispensable requisite for extradition,” according to the court decision.
EXECUTIVE AUTHORITY TO ISSUE EXTRADITION WARRANTS
Harman asserts that Gov. Lolo does not have the executive authority to issue an arrest warrant for extradition because executive authority is vested in the Secretary of the Interior, the President of the United States, and ultimately, Congress.
The court decision notes that this argument is, at best, dated; it simply does not square with the realities of today in Fagatogo, which is the established “seat of government.”
On Feb. 20, 1929, the cessions of Tutuila and Manu’a were finally “accepted, ratified, and confirmed” by Congress retroactive “as of to April 10, 1990, and July 16, 1994, respectively.”
It says perhaps out of regard for those provisions in the cession, which require, among other things, “respect and protect[ion] , of all people dwelling in Tutuila to their lands, and that the rights of all people concerning their property according to their customs shall be recognized.
“Congress did not immediately enact an Organic Act for AS following ratification. Rather, Congress was content to leave this exercise to another day and, it seems in hindsight, to allow the natural evolvement of AS’s organic law, as we find it today,” the court decision says.
The judicial authority of the territorial court, the legislative authority of the Fono, and the executive authority of the governor of American Samoa are derived from 48. U.S.C.S. 1661(c), which reads; “Until Congress shall provide for the government of such islands, all civil, judicial, and military powers shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct.
"In pursuance of this congressional grant of authority, the President of the US delegated administrative responsibility [first to the Secretary of the Navy and then] to the Secretary of the Interior, who in turn vested executive authority in the governor of the territory. Under the guidance of the Secretary of the Interior, the people of AS subsequently adopted a constitution in 1960, which was revised in 1967.
"In 1993, Congress gave formal recognition to the territory’s constitution when it enacted 48. U.S.C.S. 1662(a), whereby it entrenched the local constitution beyond unilateral executive repeal or amendment.
“Amendment of, or modification to, the constitution of AS, as approved by the Secretary of the Interior pursuant to Executive Order 10264 as in effect Jan. 1, 1983, may be made only by Act of Congress,” the decision says.
“In our view, Congress implicit ratified, or gave effect to, the constitution as the organic law of the territory when it removed amendment and modification power from the Secretary of the Interior. Moreover, in acknowledging the constitution, it follows that Congress also acknowledged the governing authority in AS being that the constitution entrusts legislative authority in the Fono,” the decision says.
According to the court, the Fono, in carrying out its legislative duties, adopted the Uniform Criminal Extradition Law, which has been adopted by 44 states, Puerto Rico, and the Virgin Islands, including A.S.C.A 46.0904 which states, “It is the duty of the Governor of this Territory to have arrested and delivered up to the United States Government authorities or executive authority of any other state of the United States Government, any person charged in that state or by the United States Government with treason, felony or other crime, who has fled from justice is found in this Territory.”
The court stated that the plain reading of A.S.C.A 46.0904 clearly informs us that the Fono imposed a duty, and thereby granted the authority, on the governor of the territory to abide by any lawful request from another state of the United Staes to extradite a person found in the territory.
Therefore, according to the court, for the reasons stated above, we hold that Gov. Lolo "has the authority, and is duty bound, to extradite any person found within the territory upon lawful request."
Harman contends that the governing authority of a U.S. territory is derived from the plenary authority of Congress and not from any independent express or implied sovereignty, citing in “Commonwealth of Puerto Rico v. Sanchez Valle. 136 S. Ct. 1863, 2016”.
"The argument is puzzling. First, the governing authority of the territory is, indeed, derived from Congress in exercise of its plenary power; secondly, our review of Sanchez Valle reveals that this case involved double jeopardy concerns; whether Puerto Rico is considered a separate sovereign.
“However, the question before us here, as presented by petitioner, is not whether the territory is a separate sovereign but whether the federal government has delegated its executive authority to the governor of the territory. We answer affirmatively. Sanchez Valle is inapposite,” the decision says.
The court noted that Harman was "found in the territory, and WA made a proper request."
Accordingly, says the court, we find that Gov. Lolo "acted properly in issuing an arrest warrant for petitioner in order to turn him over to Washington’s agent. The petition for writ of habeas corpus and for the orders setting aside warrant and discharge from custody is denied,” the court says.
The decision was signed by Chief Justice Michael Kruse, and Associate Judges Mamea Sala Jr and Tunupopo Alalafaga Tunupopo.
Harman is still in custody awaiting his extradition next week. Samoa News understands that a Sheriff will be here next week to escort him back to WA on Dec. 20.
Samoa News will report on the court’s decision as applied to the current administration’s argument that American Samoa and its people should be treated differently from all the other territories which have organic acts.