Article 6 of the United States -South Korea
Extradition Trea ty ("Treaty") provides that
"[e]xtradition may be denied under this Treaty when
the prosecution or the execution of punishment of the
offense for which extradition is requested would have
been barred because of the statute of limitations of the
Requested State had the same offense been committed
in the Requested State." The rest of Article 6 explains
that the period in which a person flees from justice
does not count towards the running of the statute of
limitations and that any acts or circumstances that
would otherwise suspend the expiration of t he
limitations period of either state shall be given effect.
Finally, Article 6 mandates that the requesting state
provide a written statement of the relevant provisions
of its statute of limitations, which shall be conclusive.
Petitioner Yoo Hyuk Kee ("K eith Yoo" or "Mr. Yoo" )
maintains that , consistent with Article 6, his
extradition is barred under the Treaty because the
statute of limitations has lapsed. The Government
concedes that time has lapsed. Breaking with
Supreme Court precedent on treaty inter pretation,
the U.S. Court of Appeals for the Second Circuit held
below that, due to the word "may," Article 6 is a
discretionary clause for the Secretary of State to
implement a s it so chooses , rather than a mandatory
bar for the judiciary to implement uni formly.
The questions presented are:
A. Does interpreting Article 6 of the Treaty as a
discretionary issue for the Secretary of State to
consider, rather than a mandatory bar for the
judiciary to implement uniformly , conflict with
Supreme Court precedent on treaty and
statutory interpretation because such an
interpretation undermines altogether the well established purpose of limitations provisions,
thus rendering all of Article 6 meaningless?
B. Does interpreting Article 6 of the Treaty as
discretionary also conflict with Supreme Court
precedent on treaty and statutory
interpretation because it renders language in
other articles of the Treaty superfluous?
C. Even if interpreting Article 6 of the Treaty as
discretionary is on e possible reading of the
Treaty's language, is that interpretation
permissible given that leaving the issue of
timeliness to the Secretary of State dilutes the
judiciary's role in extradition proceedings and
is irreconcilable with protecting individual
liberty?

Whether interpreting Article 6 of the U.S.-South Korea Extradition Treaty as a discretionary issue for the Secretary of State conflicts with Supreme Court precedent on treaty and statutory interpretation