                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ARTHUR JOHN PATTERSON,                         No. 13-56080
           Petitioner-Appellant,
                                                 D.C. No.
                   v.                      2:12-cv-09960-ODW

 BARBARA WAGNER, Warden,
          Respondent-Appellee.                    OPINION


        Appeal from the United States District Court
            for the Central District of California
         Otis D. Wright II, District Judge, Presiding

                 Argued and Submitted
         November 21, 2014—Pasadena, California

                        Filed May 4, 2015

   Before: William A. Fletcher and Jay S. Bybee, Circuit
        Judges, and David A. Ezra, District Judge.*

                 Opinion by Judge W. Fletcher




  *
    The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
2                    PATTERSON V. WAGNER

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s dismissal of Arthur
Patterson’s habeas corpus petition challenging a magistrate
judge’s order certifying him for extradition to South Korea
for prosecution for murder.

     Patterson argued that his extradition would violate the
1998 extradition treaty between the United States and South
Korea because his prosecution would be barred by the statute
of limitations in the United States, and thus would violate the
treaty’s lapse-of-time provision. The panel held that the
treaty’s lapse-of-time provision, which states that extradition
“may be denied” when the prosecution would have been
barred by the statute of limitations in the United States, does
not impose a mandatory bar to extradition.

   Patterson also argued that his extradition would violate
the double-jeopardy provision of the Status of Forces
Agreement (SOFA) governing American military personnel,
and their dependents, in South Korea. The panel disagreed
with the premise that rights conferred by the SOFA may be
enforced by the judiciary to block extradition.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  PATTERSON V. WAGNER                        3

                         COUNSEL

Craig Anthony Harbaugh (argued), Isaacs/Friedberg, LLP,
Los Angeles, California, for Petitioner-Appellant.

Nancy Spiegel (argued), Assistant United States Attorney,
Los Angeles, California, for Respondent-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    As a teenager, Arthur Patterson was convicted in a South
Korean court of destroying evidence in connection with a
murder. After serving his prison term, Patterson left Korea
for the United States. The South Korean government now
seeks to prosecute him for the murder itself and requests that
the United States extradite him. Over Patterson’s objections,
a magistrate judge certified him for extradition. Patterson
filed a petition for a writ of habeas corpus to challenge the
certification order. The district court denied Patterson’s
petition.

    Patterson argues that his extradition would violate (1) the
extradition treaty between the United States and South Korea
and (2) the Status of Forces Agreement governing American
military personnel and their dependents in South Korea. We
conclude that neither the treaty nor the agreement bars
extradition. We therefore affirm.
4                  PATTERSON V. WAGNER

                        I. Background

    In 1997, Arthur Patterson, a seventeen-year-old son of an
American serviceman stationed in South Korea, was involved
in some manner in the murder of a Korean college student,
Cho Joong-pil, in a Burger King restroom in Seoul. Patterson
and his friend Edward Lee followed Cho into the restroom
and came out covered in blood. Afterwards, each accused the
other of having stabbed Cho. Almost twenty years later,
South Korea seeks to prosecute Patterson for murder. Its
extradition request alleges that Cho was stabbed with
Patterson’s knife, that Patterson threw the knife in a sewer
after the stabbing, and that two of Patterson’s friends have
stated that Patterson told them that he killed Cho.

    In the immediate aftermath of the murder, South Korean
authorities accepted Patterson’s claim that Lee, not Patterson,
was the murderer. They prosecuted Lee for murder and
Patterson for destruction of evidence. Patterson was
convicted of destruction of evidence and served slightly more
than a year in prison. In 1999, after his release from prison,
Patterson left South Korea for the United States. Lee was
convicted of murder, but his conviction was overturned on
appeal. The South Korean government prosecuted Lee again,
and he was acquitted.

    In 2009, South Korean prosecutors obtained a warrant for
Patterson’s arrest and sent an extradition request to the United
States government. In 2011, the U.S. government sought and
obtained an arrest warrant and arrested Patterson. The
government then filed a complaint in federal district court
seeking Patterson’s extradition to South Korea. Patterson
opposed extradition. He argued that because the murder
occurred in 1997, and because he had already been tried and
                   PATTERSON V. WAGNER                        5

convicted of a crime related to the murder, two international
agreements bar extradition for the prosecution South Korea
now seeks to bring.

    A magistrate judge rejected Patterson’s arguments and
certified him for extradition. Patterson then filed a petition
for a writ of habeas corpus. The district court denied the
petition, and Patterson timely appealed.

                        II. Discussion

                        A. Extradition

    A state party to an extradition treaty ordinarily must
comply with a request of another state party to arrest and
deliver a person sought by that state for criminal prosecution.
See Restatement (Third) of the Foreign Relations Law of the
United States § 478 (1987 & 2014 Supp.). Extradition rests
on the premise that “[a]ll nations have a common interest in
the repression of crime.” 1 John Bassett Moore, A Treatise
on Extradition and Interstate Rendition § 3 (1891).

    “[E]xtradition is a diplomatic process carried out through
the powers of the executive, not the judicial, branch.”
Blaxland v. Commonwealth Dir. of Pub. Prosecutions,
323 F.3d 1198, 1207 (9th Cir. 2003). Under the federal
extradition statute, 18 U.S.C. § 3184, the country seeking
extradition must first file a request with the State Department.
Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir. 2006). “After the
request has been evaluated by the State Department to
determine whether it is within the scope of the relevant
extradition treaty, a United States Attorney, if so instructed,
files a complaint in federal district court seeking an arrest
6                  PATTERSON V. WAGNER

warrant for the person sought to be extradited.” Blaxland,
323 F.3d at 1207.

    After the United States has sought an arrest warrant for
the person to be extradited (known as the “relator”), a federal
or state judicial officer must hold a hearing to determine
whether to certify the relator for extradition. 18 U.S.C. §
3184. The role of the judge is “very limited.” Vo, 447 F.3d
at 1237. The judge must determine whether there is
“‘evidence sufficient to sustain the charge under the
provisions of the proper treaty or convention,’ or, in other
words, whether there is probable cause.” Id. (quoting
18 U.S.C. § 3184) (citation omitted). If the judge determines
that there is probable cause, he or she “is required to certify
the individual as extraditable to the Secretary of State.”
Blaxland, 323 F.3d at 1208. The Secretary then decides, in
the exercise of his or her discretion, whether to extradite the
relator to the requesting country. Vo, 447 F.3d at 1237.

    “The authority of a . . . judge serving as an extradition
judicial officer is . . . limited to determining an individual’s
eligibility to be extradited . . . .” Id. As part of the
determination of eligibility for extradition, “the district or
magistrate judge must . . . assess whether any of the
applicable treaty provisions bar extradition of the alien for
any of the charged offenses.” Barapind v. Reno, 225 F.3d
1100, 1105 (9th Cir. 2000). Because an extradition
certification is not a final order subject to appellate review,
judicial review of the decision of the extradition judge is by
habeas corpus. Prasoprat v. Benov, 421 F.3d 1009, 1013 (9th
Cir. 2005). Our review of the district court’s interpretation of
the relevant international agreements is de novo. Kamrin v.
United States, 725 F.2d 1225, 1227 (9th Cir. 1984).
                  PATTERSON V. WAGNER                      7

              B. Potential Bars to Extradition

    Patterson argues that two agreements between the United
States and South Korea bar his extradition. First, he argues
that his extradition would violate the extradition treaty
between the two countries because his prosecution for murder
would be barred by the statute of limitations in the United
States, and thus would violate the treaty’s lapse-of-time
provision. Second, he argues that his extradition would
violate the double-jeopardy provision of the Status of Forces
Agreement governing American military personnel, and their
dependents, in South Korea. We address each argument in
turn.

                   1. Extradition Treaty

    Patterson first argues that the 1998 extradition treaty
between the United States and South Korea prohibits his
extradition because his prosecution would be untimely. The
question is whether the treaty’s lapse-of-time provision,
which states that extradition “may be denied” when the
prosecution would have been barred by the relevant statute of
limitations in the United States, imposes a mandatory bar to
extradition. We conclude that it does not impose a mandatory
bar.

    Article 6 of the extradition treaty between the United
States and South Korea provides, in part:

       Lapse of Time

       Extradition may be denied under this Treaty
       when the prosecution or the execution of
       punishment of the offense for which
8                  PATTERSON V. WAGNER

        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.

Extradition Treaty, U.S.-S. Kor., art. VI, June 9, 1998,
T.I.A.S. No. 12,962 (“Treaty”) (emphasis added). That is, if
a person cannot be prosecuted for a crime in the United States
because the relevant statute of limitations has expired,
extradition to South Korea for that crime “may be denied.”
Id.

    The parties agree that Patterson has been certified for
extradition for a crime for which he cannot now be
prosecuted in the United States. The magistrate judge
certified Patterson for extradition only for second-degree
murder, concluding that the evidence did not support a
finding of probable cause for premeditated murder. The
magistrate judge then applied the five-year federal statute of
limitations for second-degree murder, see 18 U.S.C. §
3282(a), for the purpose of addressing the lapse-of-time
provision of Article 6. The government challenges neither
the finding of probable cause nor the application of the
federal statute of limitations. However, the government
contends that the lapse-of-time provision of Article 6 is not
judicially enforceable.

    We begin with the text of the treaty. Medellin v. Texas,
552 U.S. 491, 506 (2008) (“The interpretation of a treaty, like
the interpretation of a statute, begins with its text.”). Article
6 provides, “Extradition may be denied.” Treaty, art. VI
(emphasis added). The normal reading of “may” is
permissive, not mandatory. The most natural reading of
Article 6, therefore, is that untimeliness is a discretionary
                  PATTERSON V. WAGNER                        9

factor for the Secretary of State to consider in deciding
whether to grant extradition. That is, the Secretary “may”
decline to extradite someone whose prosecution would be
time-barred in the United States, but he or she is not required
to do so. Under this reading, there is no mandatory duty that
a court may enforce. Cf. Trinidad y Garcia v. Thomas,
683 F.3d 952, 960 (9th Cir. 2012) (en banc) (Thomas, J.,
concurring) (“[I]t is the Secretary’s role, not the courts’, to
determine whether extradition should be denied on
humanitarian grounds . . . .” (internal quotation marks
omitted)).

    This reading of Article 6 is consistent with our decision
in Vo. In that case, Vo was arrested in the United States for
bombing the Vietnamese embassy in Thailand. 447 F.3d at
1238–39. When Thailand sought to extradite him, Vo argued
that the relevant treaty barred his extradition. The treaty
stated that extradition “may be denied when the person sought
is being or has been proceeded against” (i.e., prosecuted) in
the extraditing country for a related crime. Id. at 1238
(emphasis added). We rejected Vo’s argument that the “may-
be-denied” language barred the judge from certifying his
extradition, holding that the language meant that a proceeding
for a related crime was a discretionary factor to be considered
by the Secretary of State in deciding whether to extradite. Id.
at 1246. We wrote that, as a general matter,

       [t]he two types of exception [i.e., mandatory
       and discretionary] are characterized by
       different language in extradition treaties. The
       use of “shall” language in a treaty indicates a
       provision constitutes a mandatory
       exception. . . . The use of “may” language in
10                  PATTERSON V. WAGNER

        a treaty indicates a provision constitutes a
        discretionary exception.

Id. at 1246 n.13.

    Patterson contends that our reading of “may be denied” in
Vo does not apply to that same language in Article 6.
Patterson argues that evidence from the treaty’s drafting and
negotiating history demonstrate that, despite the use of the
“may-be-denied” language, Article 6 was intended to be a
mandatory bar to untimely extradition requests. Patterson
further argues that the magistrate judge erred by ignoring this
evidence. We agree with Patterson that extra-textual
evidence is relevant to treaty interpretation, but we disagree
with him on the significance of that evidence in this case.

    While “[t]he interpretation of a treaty . . . begins with its
text,” Medellin, 552 U.S. at 506, it does not end there.
Because the purpose of treaty interpretation is to “give the
specific words of the treaty a meaning consistent with the
shared expectations of the contracting parties,” Air France v.
Saks, 470 U.S. 392, 399 (1985), courts — including our
Supreme Court — look to the executive branch’s
interpretation of the issue, the views of other contracting
states, and the treaty’s negotiation and drafting history in
order to ensure that their interpretation of the text is not
contradicted by other evidence of intent. See Abbott v.
Abbott, 560 U.S. 1, 15–20 (2010) (examining these factors
following its textual analysis); Medellin, 552 U.S. at 508–13
(same); see also Vo, 447 F.3d at 1246 n.13 (consulting a letter
of submittal from the Secretary of State).

   In this case, the extra-textual evidence, considered as a
whole, reinforces the interpretation of Article 6 for which the
                  PATTERSON V. WAGNER                       11

government argues. Patterson points to evidence that he
contends shows that both the Senate and the executive branch
understood Article 6 to impose a mandatory bar. But this
evidence falls short of establishing that either the Senate or
the executive branch understood the treaty in this way.

     First, Patterson argues that the Senate Report
accompanying the treaty shows that the Senate understood
Article 6 to be mandatory. He points to the Report’s
summary, which states, “The Treaty with the Republic of
Korea precludes extradition of offenses barred by an
applicable statute of limitations.” S. Exec. Rep. No. 106-13,
at 5 (1999) (“Report”). Patterson argues that this language
shows that the lapse-of-time provision of Article 6 is
mandatory, not permissive. But the body of the Report calls
that reading into question. The more detailed technical
analysis of the treaty, contained in the body of the Report,
describes Article 6 in permissive terms, stating that
extradition “may be denied” and explaining that the Korean
and U.S. statutes of limitations operate so differently that
“this provision could be very difficult to implement.” Id. at
14. The technical analysis points to three extradition treaties
that have what it characterizes as “similar provisions.” Id.
Tellingly, two of those treaties use the word “shall,” and one
uses the word “may.” Compare Extradition Treaty, U.S.-Fr.,
art. 9(1), Apr. 23, 1996, S. Treaty Doc. No. 105-13 (“shall”),
and Extradition Treaty, U.S.-Japan, art. IV(3), Mar. 3, 1978,
31 U.S.T. 892 (“shall”), with Extradition Treaty, U.S.-Lux.,
art. 2(6), Oct. 1, 1996, S. Treaty Doc. No. 105-10 (“may”).
When parties to a treaty intend to make an exception to
extradition mandatory, in other words, they know how to
state that it “shall” apply.
12                PATTERSON V. WAGNER

    Second, Patterson argues that the hearings on the treaty
show that the Senate understood Article 6 to be mandatory.
He points to an exchange between Senator Rod Grams and
John Harris, the Acting Director of the Office of International
Affairs at the Department of Justice, during the Senate
hearing. But to the extent the exchange supports either
reading of Article 6, it only weakly supports Patterson’s
contention that the Senate understood the provision to be
mandatory, and it shows fairly clearly that the executive
branch understood it to be permissive. The exchange is as
follows:

       SENATOR GRAMS:

           Article 6 of the proposed treaty bars
           extradition in cases where the law of the
           requested State would have barred the
           crime due to a statute of limitations
           having run out.

           ...

               So the question is are you confident
           that this article of the treaty adequately
           insures that fugitives cannot simply run
           out the clock by fleeing to Korea?

       MR. HARRIS:

           Senator, this article of the treaty was the
           subject of considerable negotiation. As
           you may recall, of the treaties that were
           before the Senate last fall, most of them
           had slightly different language. Many of
                   PATTERSON V. WAGNER                        13

            our most modern extradition treaties flatly
            state that the statute of limitations of the
            requesting State will apply.

                 We have a few in which it was not
            possible to reach that resolution. In this
            case, because of the specific provisions of
            Korean law, we did agree that the statute
            of limitations of the requested State would
            apply. But, as you have indicated, the
            specific language in the article is crafted
            so that those factors which toll the statute
            of limitations under the law of the
            requesting State would be given weight.

Report at 37 (emphasis added).

    The import of the italicized portion of Senator Grams’s
question is not clear. Senator Grams may have thought that
Article 6 was a mandatory bar, as indicated in the italicized
words, but he may have been speaking imprecisely. But even
if Senator Grams was speaking precisely, he may have
considered himself to have been informed to the contrary, and
persuaded and corrected, by Mr. Harris’s answer. And even
if he was speaking precisely, and even if he did not change
his view after hearing Mr. Harris’s answer, Senator Grams
was not speaking for the full Senate. By contrast, the import
of Mr. Harris’s words, given on behalf of the executive
branch, is fairly clear. He stated that Article 6 was the subject
of “considerable negotiation,” and that the “specific language
in the article is crafted” to give “weight” to a statute of
limitations determination. Id.
14                 PATTERSON V. WAGNER

    Additional evidence of the executive branch’s
interpretation of Article 6 shows that the executive branch has
interpreted Article 6 to grant discretion to the government to
which the extradition request is made.               The State
Department’s official submittal letter, which accompanied the
treaty when President Clinton submitted it to the Senate,
described the treaty provisions. See S. Treaty Doc. No. 106-
2, at v (1999). In that letter, Deputy Secretary of State Strobe
Talbott explained that “Article 6 permits extradition to be
denied” when the prosecution would be untimely. Id. at vii
(emphasis added). The submittal letter’s use of the word
“permits” rather than “requires” indicates that the executive
branch believed that Article 6 was permissive rather than
mandatory.

    Taken as a whole, the extra-textual evidence reinforces
the natural reading of Article 6. Under that reading, the
Secretary of State may choose, in his or her discretion,
whether to grant or deny extradition in a case where the
statute of limitations in the United States has expired.
Federal courts thus have no authority under Article 6 to
dictate to the Secretary of State what he or she must do in
such a case.

               2. Status of Forces Agreement

    Patterson next argues that the Status of Forces Agreement
(“SOFA”) governing American military personnel and their
dependents in South Korea prohibits his extradition.
Specifically, he argues that his extradition to Korea would
expose him to double jeopardy in contravention of the SOFA,
and that the SOFA confers a judicially enforceable right not
to be extradited. The premise of Patterson’s argument is that
                  PATTERSON V. WAGNER                      15

rights conferred by the SOFA may be enforced by the
judiciary to block extradition. We disagree with this premise.

    The United States and South Korea entered into the SOFA
in 1966 pursuant to the mutual defense treaty between the two
countries. Under the agreement, U.S. military personnel and
their dependents in Korea are entitled to enumerated rights,
including, as relevant here, the right “not [to] be prosecuted
or punished more than once for the same offense.” Facilities
and Areas and the Status of United States Armed Forces in
Korea, U.S.-S. Kor., July 9, 1966, 17 U.S.T. 1677, 1780
(“SOFA”). The parties agree that the SOFA applies to
Patterson, as he was the dependent of an American
serviceman stationed in South Korea at the time of the
murder.

    Patterson argues that his prosecution in South Korea for
murder would violate the SOFA provision protecting against
double jeopardy. He argues that his conviction for
destruction of evidence required a finding by the South
Korean court in that proceeding that he did not commit the
murder for which extradition is now sought. This is so, he
argues, because the statute under which he was convicted
prohibits the destruction of evidence in connection with “a
criminal . . . case against another.” Criminal Act, Act No.
293, Sept. 18, 1953, art. 155(1), amended by Act No. 5057,
Dec. 29, 1995 (S. Kor.) (emphasis added). Thus, Patterson
argues, the South Korean court was required to find in his
earlier criminal trial that he was not the person who murdered
Cho.

    We need not reach the question whether the SOFA
forbids Patterson’s prosecution for murder in South Korea.
A threshold question is whether, even if the double jeopardy
16                 PATTERSON V. WAGNER

provision of SOFA forbids the prosecution, we can enforce
that provision by blocking his extradition. We conclude that
the answer to this question is “no.”

    For purposes of our decision, we assume that there is no
categorical prohibition against a federal statute, or a treaty or
other international agreement to which the United States is a
party, providing a basis for a judicial order blocking
extradition. Cf. Trinidad y Garcia, 683 F.3d at 956–57. But
it is clear that the SOFA is not such an international
agreement. We agree with the Seventh and D.C. Circuits that
a relator seeking to block extradition by relying on an
international agreement must show, at a minimum, that the
agreement upon which he relies establishes a judicially
enforceable right. See In re Burt, 737 F.2d 1477, 1487–88
(7th Cir. 1984); Holmes v. Laird, 459 F.2d 1211, 1222 (D.C.
Cir. 1972); cf. Edye v. Robertson (Head Money Cases),
112 U.S. 580, 598 (1884) (a treaty, though primarily “a
compact between independent nations,” may contain
“provisions which confer certain rights upon the citizens or
subjects of one of the nations . . . which are capable of
enforcement as between private parties in the courts of the
country”).

    Though the SOFA appears to establish individual rights,
we conclude that they are not judicially enforceable.
Confronted with a similar question regarding the NATO
status of forces agreement, the Seventh and D.C. Circuits
looked to whether the agreement established judicial or
diplomatic mechanisms for adjudicating disputes. Burt,
737 F.2d at 1487–88; Holmes, 459 F.2d at 1222. In Burt, the
Seventh Circuit held that recourse for a violation was
“diplomatic, not judicial,” and on that basis rejected the
relator’s petition for a writ of habeas corpus. 737 F.2d at
                   PATTERSON V. WAGNER                       17

1488. Similarly, in Holmes, the D.C. Circuit held that
because the agreement required the parties to negotiate
disputes “relating to the interpretation or application of this
Agreement,” the “enforcement mechanism” for the assertion
of individual rights under the agreement was “diplomatic
recourse only.” 459 F.2d at 1222.

    Here, as in Burt and Holmes, the U.S.-Korea SOFA
establishes diplomatic procedures for resolution of matters
arising under its provisions. It provides that “[a] Joint
Committee shall be established as the means for consultation
between [the United States and South Korea] on all matters
requiring mutual consultation regarding the implementation
of this Agreement except where otherwise provided.” SOFA
at 1704. Amendments adopted in 2001 specify a procedure
by which the Joint Committee’s jurisdiction is invoked: the
state parties have ten days to resolve any complaint at the
local level; the matter is then referred the Joint Committee,
which has 21 days to resolve it; if the Committee cannot do
so, the matter is referred to the two governments. Facilities
and Areas and the Status of United States Armed Forces,
U.S.-S. Kor., art. XXII, ¶¶ 5(c), 9, Jan. 18, 2001, T.I.A.S. No.
13,138. Like the NATO agreement, the SOFA establishes an
enforcement mechanism that is “diplomatic, not judicial.”
Burt, 737 F.2d at 1488.

    The SOFA’s provisions thus establish a diplomatic
conflict resolution scheme with no role for the judiciary.
Even if prosecution of Patterson for murder violates the
SOFA’s provision protecting against double jeopardy (a
question we do not decide), that provision does not provide
a basis for a court to bar his extradition.
18                 PATTERSON V. WAGNER

                         Conclusion

    Because neither the treaty nor the SOFA provides a basis
for a court to bar Patterson’s extradition, the magistrate judge
did not err in certifying him for extradition to South Korea,
and the district court did not err in denying his petition for a
writ of habeas corpus. Our decision does not foreclose
Patterson from seeking relief from the Secretary of State. We
hold only that neither the treaty nor the SOFA provides a
basis for judicial relief.

     AFFIRMED.
