Because we are of the view that the judiciary should not be dragged into refereeing this intragovernmental squabble until it is certain that these constitutional problems cannot be avoided, we call on principles analogous to the doctrine of primary jurisdiction so that in a responsible, factual way the judiciary knows what the real score is. To this end we vacate the orders and remand for further proceedings, with the petitioner remaining free on terms pending final judicial resolution which hopefully will never have to take place.

Josette Claire Bauer is a Swiss national who has an uncompleted prison sentence outstanding against her in Switzerland for the murder of her father. She was arrested in Miami on August 31, 1967 when she and her accomplice, Willy Lambert, attempted to smuggle 28 lbs of heroin into the country aboard a ship.1 The two "mules"2 were suspected by Customs and the BNDD of being part of a large Corsican-French drug chain. This conspiracy was known to exist but up until this time the United States officials had been unable to find a link at which to break it.

In an effort to induce their cooperation, the Government investigators disclosed the full extent of the evidence against them to their attorney, James Jay Hogan, who had, incidentally, replaced their initial counsel both of whom had been indicted in the same conspiracy. Confronted with multiple counts and heavy mandatory sentences aggregating many years, Lambert and Bauer quickly reached a bargain with the Government. They agreed not merely to volunteer all their knowledge of the domestic and international drug conspiracy but affirmatively to testify against their superiors in the ring, should they be caught and brought to trial.

For its part, the Government agreed to reindict the two and allow them to plead guilty to a 2 count indictment that carried a combined maximum sentence of 7 years. Their confinement, however, would last only 3 years, after which time they would be paroled.

Lastly, but central to this case, at some point in the negotiations, when Mori the so-called "traffic manager" of the ring was finally caught and testifying against him was no longer a hypothetical possibility, Lambert and Bauer balked. They were obsessed by their intense fear of reprisals a fear all the agents concerned accepted as well-founded. As a consequence, the Government attorneys responsible for the prosecutions promised them that the Government would "use its best efforts to get them to a country other than Switzerland . . . "3 They were, as a practical matter, protected against deportation to Switzerland.4

The full impact of both the value of their testimony and the extent of the Government's promises is conveyed in the exhibit letter of William Earle,5 Special Attorney to the Department of Justice Organized Crime Section. The letter demonstrates that the assurances of the government were emphatic and without them the two would never have testified.

The ability of the Government to fulfill this last promise to Bauer is complicated by ancillary extradition proceedings brought against her by the Swiss Government before Judge Atkins in the Southern District of Florida under 18 U.S.C.A. § 3184. An order certifying to the Secretary of State the extraditability of Bauer was granted November 2, 1967 without Judge Atkins having any apparent awareness that Bauer was then or would shortly be involved in plea negotiations with the Government.6 Whatever might have been the duty of the United States Attorneys to intercede in the extradition hearing, it is a certainty that the Government attorneys were entirely aware of the outstanding order at the time they bound the Government to "use its best efforts" to insure her deportation to a "safe" country.

Bauer and Lambert kept their bargain. They supplied information that in the words of William Earle, Special Attorney to the Department of Justice Organized Crime Section, was "the first crack in breaking down the entire international narcotics conspiracy." Judge Mehrtens, who presided at the conspiracy trial and later at the habeas hearing, recalled that Josette Bauer was the more valuable of the two witnesses at the Mori trial and that ". . . she was one of the most impressive witnesses I have ever seen in a lawsuit. The witness had a remarkably retentive memory as to dates, places and times . . . without Mrs. Bauer I am quite sure Willy (Lambert) would have been able to testify to only about one-tenth of what Mrs. Bauer testified to."

Mori was convicted and sentenced to 20 years in prison. Bauer and Lambert began to serve their own sentences on December 1, 1967, anticipating that the Government would keep its promises. But, as the two-year mark approached, they began to get overtures from Swiss and French investigators seeking information. Specifically, Josette Bauer was told by Customs Agent Alan Yarborough who conferred with her in prison that the Swiss Government wanted her badly enough that they were willing to send 2 agents here to talk to her. According to her testimony, Yarborough told her that the Government was not going to be able to keep its promise and prevent her deportation to Switzerland.7 Highly agitated by these events, within the month she escaped on October 10, 1969 from her prison in Alderson, West Virginia. For two years she lived in Albuquerque, New Mexico.8 She was captured on June 25, 1972 and on May 1, 1973 she was sentenced to serve 18 months for the escape to run consecutive to her remaining sentences. When she returned to prison, the Department of Justice expressly disavowed the agreement and on June 14, 1973 her application for parole was denied by the Board which directed that she serve out the remainder of her 7 year Miami narcotics sentence.

Meanwhile, Lambert remained in prison. As the three-year point approached, he and his counsel were surprised to discover that nothing had been done on his behalf by the Government to increase the likelihood of his parole. His counsel contacted the Assistant United States Attorneys and other government officials with whom he had negotiated the plea bargain and at their urgings the Department of Justice finally acted. In response to its recommendation, the Board granted the parole. Following his release, U.S. Marshals escorted Lambert to the airport where he bought a ticket with his own money to the Netherlands. Nevertheless, his hopes of safe passage to a sanctuary were unrealistic because his presence on the plane was somehow known to the Swiss. He was met at the Netherlands airport and immediately removed to Switzerland. At the time of Bauer's habeas hearing, Lambert's attorney in response to inquiries had heard no word from him for over a year.

Now Josette Bauer returns to court, hoping that her case will have a better outcome than that of her co-defendant. She seeks to compel the Government to live up to its plea bargain by specifically enforcing the plea agreement and enjoining the extradition order. She charged that the order amounted to an unlawful detainer by the Secretary of State because it violated the plea bargain and because the Swiss offense did not fall within the terms of the extradition treaty.

After an extensive hearing Judge Mehrtens found that there was a specific, definite agreement that she would not serve over 3 years and that she would be deported to some country other than Switzerland or France.9 Bauer was discharged from any further detention imposed as a result of her Miami narcotics conviction10 and the District Judge set aside and enjoined the execution of the extradition order. He directed that if it was determined that she should be deported, it would be only to an "acceptable" country not France, Switzerland or the possessions of either.

On appeal, the Government does not challenge the findings of fact of the District Court. It accepts these but objects instead to the method and timeliness of the District Court intervention in the case. The Government argues that (i) Bauer's habeas action is premature because the extradition order has not issued due to her incarceration for 5 more years on the two consecutive sentences, (ii) the judgment should be vacated for petitioner's failure to join the Confederation of Switzerland as an indispensable party under F.R.Civ.P. 19(a) because of its direct interest in the person of Josette Bauer; (iii) and the District Judge usurped the exclusive power and responsibility of the Board by releasing Bauer.

As we pointed out in the prologue, at the core of each of these arguments is the essential fact that the Government occupies a schizophrenic position. The Department of Justice, having made a bargain that it would do its best to influence the actions of the independent sister branches of the Government the State Department and the departmental subordinate, the Board and having convinced Josette Bauer that it would in all likelihood be successful, claims to find itself with contradictory commitments to Josette Bauer and the Swiss Government.

Assuming, as insisted upon by the Department of Justice, that the deportation-extradition commitment was not the absolute one found by the Court (see note 9, supra) but the more limited one to use its "best efforts", this record and the very fact of this appeal shows an outright failure to comply. The best effort would, at a minimum, be a strong presentation to the Department of State as to what had been promised and the likely dangers to the bargainee-defendant-witness. But the record is silent. All we have is the legalistic position voiced by the Department of Justice as the official spokesman that this has to occur under statutes and treaties.

But we are not at all sure that a Secretary of State who is instructed by the chief legal officer of the nation that failure to keep the bargain is a plain violation of Bauer's constitutional rights would persist in the steps to effectuate extradition.11

Similarly, the Department of Justice had the minimum duty of advising the Board of the trade and the importance to the public interest of its being honored. Yet the Department did not do that. To the contrary, it actively opposed the granting of parole which would effectuate the promise of a three-year confinement. We recognize that in a structure of independent quasi-adjudicative agencies within an Executive department there is and should be no hierarchical intrusion into the exercise of administrative discretion. At the same time, that agency needs to be advised in positive terms of the agreements made, the consequences of which were (i) rich in terms of the public interest and (ii) of constitutional consequences to the bargainee if not honored. But, as discussed, we are likewise in the dark. The Department of Justice which has at least some supervision over this agency tries to force us into deciding whether a Court can intrude before the Judiciary has reliable information that the Board would not correct its own errors once it is fairly advised.

What is needed in this international plot is an authoritative declaration of the position of the United States Government not just that of one or more departments or agencies.

( 2) It is at this point we invoke principles akin to primary jurisdiction. This invaluable doctrine has evolved from what was originally a means of preventing courts from overriding agency jurisdiction12 to become a means to flexibly harness the resources of agency or departmental expertise to the judicial decision-making process.13 We have repeatedly benefited by the use of this mechanism.14

It has special usefulness in a case such as this where the District Court and this Court need to know just exactly what the Secretary of State proposes to do in the light of this confessed failure to keep the faith. Without this unified sovereign pronouncement, we strike out blindly to formulate a judicial remedy with unknown and weighty variables, not the least of which is treading upon delicate international relations.

Once the concept is properly understood, there is ample precedent for this demand for a governmental resolution of its total position. For example, in shipping cases,15 the Supreme Court directed that the courts defer review until the Federal Maritime Board had the opportunity to consider the legal issues. In both Cunard and Far East the parties had generally complained that the actions of a conference of carriers in operating a dual system of shipping rates that benefited those shippers that contracted exclusively with the conference members violated the anti-trust laws. Subsequently in Isbrandtsen, the Court outlined the vital role of the administrative, executive determination:

It is, therefore, very clear that these cases, while holding that the Board had primary jurisdiction to hear the case in the first instance, did not signify that the statute left the Board free to approve or disapprove the agreements under attack. Rather, those cases recognized that in certain kinds of litigation practical considerations dictate a division of functions between court and agency under which the latter makes a preliminary, comprehensive investigation of all the facts, analyzes them, and applies to them the statutory scheme as it is construed. Compare Denver Union Stock Yard Co. v. Producers Livestock Marketing Assn., ante (356 U.S.) p. 282 (78 S. Ct. 738, 2 L. Ed. 2d 771). It is recognized that the courts, while retaining the final authority to expound the statute, should avail themselves of the aid implicit in the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern. Cases are not decided, nor the law appropriately understood, apart from an informed and particularized insight into the factual circumstances of the controversy under litigation.

Maritime Board v. Isbrandtsen Co., 1957, 356 U.S. 481, 498, 78 S. Ct. 851, 861, 2 L. Ed. 2d 926.

What we are saying is that the United States Government must in the light of the commitment made by its prosecutorial arm look carefully at the constitutional obligations owing Bauer. When it looks whether through the advocative eyes of the Attorney General or through those of the Secretary of State, whose oath of office calls for support of the same constitution all will see Santobello16 as a lion in the streets. There the Court reversed the conviction of a defendant who pleaded guilty after agreeing with one prosecutor that no sentence recommendation would be made only to have a new prosecutor recommend the maximum punishment at the time of sentence. Despite the fact that the sentencing Judge emphasized that, in view of the defendant's prior record, the absence of a recommendation by the prosecutor would have made no difference in the sentence, the Supreme Court found that the impact of such a breach justified reversal. In the words of the Chief Justice:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Santobello v. N. Y., supra at 262, 92 S. Ct. at 499. As a remedy, the case was returned to the state court for a determination of whether the appropriate remedy was specific performance of the promise before another Judge or an opportunity to withdraw the plea.17

Thus, following Santobello, defaulted plea bargains must be remedied. But the avenues of redress available for Bauer are few. Eradicating the impact of her testimony is impossible. And, of course, an opportunity to replead seems superficial and unrealistic in view of her long confinement. Specific performance may well be the only way out to keep the bargain.

Although it poses none of the delicate problems of international relations and the effectuation of treaties, Santobello stands for much more in assaying the failure of the Department of Justice to take honorable but effective action before the Board to secure her release at the end of the promised three years. The Government does not even begin to whisper the faintest suggestion of a possible reason why it did not in advance of the approaching three-year expiration make the appropriate representations to the Board.18 All it can do is to faintly urge that the District Judge's action usurps the exclusive role and independence of the Board, citing: Tarlton v. Clark, 5 Cir., 1971, 441 F.2d 384; Buchanon v. Clark, 5 Cir., 1971, 446 F.2d 1379; Thompkins v. United States Board of Parole, 5 Cir., 1970, 427 F.2d 222; Simon v. United States (E.D.La., 1967), 269 F. Supp. 738, aff'd, 1968, 397 F.2d 813.

Sharing as we do the Government's concern about judicial intrusion into the parole process,19 we defer until after remand whether we would put our stamp of approval on the District Judge's order which in effect releases Bauer at the end of the reconstructed three-year term.20 We do this because remand offers an ample opportunity for the judiciary to be informed of exactly (i) what would have taken place by the Board had the Department of Justice kept its word, and (ii) what would now take place if, on a full disclosure of the positive commitment and the consequent violation of Bauer's constitutional rights, the matter would be resubmitted to the Board. Both the Board and its hierarchical superiors are to respond authoritatively on this.21

Several things are to be accomplished by and on the remand. The Government shall, after consideration of the promise made and the failure to keep all or part of it by the respective officials at the highest levels, state unequivocally the position of the United States Government. In the event that position does not result in the effectual release of Bauer from the restraints or prospects or threats thereof, the District Court shall conduct further hearings after allowing fullest discovery on all issues and particularly on the question of just what has been done with the promise "to use our best efforts" and the reasons why, if any, steps have not been taken or why they have been ineffectual.22

The Government asserts that, in any event, the case is not ripe since, if the prison term remains effective, the deportation cannot take place for several more years. We reject this for several reasons. To begin with it assumes that the order releasing her from further confinement will be reversed. But more basically, her very personal interests are so vitally affected that the situation of threatened return to prison and later extradition constitutes sufficient custody.23 Undoubtedly, Josette Bauer is harmed if there is any likelihood that the Government will not stand by its promise irrespective of whether she is five minutes or four years from deportation.

This brings us to the contention that the case must be dismissed (or vacated and remanded) for failure to join the Confederation of Switzerland under F.R.Civ.P. 19(a)(2). Again there are several reasons why we reject this. At the outset this is raised for the first time on appeal24 itself a factor which may be evaluated in considering joinder. Provident Bank & Trust v. Patterson, 1968, 390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 936.

Next, the Federal Rules have only limited application to habeas proceedings. In 1969, the Supreme Court considered the applicability of the Federal Rules to habeas proceedings in the context of discovery. Harris v. Nelson, 394 U.S. 286, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (construing F.R.Civ.P. 81(a)(2) ). The Court referred to a "considerable debate " over the applicability of the joinder rules, and expressly "intimate(d) no view." 394 U.S. at 294 n. 5, 89 S. Ct. at 1088, 22 L.Ed.2d at 288.

The Court did, however, point out the remarkable expansion of the habeas remedy's scope since the institution of the Federal Rules in 1938, the critical date in using the "conformity" test. A great deal of that expansion has come in defining "custody." E. g., Peyton v. Rowe, 1968, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426; Jones v. Cunningham, 1963, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285. Even today, however, we have considerable doubt that concept has enlarged to the point Switzerland alone could be named as a habeas respondent in this situation. And the Government has especially failed to indicate any pre-1938 authority to the effect that one not physically a custodian of petitioner's body is a proper party-respondent.25 We conclude that Rule 19 is not in "conformity" with pre-1938 practice and, therefore, not applicable in this case.

More important, under the solution we mandate there may not even be any judicial order required to carry out the bargain. If Switzerland feels aggrieved at such a possible executive-political resolution, its avenues of redress would more likely be through diplomatic means or in international tribunals.

Vacated and remanded.