The Role of the American Judiciary in the Extradition of ...

Journal of Criminal Law and CriminologyVolume 71Issue 3 Fall Article 2

Fall 1980

The Role of the American Judiciary in theExtradition of Political TerroristsSteven LubetNorthwestern University School of Law

Morris Czackes

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Recommended CitationSteven Lubet, Morris Czackes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 J. Crim. L. &Criminology 193 (1980)

0091-4169/80/7103-0193S02.00/0THE JOURNAL OF CRIMINAL LAw & CRIMINOLOGY Vol. 71, No. 3Copyright 0 1980 by Northwestern University School of Law Printed in U. S.A.

THE ROLE OF THE AMERICAN JUDICIARY IN THE EXTRADITION OFPOLITICAL TERRORISTS

STEVEN LUBET* AND MORRIS CZACKES**

INTRODUCTION

On August 21, 1979, Ziyad Abu Eain was ar-rested in Chicago and informed that the govern-ment of Israel was seeking his extradition on thecharge of murder. The charges resulted from anIsraeli police investigation which linked him to abombing in a crowded market area in Tiberias,

Israel, which killed two children.1 Abu Eain as-serted that he was not extraditable because of thepolitical offense exception that exists in the extra-dition treaty between the United States and Israel.2

He claimed that Israel sought his extradition be-cause of his past association with the Palestine

Liberation Organization and that in any event, thebombing was a political act aimed at the State of

Israel. Following a lengthy hearing, a federal mag-istrate in Chicago found that probable cause ex-isted to extradite Abu Eain and that the charged

offenses did not fall under the political offenseexemption.

3

* Professor of Law, Northwestern University; B. A.,Northwestern University; J. D., University of Californiaat Berkeley.

** B. S., Columbia College; J. D. Northwestern Uni-versity, 1978.1 The bombing occurred on May 14, 1979. Tiberias is

a resort area on the Sea of Galilee. The area was unus-ually crowded with young people who were participatingin a youth rally and holiday vacationers who had traveledto the city for the feast of Lag B'Omer. The blast, whichwas centered along one of the city's main thoroughfares,killed two youngsters instantly. Thirty-two others re-quired hospitalization and still others were treated forminor injuries. N. Y. Times, May 15, 1979, at 5, col. 5.2 The Convention on Extradition between the UnitedStates and Israel in relevant part provides:

Extradition shall not be granted in any of thefollowing circumstances:...4. When the offense is regarded by the requested

Party as one of a political character or if theperson sought proves that the request for hisextradition has, in fact, been made with a viewto trying or punishing him for an offense of apolitical character.

Dec. 10, 1962, art. VI, 14 U.S.T. 1707, T.I.A.S. No. 5476(effective Dec. 5, 1963).

3In re Abu Eain, No. 79 M 175 (N.D. Ill. Dec. 18,

1979) (mem.). There is no provision for direct appealfrom orders of a federal magistrate in extradition pro-ceedings. The United States District Court for the North-ern District of Illinois denied a petition for a writ of

Six months earlier Peter GabrielJohn McMullensuccessfully raised the same defense when GreatBritain sought his extradition from the UnitedStates4 for involvement in the 1974 bombing of aBritish Army Installation in England by the Pro-visional Irish Republican Army.5 The federal mag-istrate concluded that this bombing was part of a

political disturbance and was directed at the Brit-ish army-a prime target for guerilla warfare.

6

These cases illustrate a highly intricate extradi-

tion jurisprudence. The political offense exemptionis found in virtually every modern treaty of extra-dition and its application calls for findings of fact

and conclusions of law concerning crimes, events,and political situations halfway around the world.

In Abu Eain, for example, the magistrate declinedto take judicial notice "that there is now, and hasexisted for more than three decades, a military andpolitical conflict between the government of Israeland the several Arab states and the people ofPalestine."7 In McMullen, however, the magistratedid take notice that "an insurrection and a disrup-tive uprising of a political nature" existed in North-ern Ireland in 1974.8

habeas corpus on March 28, 1980. No. 79 C 5477 (N.D.I1. March 28, 1980) (mem.). Abu Eain has appealed thisdenial to the Seventh Circuit. No. 80-1487.'The Extradition Treaty between the United States

and Great Britain provides in part:A fugitive criminal shall not be surrendered if thecrime or offence in respect of which his surrender isdemanded is one of a political character, or if heproves that the requisition for his surrender has, infact, been made with a view to try or punish himfor a crime or offence of a political character.

Dec. 22, 1931, art. VI, 47 Stat., pt. 2, 2122, T.S. No. 849(effective Aug. 4, 1932).

5 Evidence presented in the proceeding established Mr.McMullen's membership in the Provisional Irish Repub-lican Army at the time of the bombing. The politicalobjective of the PIRA is nationalization of NorthernIreland. In 1964, the PIRA's terrorist activities createdheightened tension in England and Northern Ireland.The British government responded by outlawing the IrishRepublican Army and conferring upon police unprece-dented power to fight terrorist activities. N.Y. Times,Nov. 30, 1974, at 4, col. 3.6 In re McMullen, No. 3-78-1099 MG, mem. at 5 (N.D.Cal. May 11, 1979).'In re Abu Eain, No. 79 M 175, mem. at 12-13.8 In re McMullen, No. 3-78-1099 MG, mem. at 4.

LUBET AND CZACKES

In an area that concerns American foreign policyas deeply as does extradition, it is imperative thatthe judiciary develop a uniform approach to theapplication of the political offense exemption. Al-though there is a significant body of American caselaw that seeks to substantively define the term"political offence" the courts have paid consider-

ably less attention to the procedural requisites ofthe defense. This article explores the Americanjudiciary's procedural and substantive role in ex-tradition proceedings as a framework for develop-ing an approach to the political offense exemptionwithin the fundamental principles of individualliberty and human rights.

EXTRADITION OF POLITICAL OFFENDERS

Extradition originally served as a device for sur-rendering political dissidents and as a means bywhich medieval rulers attempted to secure theirpolitical structure.? Often political offenders were

extradited in the absence of any treaty. 0 As variousforms of constitutional government supplantedmonarchies, however, political dissent increasinglygained acceptability and the use of extradition asa political tool diminished in importance.' Thepolitical offense exception first emerged in theextradition treaty between Belgium and France in1834.12 Philosophical concepts generated by theFrench revolution' 3 encouraged political partici-pation and political change and legitimized resist-ance to tyrannical rule. Granting asylum to politi-cal offenders was therefore conceived as a duty inalmost all cases.'

4

9 Cantrell, The Political Offense Exemption in InternationalExtradition: A Comparison of the United States, Great Britianand the Republic of Ireland, 60 MARQ. L. REv. 777 (1977).

10 Deere, Political Offense in the Law and Practice of Extra-dition, 27 AM. J. INT'L L. 247 (1933).

" Id. at 248.12 See Garcia-Mora, The Present Status of Political Offenses

in the Law of Extradition and Asylum, 14 U. PiT. L. REv.371, 372 (1953). One of the first countries to providespecific domestic legislation exempting political offendersfrom extraditon was Belgium in 1833. The first treatyexempting the political offense from extradition appearedin the treaty between France and Belgium in 1834. I. A.SHEARER, EXTRADITION IN INTERNATIONAL LAW 16 (1971)

13 Another reason provided by the authors of the 1933Harvard Draft Convention on Extradition included thegrowing sense of interdependence between nationsbrought on by the Industrial Revolution and the appear-ance of a variety of modes of transportation which madeescape from one country to another relatively easy. 29AM. J. INT'L L. 1, 108 (1953); see also Note, Bringing theTerrorist to Justice: A Domestic Law Approach, 11 CORNELLINT'L L. J. 71, 71-78 (1978).

I4 Deere, supra note 10, at 249.

The heightened concern for individual liberty,political dissent, and human rights in the worldhas led recently to various international enact-ments.15 International concern perhaps peakedwith the adoption of the Universal Declaration of

Human Rights by the United Nations in 1948.The framers of the Declaration sought to promoteuninhibited political debate by providing that for-

eign nations grant asylum to those accused ofpolitical acts.'

6

The political offense exception is not limited tononviolent dissent; revolutionary or counterrevo-lutionary violence may also be protected from ex-

tradition. While this view might, from time to time,lead to distasteful results, it is clear that revolution

falls within the ambit of political activity.Certain acts of violence, however, existing at the

fringe of legitimate revolution, challenge the con-scionability of protecting such activities from ex-tradition and punishment. It is the objective of thepolitical offense exception to protect those violent

u5See Convention on the Non-Applicability of Statu-

tory Limitation to War Crimes and Crimes AgainstHumanity, G.A. Res. 2391, U.N. GAOR, Supp. (No. 18)40, U.N. Doc. A/7218 (1968); Protocol Relating to theStatus of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267;International Covenant on Economic, Social, Cultural,Civil, and Political Rights; G.A. Res. 2200A, 21 U.N.GAOR, Supp. (No. 16) 49, U.N. Doe. A16316 (1966);International Convention on the Elimination of all Formsof Racial Discrimination, 660 U.N.T.S. 195 (1966); Con-vention Relating to the Status of Stateless Persons, Sept.28, 1954, 360 U.N.T.S. 117 (registered June 6, 1960);Convention on Political Rights of Women, March 31,1953, 193 U.N.T.S. 135 (registered July 7, 1954); ProtocolAmending the Slavery Convention Signed at Geneva on25 September 1926, Dec. 7, 1953, 182 U.N.T.S. 51;Convention Relating to the Status of Refugees, July 28,1951, 189 U.N.T.S. 137 (registered April 22, 1954); Con-vention on the Prevention and Punishment of the Crimeof Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (registeredJan. 12, 1951).

16 The Universal Declaration of Human Rights, U.N.GAOR, 217A, U.N. Doc. A1810 (1948) provides: "1.Everyone has the right to seek and to enjoy in othercountries asylum from persecution. 2. This right may notbe invoked in the case of prosecutions genuinely arisingfrom non-political crimes or from acts contrary to thepurposes and principles of the United Nations." It shouldbe noted that while voting members of the GeneralAssembly unanimously approved the Declaration, eightstates abstained: Byelorussian S.S.R., Czechoslovakia,Poland, Saudi Arabia, Ukrainian S.S.R., U.S.S.R, Unionof South Africa, and Yugoslavia. The Soviet Union didsign A Convention for the Prevention and Punishment of Terrorismin 1937 at Geneva. This resolution was never passed.Apparently Soviet policy, at least prior to the Afghani-stan invasion, rejects international terrorism as a politicaloffense. See Gold, Non-extradition for Political Offenses: TheCommunist Perspective, 11 HARV. INT'L L.J. 191,202 (1970).

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EXTRADITION OF POLITICAL TERRORISTS

acts which are necessary and corollary to political

activity, not to sanction gratuitous assaults on hu-man life. Acts of international terrorism directed

at civilians,17 whether undertaken by governments,

quasi-governments, or liberation movements, poseserious threats to world order and stability. Consid-

ering the vulnerability of the world community todestructive use of scientific and technological ad-

vancement, the ultimate impact of terrorist activity

is yet unknown. Nevertheless, terrorists, armed withincendiary, chemical, biological, or even nuclear

weapons presently might be capable of maiming

or killing hundreds or thousands in a single attackwithout regard to the status or identity of their

victims.'8 Such activities threaten basic humanrights as surely as does government repression ofdissent.'9 Furthermore, actions aimed at disrupting

various vital services might result in more anarchy

than change of government. 2°

Commentators have thus challenged on both a

philosophic and practical level the view that inter-national terrorist activities, whether undertaken bygovernments or individuals, fall within the samepurview of traditional human rights as either dis-

sent or revolution.2 ' One author in the field has

offered the following distinction:

Although rebellion cannot be separated from con-

17Terrorism may be defined in a number of ways

depending upon the extent and nature of the activitiesundertaken. See Lowry, Terrorism and Human Rights:Counter-Insurgewy and Necessity at Common Law, 53 NOTREDAME LAw. 49, 66 (1977); Tran-Tam, Crimes of Terrorismand International Criminal Law, in A TREATISE ON INTERNA-TIONAL CRIMINAL LAW 490 (M. Bassiouni ed. 1973). Forpurposes of this article, however, the essential elementsof international terrorism are: (1) the involvement ofcitizenry of two or more countries or of acts occurring inone country committed by nationals of another country;(2) the involvement of a violent criminal act; and (3) theaim of creating overwhelming fear for politically coercivepurposes within a country. R. FRIEDLANDER, TERRORISM:

DOCUMENTS OF INTERNATIONAL AND LOCAL CONTROL 3-4(1979).

IS See Jenkins & Rubin, New Vulnerabilities and the Ac-quisition of New Weapons by Non-government Groups in EVANS

& MURPHY, LEGAL ASPECTS OF INTERNATIONAL TERRORISM

221 (1978).19 The Universal Declaration of Human Rights, U.N.

Doc. A/181 1, while seeking to guarantee political dissent,also seeks to guarantee a social and international orderwhich provides that everyone shall have the right to life,liberty, and security of the person. See also Paust, Nonpro-teced Persons or Things in EVANS & MURPHY, supra note 18,at 354.

2See Jenkins & Rubin, supra note 18. The authorsdiscuss the impact of terrorist activities on such modemsystems as water, transportation, energy, communication,and computerized management and information systems.

21 See M. BASSIOUNI, INTERNATIONAL TERRORISM AND

flict, violence directed against innocent parties isdestructive not only of law and legal systems, but ofcivilized society. It is true that revolution and re-bellion are recognized remedies in customary inter-national law. The difference between legality andillegality, however is that violence directed againstgovernments and governmental officials is not aninternational crime (except for an attack upon ahead of state) whereas terror, violence directedagainst internationally protected personnel andnoncombatant third parties, is a criminal act. Ter-rorist activity on the international level is basicallya political maneuver designed to disrupt personalfreedom and impair fundamental human rights. Inthis sense, international terrorism represents abom-inable means utilized for contemptible ends."2

Expressing similar concerns in its administrationof the ninety-three extradition treaties now in

force,23 the United States has strictly construed

POLITICAL CRIMES (1973) [hereinafter cited as TERROR-

IsM]; M. BAssioum, INTERNATIONAL EXTRADITION AND

WORLD PUBLIC ORDER (1974) [hereinafter cited as ExTRA-DonON]; A. CAMUS, RESISTANCE, REBELLION AND DEATH(1963); EVANS & MURPHY, supra note 18; R. FRIEDLANDER,

supra note 17.2R. FRIEDLANDER, supra note 17, at 44.2See 18 U.S.C. § 3181 (Supp. 11 1978) (Appendix C).

The United States has entered into bilateral extraditiontreaties with the following nations:Albania GreeceArgentina GuatemalaAustralia GuyanaAustria HaitiBahamas HondurasBarbados HungaryBelgium IcelandBolivia IndiaBrazil IraqBulgaria IrelandBurma IsraelCanada ItalyChile JamaicaColumbia JapanCongo KenyaCosta Rica LatviaCuba LesothoCyprus LiberiaCzechoslovakia LiechtensteinDenmark LithuaniaDominican Republic LuxembourgEcuador MalawiEgypt MalaysiaEl Salvador MaltaEstonia MauritiusFiji MexicoFinland MonacoFrance NauruGambia NetherlandsFed. Repub. Germany New ZealandGhana NicaraguaGranada Nigeria

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LUBET AND CZACKES

these laws when terrorist activities are involved.Former Secretary of State Cyrus Vance, for exam-ple, has stated on the floor of the Senate that theUnited States seeks to apprehend, bring to trial,and penalize international terrorists.

24

The policy of providing asylum for dissidentswithout becoming a haven for terrorists is easier tostate than to implement.2 5 All terrorists, and cer-

NorwayPakistanPanamaPapua New GuineaParaguayPeruPolandPortugalRomaniaSan MarinoSierra LeoneSingaporeSouth AfricaSpainSri Lanka

SurinamSwazilandSwedenSwitzerlandTanzaniaThailandTongaTrinidad and TobagoTurkeyUnited KingdomUruguayVenezuelaYugoslaviaZambia

I think the president and the administration hasmade it very clear that we do not condone or acceptterrorism in any way, that we oppose all of itsaspects, and we will do everything we can to seethat those who are involved in it are apprehendedand are brought to trial and penalized for theiraction.

An Act to Combat International Terrorism: Hearings on S. 2236Before the Senate Comm. on Governmental Affairs, 95th Cong.,2d Sess. 30 (Jan. 23, 1978) (statement of Secretary ofState Cyrus Vance).

25 In the trial of Ziyad Abu Eain, Louis Fields, amember of the Office of the Legal Advisor of the De-partment of State testified that "[i]t is the view of theDepartment of State that indiscriminate use of violenceagainst civilian populations, innocent, is a prohibited act,and as such is a common crime of murder, punishable inboth states." In re Abu Eain, No. 79 M 175, mem. at 17(quoting record at 1041). The State Department alsosubmitted the following statement of policy, signed byMr. Knute E. Malmborg, the Assistant Legal Advisordirectly responsible for international extradition matters:

Murder and causing serious bodily harm are pa-tently not political offenses but common crimes. Iunderstand that the accused asserts that the bomb-ing (in Tiberias on May 14, 1979) was politicallymotivated. Based upon my examination of the evi-dence and the official definition of terrorism, I haveconcluded that, whatever the motivation, plantingand exploding a bomb with intent and result ofkilling and wounding civilians indiscriminately isnot an offense of a political character but an act ofterrorism, pure and simple. It is the view of theDepartment of State that Article VI, paragraph 4,of the treaty is not applicable to acts of terrorism.

Record at 945. Similarly, the view presented by theUnited States to the United Nations Ad Hoc Committee

tainly all invoking the political offense exemption,claim the mantle of political justification. 'Courtshave found drawing a line of demarcation betweenprotected political activity and criminal terror tobe quite difficult.

Neither Congress nor the Supreme Court hasdefined the term "political offense., 26 Conse-quently, the lower courts are left to decide the issueon a case by case basis. Although the courts havepaid considerable attention to the substantive law,they have not developed a coherent proceduralapproach to the political offense exemption.

THE EXTRADITION PROCESS IN THE UNITED STATES

Extradition of a fugitive may be based uponcomity or reciprocity, or upon a treaty obligation.

2 7

In certain extreme cases, a country might use ab-duction, kidnapping, or some informal procedureto obtain jurisdiction over an individual.28 Al-though the extent of the United States' obligationsto grant an extradition request absent a treaty was

on International Terrorism was that violence againstcivilians falls beyond the scope of legitimate politicalactivity:

The subject of international terrorism has, as theSecretary-General has already emphasized, nothingto do with the question of when the use of force islegitimate in international life. On that question,the provisions of the Charter, general internationallaw, and the declarations and resolutions of theUnited Nations organs, in particular those of theGeneral Assembly relating to national liberationmovements, are not and cannot be affected. Buteven when the use of force is legally and morallyjustified, there are some means, as in every form ofhuman conflict, which must not be used: the legit-imacy of a cause does not in itself legitimize the useof certain forms of violence, especially against theinnocent. This has long been recognized even in thecustomary law of war.

U.N. Doc. A/C 6/418 (1979).26 In Karadzole v. Artukovic, 355 U.S. 393 (1958), revg

per curiam, 247 F.2d 198 (9th Cir. 1957), the most wellknown recent Supreme Court opinion on political extra-dition, the Court simply remanded the case to the districtcourt without commenting on the definition of a politicaloffense.

27 Extradition based solely upon comity or reciprocityoften has been resorted to by a number of foreign nations.See generally Evans, Legal Bases of Extradition, 16 N.Y.L.F.525, 530 (1930).

28The kidnapping of Adolf Eichmann is a prime ex-ample of such irregular seizures. Attorney General ofIsrael v. Adolf Eichmann, 36 I.L.R. 277 (1962). In certaininstances, deportation of an individual may result in defacto extradition. See O'Higgins, "Disguised Extradition":The Soblen Case, 27 MOD. L. REV. 521 (1964); see also M.BASSIOUNi, EXTRADITION, supra note 21, at 121-20 1.

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EXTRADITION OF POLITICAL TERRORISTS

the subject of much debate in the nineteenth cen-turys it is now generally well established that theUnited States will honor an extradition requestonly pursuant to its treaty obligations.3° Further-more, Congress has required implementation ofcertain safeguards before returning an individualto the requesting country.

3 '

Extradition is a criminal proceeding32 which theauthorized representative of a requesting countrymay initiatess by filing a verified complaint withthe nearest court having jurisdiction over the in-dividual.m A judicial officer then may issue a war-

29see generally Evans, supra note 27.

3 0Valentine v. United States ex ret. Neidecker, 299 U.S.

5 (1936); Factor v. Laubenheimer, 290 U.S. 276 (1933);United States v. Rauscher, 119 U.S. 407 (1886); see alsoEvans, supra note 27, at 528 (citing I MOORE, A TREATIsEON EXTRADITION AND INTERsTATE RENDITION 23 (1891)),where Professor Evans notes, the Arguiles case is the onlyknown case where the United States granted extraditionin the absence of a treaty. Arguilles was actively involvedin slave trading and was turned over to the Spanishgovernment by Executive Order in 1864 as an act ofcomity.

3'18 U.S.C. § 3184 (1976) provides:Whenever there is a treaty or convention for

extradition between the United States and anyforeign government, any justice or judge of theUnited States, or any magistrate authorized so todo by a court of the United States or any judge ofa court of record of general jurisdiction of any State,may, upon complaint made under oath, chargingany person found within his jurisdiction, with hav-ing committed within the jurisdiction of any suchforeign government any of the crimes provided forby such treaty or convention, issue his warrant forthe apprehension of the person so charged, that hemay be brought before such justice, judge, or mag-istrate, to the end that the evidence of criminalitymay be heard and considered. If, on such hearing,he deems the evidence sufficient to sustain thecharge under the provisions of the proper treaty orconvention, he shall certify the same, together witha copy of all the testimony taken before him, to theSecretary of State, that a warrant may issue uponthe requisition of the proper authorities of suchforeign government, for the surrender of such per-son, according to the stipulations of the treaty orconvention; and he shall issue his warrant for thecommitment of the person so charged to the properjail, there to remain until such surrender shall bemade.s2Grin v. Shine, 187 U.S. 181 (1902); Rice v. Ames,

180 U.S. 371 (1901); First National City Bank of NewYork v. Aristequieta, 287 F.2d 219 (2d Cir. 1960), vacatedas moot, 375 U.S. 49 (1963).

33Although the representative often will be a consul ordiplomatic officer, it is only necessary that the personfiling the complaint have authorization from the request-ing country. See United States ex reL Caputo v. Kelly, 92F.2d 605, cert. denied, 303 U.S. 635 (1938).

34A careful reading of 18 U.S.C. § 3184 reveals that

rant for the individual's arrest and further deten-tion if the complaint satisfies all requirements."Once the individual is in custody, the presidingjudicial officer may set or deny bail.36

The requesting nation may supplement this pro-cedure by filing a requisition with the Secretary ofState asking that the accused be returned in ac-cordance with the terms of the existing treaty. Therequesting nation may file the requisition eitherprior to or during the judicial proceedings. If filedprior to the judicial proceedings, the Secretary ofState may issue a preliminary mandate to theproper judicial officer on behalf of the foreigngovernment. The mandate usually includes a copyof the verified complaint as well as other support-ing documentation. The judicial officer then issuesa warrant as if the foreign country had itself filedthe complaint.37

jurisdiction over the extradition proceedings is vested injudicial persons and not in any court. The theory under-lying-this delegation of power assumes that extradition isnot a judicial function, but rather one reposed in theDepartment of State. Laubenheimer v. Factor, 61 F.2d626 (7th Cir. 1932). However, it is generally agreed thatin the first instance, extradition is a matter of judicialcompetence. See Jimenez v. Aristeguieta, 290 F.2d 106,108 (1961) where Judge Brown, in his concurrence,stated:

Repeated often in the cases is the loose generalitythat the extradition hearing is not a judicial pro-ceeding. It may not be when measured by the usualindicia of a formal judgment of commitment, ap-peal, and the like. But the very essence of 18U.S.C.A. § 3184 is a reflection of the fundamentalconcept among civilized nations that there shall bea non-partisan, unbiased, objective hearing by ajudicial officer acting solely because of his judicialposition-and hence training and discipline-to de-termine whether there is a sufficient basis to sustainthe charge under the treaty.'The authorized representative may file the com-

plaint upon an information or belief that is properlysworn and attested. Ordinarily the complaint shouldinclude the name of the individual sought; the nature ofthe extradition treaty between the United States and therequesting country; sufficient information to show thatthe crime charged is an offense under the treaty andunder both the laws of the area where the complaint isfiled and the laws of the requesting country; a certifiedcopy of the indictments or conviction of the individualsought by the requesting country by competent authori-ties showing the offense charged; accompanying affida-vits, documents and other pertinent evidence proving theforeign law and the facts alleged. M. BASSIOUNI, EXTRA-DITION, supra note 23, at 514; see also Note, United StatesExtradition Procedures, 16 N.Y.L.F. 420 (1970).

36In re Gannon, 27 F.2d 362 (E.D. Pa. 1928). Bail neednot be set because procedures for release on bail arepurely statutory and are not provided for in 18 U.S.C. §3184.37 See note 33 supra.

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LUBET AND CZACKES

The role of the court of extradition is ultimatelyto determine whether there is sufficient evidence insupport of the request.8 The requesting countrybears the burden of establishing probable cause tobelieve that the accused committed the chargedoffense.3 9 To reach the issue of probable cause, thecourt must make three additional findings. First,the extradition treaty must be in effect and appli-cable to the case.40 Second, the person named inthe complaint must be the same individual who isbefore the magistrate or extraditing judge.4 ' Fi-nally, the "rule of dual criminality" requires thatthe acts charged constitute a criminal offense inboth the requesting country and the forum state.4 2

This decision-making process, which has been rec-ognized either implicitly or explicitly by mostcourts of extradition, 43 does not specifically con-template a political offense defense. The defense,however, is clearly invocable as either a challengeto the applicability of the treaty or to the crimi-nality of the acts charged. In either case, it remainsunresolved which party bears the burden of pro-ducing evidence on this issue and which bears theultimate burden of proof.

The Supreme Court has analogized the extradi-tion hearing to a preliminary hearing in a criminalcase.44 Because the hearing is not a plenary pro-ceeding involving the actual guilt or innocence ofthe accused,4 ' the judicial officer may afford therequesting country wide latitude in producing ev-idence to establish the commission of the offenseand probable cause. The evidence may consist ofhearsay in the form of affidavits, depositions, orother pertinent documentation. The requestingcountry need not produce witnesses.46

s8Peroffv. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976),

cert. denied, 429 U.S. 1062 (1977); see also Benson v.MacMahon, 127 U.S. 457, 460 (1888).

39Glucksman v. Henkel, 221 U.S. 508, 512 (1911);Peroff v. Hylton, 542 F.2d at 1249; United States v.Artukovic, 170 F. Supp. 383, 388 (1959).40See Ivancevic v. Artukovic, 211 F.2d 565, (9th Cir.),cert. denied, 348 U.S. 818 (1954). See also Note, supra note37, at 441.4 1lIvancevic v. Artukovic, 211 F.2d 565.42 Factor v. Laubenheimer, 290 U.S. 276 (1933).43See M. BASSIOUNI, EXTRADITION, supra note 21, at 515-24, and cases cited therein.

"'Charlton v. Kelly, 229 U.S. 447 (1913); Benson v.McMahon, 127 U.S. 457.45Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969), cert.denied, 398 U.S. 903 (1970).

4618 U.S.C. § 3190 (1976) provides:Depositions, warrants, or other papers or copiesthereof offered in evidence upon the hearing of anyextradition case shall be received and admitted asevidence on such hearing for all the purposes ofsuch hearing if they shall be properly and legally

Evidence admissible on behalf of the accused isrestricted, again on the theory that the proceedingis preliminary. 7 The extraditee has a limited rightto present, and even subpoena,4 8 witnesses materialto his defense. However, the court only will permitthe defendant to introduce evidence which is of-fered either to show that he is not the actual personbeing sought by the requesting country,49 or toexplain the circumstances of the offense.- ° Thedefendant may not present any other evidence indefense of the charge, such as an alibi, because itwould have no bearing on whether the requestingcountry has established a prima facie case. 5' The

authenticated so as to entitle them to be receivedfor similar purposes by the tribunal of the foreigncountry from which the accused party shall haveescaped, and the certificate of the principal diplo-matic or consular officer of the United States resi-dent in such foreign country shall be proof that thesame, so offered, are authenticated in the mannerrequired.47Charlton v. Kelly, 229 U.S. at 461-62.818 U.S.C. § 3191 (1976) provides:On the hearing of any case under a claim of extra-dition by a foreign government, upon affidavitbeing filed by the person charged setting forth thatthere are witnesses whose evidence is material to hisdefense, that he cannot safely go to trial withoutthem, what he expects to prove by each of them,and that he is not possessed of sufficient means, andis actually unable to pay the fees of such witnesses,the judge or magistrate hearing the matter mayorder that such witnesses be subpoenaed; and thecosts incurred by the process, and the fees of wit-nesses, shall be paid in the same manner as in thecase of witnesses subpoenaed in behalf of the UnitedStates.496 M. WHITEMAN, DasST OF INTERNATIONAL LAW,

998-99 (1968).'0 Collins v. Loisel, 259 U.S. 309, 315-16 (1922); Charl-

ton v. Kelly, 229 U.S. at 462. Cf Sindona v. Grant, 461F. Supp. 199, 204 (S.D.N.Y. 1978); Application ofD'Amico, 185 F. Supp. 925, 929-30 (S.D.N.Y. 1960).

r5 Collins v. Loisel, 259 U.S. at 315-16; Shapiro v.Ferrardino, 478 F.2d 894, 901 (2d Cir. 1973), cert. dis-missed, 414 U.S. 884 (1974). In Collins the Supreme Courtnoted that to allow the accused to present exculpatoryevidence:

would give him the option of insisting upon a fullhearing and trial of his case here; and that mightcompel the demanding government to produce allits evidence here, both direct and rebutting, in orderto meet the defense thus gathered from everyquarter. The result would be that the foreign gov-ernment, though entitled by the terms of the treatyto the extradition of the accused for the purpose ofa trial where the crime was committed, would becompelled to go into a full trial on the merits in aforeign country, under all the disadvantages of sucha situation, and could not obtain extradition untilafter it had procured a conviction of the accusedupon a full and substantial trial here. This wouldbe in plain contravention of the intent and meaning

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EXTRADITION OF POLITICAL TERRORISTS

accused, however, may offer evidence of the polit-ical nature of the crime, to show that the offense isnot extraditable under the treaty. Evidence of thecrime's political nature is admissible exclusively toexplain the circumstances of the crime. It is notadmissible, for example, in aid of a defense ofjustification or necessity.52 The decision as to theadmissibility of evidence lies within the sound dis-cretion of the extraditing judge, and it is notreversible unless it negates the purposes of thehearing.5

Review of the magistrate's decision within thejudicial system is limited. Although upon an ad-verse ruling, the requesting country may refile itsrequest,'" the particular ruling terminates the pro-ceeding and is not thereafter subject to direct ap-peal to a higher court. This restriction reflects thetheory that, because ajudicial officer administeringthe hearing does not sit as a member of any court,his decision is not a final order open for directappeal. However, the accused may collaterally at-tack the decision by filing a petition for a writ ofhabeas corpus.55 The only issues generally review-able in these proceedings are those relating tojurisdiction, the existence, application, or interpre-tation of the treaty, and the identity of the individ-ual appearing at the hearing.56

If the courts ultimately authorize extradition,the Department of State must independently de-cide whether to deliver the accused to the request-ing government.5 7 The Secretary of State will not

of the extradition treaties.259 U.S. at 316 (quoting In re Wadge, 15 F. 864, 866(S.D.N.Y.), aff/d, 16 F. 332 (1883)).

026 M. WHITEMAN, supra note 49, at 999-1001. Evi-dence concerning the motives of the requesting govern-ment or% the procedures which await the accused uponhis return to the requesting country are irrelevant to thejudicial officer's determination and hence inadmissible.Peroff v. Hylton, 542 F.2d at 1249; Garcia-Guillern v.United States, 450 F.2d 1189, 1192 (5th Cir. 1971), cert.denied, 405 U.S. 989 (1972); Wacker v. Bisson, 348 F.2d602 (5th Cir. 1965); Sindona v. Grant, 461 F. Supp. at204.

53See Collins v. Loisell, 259 U.S. 309; Merino v. UnitedStates Marshall, 326 F.2d 5 (9th Cir.), cert. denied, 377U.S. 997 (1963).

54See 2 M. BASSIOUNI & V. NANDA, A TREATISE ON

INTERNATIONAL CRIMINAL LAW 367-70 (1973)."528 U.S.C. § 2241 (1976).56Fernandez v. Phillips, 268 U.S. 311 (1925); Garcia-

Guillern v. United States, 450 F.2d 1189.5718 U.S.C. § 3186 (1976) provides:The Secretary of State may order the person com-mitted under sections 3184 or 3185 of this title to bedelivered to any authorized agent of such foreigngovernment, to be tried for the offense of whichcharged.

consider the request until the completion of alljudicial proceedings. 8 Further action by the Sec-retary will be foreclosed if the court holds that anextraditable offense did not occur within the mean-ing of the treaty. If the courts find the accusedextraditable, the secretary has broad discretion todeny extradition if conditions so warrant. Gener-ally, the Department of State conducts a de novoexamination of the issues and court proceedingsand bases its decision on the available record.59

The Secretary, however, may consider matters out-side the record such as competing requests fromdifferent countries, a time lapse barring prosecu-tion, or public policy in light of current interna-tional relations.' Thus, the courts often defer con-sideration of whether an individual is being soughtfor political reasons to the Department of State.61

In addition to reviewing matters beyond therecord, the Secretary may differ from the commit-ting magistrate on the weight or sufficiency of theevidence.62 Such a disparate reading of the recordoccurred when the Russian government requestedthe extradition of Krishian Rudewitz in 1908 oncharges of murder and arson. A committing mag-istrate held that the offenses were not political andthus certified extradition. After his own carefulreview of the record, however, the Secretary ofState denied the request because he determinedthat the charges were the result of activities under-taken by the accused as a member of the SocialDemocratic Labor Party.63

Despite this broad discretion, the Secretary hasin fact seldom overruled a court decision in favorof extradition.6' This apparent deference to the

Such agent may hold such person in custody, andtake him to the territory of such foreign government,pursuant to such treaty.

A person so accused who escapes may be retakenin the same manner as any person accused of anyoffense.584 G. HACKWORTH, DIoESr OF INTERNATIONAL LAw §

334 (1944) (citing a memorandum from counselor An-derson of the Department of State to Secretary of StateKnox, February 1912, Department of State File211.42R67116).

59 See Note, Executive Discretion in Extradition, 62 COLUM.L. REv. 1313 (1962); see also 4 G. HAcKWORTH, supra note58, at § 334.

6"See 4 G. HACKWORTH, supra note 58, at § 334.61Garcia-Guillern v. United States, 450 F.2d 1189; Inre Lincoln, 228 F. 70 (E.D.N.Y. 1915), affidper curiam, 241U.S. 651 (1916); In re Locatelli, 468 F. Supp. 568(S.D.N.Y. 1979); In re Gonzalez, 217 F. Supp. 717(S.D.N.Y. 1963).

62See 4 G. HAcKwoRTH, supra note 58, at § 334.631d.6 See generally Note, supra note 59.

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LUBET AND CZACKES

courts reflects a political sensitivity to internationalestime. Judicial determination of extradition issuespermits the Executive Branch to remove itself frompolitical and economic sanctions which might re-sult if other nations believe the United States laxin the enforcement of its treaty obligations.

Thus, the role of the judicial officer in the extra-dition process, although theoretically preliminaryto that of the State Department, might well bedeterminative of the entire proceeding and mighteffectively preempt the Executive Branch in theconduct of American foreign policy. From a prac-tical perspective, the danger of vesting this deci-sion-making in the judiciary is that a judicial offi-

cer hearing the case might lack the expertise todetermine the p 6 litical or nonpolitical nature of anoffense arising in an intricate international factsituation. This danger is especially acute with re-spect to cases involving terrorists because of thecomplex and ambiguous interplay between theiravowed goals and actual conduct.

DEVELOPMENT OF THE SUBSTANTIVE LAw

The question of what constitutes a political of-fense has been the subject of international scholarlydebate, diplomatic discussion, and judicial opin-ion.'s Certain international agreements to whichthe United States is a party prohibit the signatoriesfrom treating slavery,6 genocide,6 7 and aircrafthijacking as political offenses.69 Several Europeanbilateral extradition treaties provide that acts

65 See generally 4 G. HACKWORTH, supra note 58, at §§313-17; 2 C. HYDE, INTERNATIONAL LAW CHIEFLY ASINTERPRETED AND APPLIED BY THE UNITED STATES 1019-26 (2d ed. 1945); 6 M. WHITEMAN, supra note 49, at 799-858; See also sources cited in note 21 supra. Forsythe,Political Prisoners: The Law and Politics of Protection, 9 VAND.J. TRANSNAT'L L. 295 (1976); Garcia-Mora, The Nature ofPolitical Offenses: A Knotty Problem of Extradition Law, 48VA. L. REV. 1226 (1962).

6 See Slavery Convention of 25 September 1926, asamended, 212 U.N.T.S. 17 (registered July 7, 1955);Supplementary Convention on the Abolition of Slavery,Sept. 7, 1956, 266 U.N.T.S. 3 (registered April 30, 1957).

n See Convention on the Prevention and Punishmentof the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277(regstered Jan. 12, 1951).

See Convention on Aviation: Offenses and CertainOther Acts Committed on Board Aircraft, Sept. 14, 1963,20 U.S.T. 2941, T.I.A.S. No. 6788, 704 U.N.T.S. 219(Effective Dec. 4, 1969); Convention for the Suppressionof Unlawful Seizure of Aircraft (Hijacking), Dec. 16,1970, 22 U.S.T. 1641, T.I.A.S. No. 7192 (effective Oct.14, 1971).

69 Garcia-Mora, Crimes Against Humanity and the Principleof Nonextradition of Political Offenders, 62 MICH. L. REV. 927(1964).

against heads of state and diplomatic personnel arenonpolitical.70 Several more recent treaties pro 'idethat offenses aimed at transportation or commu-nication networks are extraditable.7' Others havegone even further and include offenses against

domestic laws relating to firearms, explosives, orincendiary devices. 72 Finally, certain treaties pro-vide that any drug offense is extraditable.

73

Political offenses historically have been definedas either relative or purely political. Relative polit-ical offenses are otherwise common crimes com-mitted in connection with a political act, such as ahomicide committed in the course of a generaluprising.74 If the nexus between the crime and thepolitical act is sufficiently close, the offense is "rel-

atively political" and not extraditable; if the con-nection is remote or non-existent the accused may

be extradited. 75 Purely political offenses are actsaimed directly at the government and are defini-tionally limited to treason, sedition, and espionage.It is generally agreed that the purely political

offenses are not extraditable.76

Purely political offenses are easily recognizable,whereas relative political offenses often are difficultto distinguish from common crimes unconnectedwith a political act. Accordingly, the case law in

the political offenses area has concentrated on thedefinition and interpretation of relative politicaloffenses. In order to gain a full and critical under-

70 M. BASS1OUNi, EXTRADITION, supra note 21, at 410.7' Article II of the Extradition Treaty between the

United States and New Zealand provides that the follow-ing shall be deemed to be extraditable offenses: "26.[a]rson and damage to property, utilities, or means oftransportation or communication by fire or explosive;[and] 27. [a]ny malicious act done with intent to causedanger to property or endanger the safety of any personin connection with any means of transportation." Jan.12, 1970, 22 U.S.T. 1, 2-3, T.I.A.S. No. 7035 (effectiveDec. 8, 1970).

72 See Extradition Treaty, United States-Italy, Jan. 18,1973, 26 U.S.T. 493, T.I.A.S. No. 8052 (effective March11, 1975).

73 Article II of the Convention on Extradition betweenthe United States and France provides that the followingshall be deemed to be extraditable offenses: "16. Offensesagainst the laws relating to the traffic in, possession, orproduction or manufacture of, opium, heroin, and othernarcotic drugs, cannabis, hallucinogenic drugs, cocaine,and its derivatives, and other dangerous drugs and chem-icals; or poisonous chemicals or substances injurious tohealth." Feb. 12, 1970, 22 U.S.T. 407, 409, T.I.A.S. No.7075 (effective April 3, 1971).

74 Garcia-Mora, supra note 65, at 1239.75 See, e.g., In re Ezeta, 62 F. 972 (1894).76 See 6 M. WHITEMAN, supra note 49, at 800; Garcia-

Mora, supra note 65.

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EXTRADITION OF POLITICAL TERRORISTS

standing of the American approach to relativepolitical offenses it is instructive first to examineBritish precedent on which the American courtsinitially relied.

THE BRITISH APPROACH

British extradition law has been governed bystatute since the passage of the Extradition Act of1870.77 This act specifically provides exceptions foroffenses of a political character and offenses forwhich the offender has been sought with the intentto punish him for a political action. 78 The term"political character," however, is not defined eitherin the Extradition Act or elsewhere in British stat-utes. The court in In re Castolini79 made the firstjudicial attempt to supply content to the phrase.Castolini created the basic substantive test whichhas dominated Anglo-American law in this areasince 1891.

Angelo Castolini was arrested in England afterSwitzerland sought his extradition for the murderof Luigi Rossi, a Swiss government official. Thepeople of the Swiss town of Bellizona had peti-tioned the government for revision of the Consti-tution of the province. The government, appar-ently fearing a loss of power, refused to hold apopular vote on the issue as required by law. Thetownspeople then raided the town's arsenal andmarched to the municipal palace. After being de-nied entry to the building by Rossi and anothergovernment official, the group stormed the build-ing. Castolini, who was one of the first to enter,shot Rossi as he appeared in the palace's passage-way. The record is silent as to whether Rossi offeredany armed resistance, but testimony by a leader ofthe uprising indicates that he did not.8° Followingthe takeover of the palace a provisional governmentcontrolled the province until the government of theRepublic restored order.

Justice Denman concluded that the events inBellizona at the time of the killing amounted to a

77 Extradition Act, 1870, 33 & 34 Vict., c. 52.78 The Extradition Act of 1870, 33 & 34 Vict., c. 52,

reads in pertinent part:(1) A fugitive criminal shall not be surrendered ifthe offense to which is surrendered or demanded isone of a political character or if he proves to thesatisfaction of the police magistrate or the courtbefore whom he is brought on habeas corpus, or tothe Secretary of State that the requisition for hissurrender has in fact been made with a view to tryto punish him for an offense of a political character.

[1891] 1 Q.B. 149.80 Id. at 151.

state of war within the province and that Castoliniwas an active participant at a very early stage ofthe uprising.8 ' In finding Castolini not extradita-ble, Justice Denman formulated the now classictest for application of the political offense excep-tion: first, there must be a political disturbance atthe time of the offense; and second, the offensemust constitute an overt act incidental to or partof the political disturbance.

8 2

A terrorist attack by an avowed anarchist pro-vided the British courts with opportunity to furtherdefine the Castolini political disturbance test twoyears later in In re Meunier.83 Meunier had set offvarious explosive devices at the Cafe Very in Parisand in military barracks outside the city. Theexplosions killed several individuals, and Meunier

sought refuge in England. The French governmentrequested his extradition for murder, attemptedmurder, and willful damage to buildings. A Britishdivisional court rejected Meunier's habeas corpus

petition and held the political offense exceptioninapplicable to anarchist-inspired offenses.

This holding reflected hostility to the anarchistmovement which characterized the period. Non-aligned terrorist-type activities aimed at promotingdisorder and disharmony were viewed not as polit-ically related but as a common evil unworthy ofprotection. Justice Case spoke for the Court:

[I]n order to constitute an offense of a politicalcharacter, there must be two or more parties in thestate, each seeking to impose the Government oftheir own choice on the other, and if the offense iscommitted by one side or the other in pursuance ofthe object, it is a political offense, otherwise not. Inthe present case there are not two parties in theState, each seeking to impose the Government oftheir own choice on the other for the party withwhom the accused is identified by the evidence, andby his own voluntary statement, namely the partyof anarchy, is the enemy of all Governments. Theirefforts are directed primarily against the separatebody of citizens.8

The Court's rationale appears to address both

the intent of the offender and the impact of his act.

8'Id at 152.

2 Id. at 159. According to Justice Denman:The question really is, whether, upon the facts, it isclear that the man was acting as one of a numberof persons engaged in acts of violence of a politicalcharacter with a political object, and as part of thepolitical movement and rising in which he wastaking part.mId. [1894] 2 QB. 415.84 Id. at 419.

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LUBET AND CZACKES

An offense which is intended only to disrupt thesocial order, but not to maintain or alter the gov-ernment, is not political. Likewise, an offense hav-ing its impact upon the citizenry, but not directlyupon the government, does not fall within thepolitical offense exception.

The English courts first considered the motives

of a requesting government in 1895. In In re Arlonthe French government sought a fugitive oncharges of embezzlement and fraud.85 The accusedclaimed that the French government actuallysought to regain jurisdiction over him in order tointerrogate him about a political matter. He there-fore argued that he was not extradictable because"the requisition for his surrender ha[d] in fact beenmade with a view to punish him for an offense of

a political character."as Rejecting this argument,Lord Russell held that the provision under whichArton claimed protection was analogous to thedoctrine of speciality,87 and that it was therefore

outside the province of the courts to determine thegood faith of the requesting country.88 He furtherheld that an offense of a political character mustbe readily defineable and not subject to futuredefinition.8

9

These three cases provided a relatively narrowframework for the application of the political of-fense exception until the middle of this century: apolitical offense was defined as incidental to orpart of a political disturbance, excluding crimesaimed at the civilian population or undertakenonly to create social disorder: The good faith of therequesting country was not questioned. In 1955,however, the case of Regina v. Governor of BrixtonPrison, ex pare Kolczynskzo extended the political

offense exception.In Kolczynski the British court first allowed the

defense to be raised in the absence of a politicaldisturbance in the requesting country. 9' The caseinvolved seven crew members of a Polish fishing

trawler who sought political asylum in Englandafter taking control of their boat from a communistcrew in international waters. The Polish govern-ment requested extradition of the sailors for the

[1896] 1 Q.B. 108; [1896] 1 Q.B. 509."6 [1896] 1 QB. 108.87 The doctrine of specialty allows the requesting coun-

try to try the accused only for the offense for whichextradition was sought. See note 128 infra.

88 [1896] 1 Q.B. at 115.89 Id. at 114. See also concurring opinion of Wills, J. Id.

at 115-16.9 [19541 1 Q.B. 540; See discussion in I.A. SHEARER,

supra note 12, at 175-78.9' [19541 1 Q.B. 540.

common crimes of use of force, depriving superiorsand other members of the crew of their freedom,wounding a member of the crew, damaging thetrawler's wireless, and preventing the ship's captainfrom maintaining command, thus exposing thecrew to the danger of calamity at sea and loss oflife.a2 The Court permitted the fishermen to intro-duce various documents showing that any trial inPoland ostensibly for the extradited offenses wouldin fact result in punishment for the treasonous actof defecting to a capitalist country.9 3 This evidenceled the Court to deny extradition under the polit-ical offense exception. Justice Cassels concludedthat extradition was being sought with a viewtoward punishing the defendants for political actsand that therefore the motives of the requestingcountry precluded surrender of the fugitives underthe second part of the Extradition Act.'6 Justice

Goddard, on the other hand, reached the sameresult without emphasizing the motives of the Pol-ish government. Rather, he suggested that a hu-manitarian perspective of changing world condi-tions required a more liberal interpretation of Cas-tolini even where the offenses did not form part ofa general uprising. He reasoned that the evidenceadmitted on the prisoners' behalf showed that theircrimes were political in that they were aimed atthe Polish government which suppressed anymeaningful dialogue within its border.

9 5

Although the justices differed in their reasoning,the ultimate result in Kolczynski was to apply thepolitical offense exception to an act unconnectedto a general disturbance solely because of the mo-tives of the parties involved. The Court's dividedopinion did not make clear whether future deci-sions would rest on the motives of the requestingcountry or on those of the defendant, but it wasapparent that the Court was willing to consider thenature of the requesting government in applying

the political offense exception. The Kolczynski casemarked the British courts' farthest extension of the

political offense exception, and many scholars be-lieved that it offered hope to those who must

commit crimes to escape persecution in their home-land.96

92 1 d. at 543.9 3 See [1955] 3 All E.R. 33.4 [1955] 1 Q.B. at 548.

95 Id. at 549-50 (Goddard, CJ.). It is at least arguablethat such decisions involving humanitarian considera-tions are better left to the executive branch of governmentas in American extradition proceedings.

96 Cantrell, supra note 9; see Garcia-Mora, supra note65, at 1244.

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EXTRADITION OF POLITICAL TERRORISTS

The Kolczynski decision was later refined inSchtraks v. Israel.9 7 In Schtraks the defendant, ShalomSchtraks, had attempted to have his nephew edu-cated as an Orthodox Jew against the wishes of theboy's parents. After hiding the youth in a settle-ment in Israel he fled to England. Israel soughtSchtraks' extradition on the charge of child stealingand perjury. During the extradition proceeding,Schtraks attempted to show the close interrelation-ship of politics and religion within Israel. He alsoattempted to demonstrate that the question ofreligious orthodoxy was a highly charged politicalissue in Israel. The Court, however, refused to findthat the act was political. Although Schtraks' ac-tions were intended to avoid what he perceived aspolitical persecution, the Court concluded thatthey were based ultimately on personal motivationsand that the political nature of the act was only atangential factor.

98

The Court thus declined to adopt a "pure mo-tive" approach. Like the justices in Kolczynski,Viscount Radcliffe pointed out that the test inCastolini was still valid, but not conclusive in deter-mining whether an offense was political.9 Offeringa refinement of the Kolczynski holding, the ViscountRadcliffe stated that it was necessary to evaluatethe objective conditions surrounding the accused'sactions and to determine whether the requestingnation seeks his extradition primarily for "crimi-nal" or for "political" reasons. I°° If the posture ofthe requesting government is politically neutral,then the accused may be extradited regardless ofmotive:

There may, for instance, be all sorts of contendingpolitical organizations or forces in a country, andmembers of them may commit sorts of infractionsof the criminal law in the belief that by so doingthey will further political ends: but if the centralgovernment stands apart and is concerned only to

97 [1962] 3 All E.R. 529.98 Id. at 540.99 Id., where the Justice states:In my opinion the idea that lies behind the phrase"offence of a political character" is that the fugitiveis at odds with the state that applies for his extra-dition on some issue connected with the politicalcontrol or government of the country. The analogyof "political" in this context is with "political" insuch phrases as "political refugee," "political asy-lum" or "political prisoner." It does indicate, Ithink, that the requesting state is after him forreasons other than the enforcement of the criminallaw in its ordinary, what I may call its common orinternational aspect.10o Id.

enforce the criminal law that has been violated bythese contestants, I see no reason why fugitivesshould be protected by this country from its juris-diction on the ground that they are political offend-ers.

01

Reconciling Castolini and Schiraks appears to re-

quire the continued application of the nexus test

to offenses which form part of a disturbance or

uprising. When the exception is claimed for iso-

lated acts, the British courts seem willing to ex-

amine the accused's motives as well as those of the

requesting country. Implicit in this approach is the

courts' constant reevaluation of the political offense

exception in light of the existing international en-

vironment.

THE AMERICAN APPROACH

The approach of the American judiciary to the

political crimes exception has not substantially de-viated from the Castolini test, which required that

an overt act be committed in furtherance of a

political disturbance. The American courts, unliketheir British counterparts, have not been willing to

consider the motivations of either the defendant or

the requesting country. I°2 This narrow interpreta-

tion of the exception may be characterized as both

underinclusive and overinclusive, as it tends to

exempt from extradition all crimes occurring dur-ing a political disturbance, but no offenses which

were not contemporaneous with an uprising.I 03 The

strict adherence to the requirement that the act betied to an uprising or disturbance may operate to

exclude from protection many individual acts of

101 Id.

102 See note 64 supra; see also Peroff v. Hylton, 542 F.2d

1247; Garcia-Guillem v. United States, 450 F.2d 1189.103 See, e.g., United States ex rel. Karadzole v. Artukovic,

170 F. Supp. 383 (S.D. Cal. 1959). CF. Schtraks, v. Israel[1962] 3 All E.R. 529. With regard to the question ofcontemporaneity, Viscount Radcliffe noted:

Generally speaking, the courts' reluctance to offera definition has been due, I think, to the realisationthat it is virtually impossible to find one that doesnot cover too wide a range. This is seen in the veryfull consideration that was given to the question inRe Castioni particularly when counsel for the appli-cant's argument in that case is set against the sub-sequent observations of the threejudges who decidedit, Denman, Hawkins and Stephen, JJ. It was re-called that during the debate of 1866 that precededthe Extradition Act, John Stuart Mill, then a mem-ber of the House of Commons, had suggested as adefinition,"any offence committed in the course ofor furthering of civil war, insurrection, or politicalcommotion." Stephen, J., himself had offered theview in his Histozy of the Criminal Law of England, Vol.

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LUBET AND CZACKES

legitimate political resistance. Conversely, the ov-erinclusive aspect of the approach may operate toprotect common criminals simply because their

crimes occur during times of political disorder.Theoretically, review of certifications of extraditionby the Secretary of State may justify and partiallyremedy the problem of underinclusiveness,'0 4 how-ever, the State Department's traditional policy ofnoninterference has resulted in almost uniform

enforcement of judicial orders of extradition.'0 5 Inthose cases where a strict construction of Castoliniresults in a denial of extradition, the Secretary of

State is, of course, entirely precluded fromacting. 10

6

The narrow interpretation of Castolini was firstadopted by a United States court in an 1894 case,

In re Ezeta,'0 7 involving a request by San Salvadorto extradite its former President, Antonio Ezeta,and four of his military officers from the UnitedStates. The requisition charged these individualswith the crimes of murder, robbery, and arson.These charges allegedly arose from acts that Ezetaand his aides undertook while attempting to main-tain their government against the revolutionarymovement that eventually overthrew them.'0 ° The

trial court held that all but one of the allegedevents were political because they occurred duringa time of armed rebellion within the country. Theexception involved an individual charged with theattempted murder of a civilian. The court heldCastolini inapplicable to this charge because thecrime took place four months prior to the start ofarmed violence in San Salvador. In responding tothe defendant's contention that San Salvador'srequest was politically motivated, the Court de-

2, p. 71, that political offences comprised only thosecrimes that were "incidental to and formed a part ofpolitical disturbances." The court was unanimous inholding Mill's definition to be altogether too wide.The offender must be at least politically motivated.

3 All E.R. at 539.104 See note 64 supra, and accompanying text.10

5 id.'enIn re McMullen, No. 3-78-1099 MG, serves as such

an example.107 62 F. 972 (N.D. Cal. 1894).'08 The acts alleged in the extradition complaint in-

cluded: (1) robbery of a bank to pay soldiers involved infighting revolutionary forces; (2) the murder of a civilianwho was thought to be a spy; (3) the hanging of fourindividuals who refused to defend the then existing gov-ernment against the revolutionary forces; (4) the murderof an individual who helped the revolutionary forces inoverthrowing the Ezeta government; 62 F. 972, 979-80(N.D. Cal. 1894).

ferred the issue to resolution by the Secretary of

State. 9

Two years later the Supreme Court refined the

Ezeta court's application of the political offenseexception. In Ornelas v. Ruiz" ° the government ofMexico sought the extradition of three individualswho had crossed the Rio Grande with a group ofapproximately 140 other armed men. The groupsubsequently attacked forty Mexican soldiers inthe village of San Ignacio and terrorized the townand its citizenry. The magistrate first hearing thecase concluded that the defendants' actions werepersonally motivated and not intended to furtherthe political disturbances then occurring withinMexico. The Supreme Court affirmed the magis-trate's ruling as supported by the record, thusinterpreting Castolini as requiring that the defend-ants' actions be not only contemporaneous withsome political disturbance, but also unqualifiedlyconnected with the furtherance of the politicalrevolt.'

The history of the extradition proceedingsagainst Andrija Artukovic" 2 underscores the im-portance of the distinction between "furtherance"and contemporaneity. The Yugoslavian govern-ment sought Artukovic, the former Minister ofInternal Affairs for the pro-German government ofCroatia during World War II, for allegedly order-ing the execution of two hundred thousand inmatesof concentration camps in Yugoslavia during thewar. While awaiting an extradition hearing on thematter, Artukovic filed a petition for a writ ofhabeas corpus with the District Court for theNorthern District of California.1 5 The Ninth Cir-cuit affirmed the district court's decision to grantthe writ prior to any evidentiary hearing.11 4 Bothcourts determined that the offenses charged werepolitical because they occurred during the Germaninvasion of Yugoslavia and subsequent establish-

109 62 F. at 986 (N.D. Cal. 1894)."o 161 U.S. 502 (1896).

.. Id. at 511.12 140 F. Supp. 245 (S.D. Cal. 1956), affid sub non.

Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957),rev'd per curiam, 355 U.S. 393 (1958), decision on remand subnon. United States ex rel. Karadzole v. Artukovic, 170 F.Supp. 383 (S.D. Cal. 1959). The Yugoslavian indictmentaccused Artukovic of "having, in the course of 1941 and1942, when Yugoslavia was occupied by German andItalian troops, issued orders based on criminal motives,hatred, and the desire for power to members of bands ofwhich he was one of the leaders, to carry out massslaughters of the peaceful civilian population of Croatia,Bosnia and Herzegovina." 247 F.2d at 204.

uS 140 F. Supp. 245 (S.D. Cal. 1956)..4 247 F.2d 198 (9th Cir. 1957).

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EXTRADITION OF POLITICAL TERRORISTS

ment of the short-lived independent government ofCroatia."5 Neither court considered the civilianstatus of Artukovic's alleged victims or analyzedwhether the murder of two hundred thousandpersons was actually in furtherance of a politicalend."

6

The United States Supreme Court, in a oneparagraph per curiam opinion, reversed the NinthCircuit and remanded the case for an evidentiaryhearing. 1 7 The hearing was subsequently held be-fore a federal magistrate and extradition again wasrefused, this time on the ground that there wasinsufficient evidence to establish probable cause ofArtukovic's guilt.118 In dicta, however, the magis-trate adopted the earlier Ninth Circuit opinionwhich concluded that because the crimes werecommitted during a struggle for power they werepolitical in character. 119 Neither court analyzed,nor did they seem to consider, the requirement thata nexus be shown between the mass killings andthe political struggle. This conclusion, althoughnot the ultimate holding in the Artukovic case, isunsettling because it places greater emphasis onthe timing of the defendant's acts than on whetherhe in any sense furthered a political revolt. Boththe circuit and district courts refused to interpretwar crimes against civilians as being beyond thepurview of the Castolini test. 120

Since Artukovic, the courts have applied the Cas-tolini test with a relatively consistent regard forwhether the accused committed the offense in fur-therance of political revolt. In Ramos v. Diaz,12 1 forexample, the Cuban government requested extra-dition of two former soldiers who had escaped fromprison following Castro's rise to power. A Cubancourt had convicted the men for killing an escapingprisoner shortly following Batista's downfall. TheUnited States district court concluded that thevictim had been a political prisoner captured infurtherance of the uprising and that the offensetherefore was political in character. The courtlooked beyond the existence of the Castro uprisingto consider the identity and political position ofthe victim as well as the manner in which the acts

"1 140 F. Supp. at 246-47; 247 F.2d at 204.16 Id.

17 355 U.S. 393 (1958) (hearing to be conducted pur-suant to 18 U.S.C. § 3184).

118 170 F. Supp. 383 (S.D. Cal. 1959).

"9 Id. at 393.

"20 140 F. Supp. at 247; 247 F.2d at 204-05; 170 F.Supp. at 392-94. See also M. BASSIOUN, EXTRADITION,

supra note 21, at 420-26.121 179 F. Supp. 459 (S.D. Fla. 1959).

of the accused played a part in the revolution.12

Similarly, in In re Gonzalez'23 the district court heldthat, in the absence of an uprising, the murder oftwo prisoners by a guard in the Dominican Repub-lic could not have been in furtherance of a politicalgoal."

Other than in scattered dicta, the Americancourts have refused to inquire into the motivebehind the requesting country's requisition. 2 5 Forexample, inJimenez v. Aristeguieta126 the Venezuelangovernment sought the extradition of the recentlydeposed President Jimenez on charges of murder,embezzlement, and fraud, all extraditable offensesunder the treaty between the United States andVenezula. After a finding of probable cause on theembezzlement and fraud charges,1 27 the court cer-tified Jimenez to the Secretary of State who orderedhis extradition to Venezuela.' 28 The case is signifi-cant because it indicates the strictness of the Amer-ican judiciary's interpretation of the political of-fense exception. Even where a former head of statewas sought by those who forcibly overthrew him,the court declined to examine the motives behindthe request.

129

22 Id. at 462-63. Although the court cited Artukovic asauthority, it is clear from the opinion that the analysis inDiaz went well beyond a determination of contempo-raneity.

z3 217 F. Supp. 717 (S.D.N.Y. 1963).24Id. at 721. The district judge did suggest in dicta

that under some circumstances it might be appropriateto relax the political disturbance requirement, particu-larly where the requesting government is a totalitarianstate. The court concluded, however, that Gonzales hadbeen in no sense politically motivated and was thereforedefinitely liable to extradition under any approach. Id. at721 n.9.

"25See In re Gonzalez, 217 F. Supp. at 721.12r 311 F.2d 547 (5th Cir. 1962), aff'dper curiam sub nom.

Jiminez v. Hixon, 314 F.2d 654 (5th Cir.), cert. denied, 373U.S. 914 (1963).

127 Similarly, it appears that the American judiciaryhas not considered financial crimes whether committedby governmental officials or businessmen as falling withinthe political crimes exception. See Jhirad v. Ferrandina,536 F.2d 478 (2d Cir.), cert. denied, 429 U.S. 833 (1976);Garcia-Guillern v. United States, 450 F.2d 1189; In reLocatelli, 468 F. Supp. 568 (S.D. Fla. 1979); In re Sindona,450 F. Supp. 672 (S.D.N.Y. 1978); Gallina v. Fraser, 177F. Supp. 856 (D. Conn. 1959), aff'd, 278 F.2d 77, cert.denied, 364 U.S. 851 (1960).

128 Prior to extradition, the Secretary of State receivedthe assurances of the Venezuelan government that Ji-menez would be tried only for those offenses for which hewas extradited. Jimenez v. Aristeguieta, 311 F.2d 547.

129 See I.A. SHEARER, supra note 12, wherein the author,after reviewing the American approach, severely criticizesit as narrow and outdated.

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What emerges from the American decisions is a

considerably greater adherence to the political dis-turbance requirement than that of Great Britain.

1 30

The potential harshness of this requirement uponindividuals undertaking individual actions of con-

science is somewhat mitigated, however, by thefact that purely political offenses, such as sedition,are never extradictable. 131 Furthermore, the rule ofdual criminality 32 will prevent the extradition of

persons sought for nonviolent speech or assemblyoffenses since those acts are not crimes in theUnited States. Thus, political dissent which doesnot include the commission of a common crime isprotected under the treaty exception whether ornot undertaken in aid of a general uprising. Finally,it always remains the prerogative of the executivebranch to refuse extradition on political grounds.

1 33

The American approach, however, provides aworkable standard only when the courts avoid thepitfall of mechanistic application. Contemporane-ity with a political disturbance must be viewed as

a prerequisite to the defense, not as its embodiment.In order to distinguish actual revolution from ran-dom terror the judiciary must undertake the diffi-cult and delicate task of deciding what acts are orare not attempted in furtherance of a politicaluprising. Unfortunately, the courts have not to

date developed a uniform procedural approach tothis determination.

RAISING THE POLITICAL OFFENSE EXCEPTION IN

AMERICAN COURTS

American law has not developed a uniform pro-cedure for raising or sustaining the political offenseexception. In many ways the exception resemblesboth a jurisdictional issue and an affirmative de-fense. Because a political connection makes anoffense nonextraditable, it may be seen as depriv-ing the court ofjurisdiction.' 34 On the other hand,a court might treat the political nature of theoffense as a collateral fact which defeats or negatesthe claim for extradition and which thus amounts

to an affirmative defense. The principal distinctionbetween these two approaches is in their relative

'30 Cf In re Gonzalez, 217 F. Supp. at 721 (murder inabsence of uprising not political). See also Cantrell, supranote 9, wherein the author urges American courts toextend the Gonzalez interpretation to make the Americanapproach to extradition consistent with England.

'3' See note 74 supra and accompanying text.'3 2 See note 37 supra and accompanying text.

'33 See text accompanying notes 57-63 supra.134 M. BAssIoUNI, EXTRADITION, supra note 21, at 515.

placement of the burden of production and theultimate burden of proof.

The jurisdictional approach implies that the re-quisition for extradition must allege the nonpoliti-cal nature of the crime as an element of the court'sjurisdiction. Since the requesting country mustallege that the treaty of extradition is operativeand applicable to the particular case, 135 the request

should then also contain sufficient facts to dem-onstrate that the underlying offense is not politicalin nature. The burden of pleading such facts is onthe requesting country, and a request which failedto meet this burden could be challenged in apretrial motion akin to a motion to dismiss.

This approach, adopted by both the district136

and circuit courts 3 7 in the Artukovic case, was ulti-mately rejected by the Supreme Court. 3 8 Artu-kovic, it will be recalled, was charged by the Yu-goslavian government with the murder of thou-sands of concentration camp inmates. 39 The de-fendant contended that the crimes charged werepolitical offenses and prior to any evidentiary hear-ing he filed a petition for writ of habeas corpus.

40

The district court granted the writ on the ground

that the political nature of the crimes was apparenton the face of the indictment.1 4

' The circuit courtaffirmed, recognizing that the case was one whichdealt with relative political offenses. 42 Both lowercourts determined that the crimes were politicalprimarily because the indictment referred to theGerman occupation of Yugoslavia and to the de-fendant's position in the Croatian government.Thus, the burden was placed on the requesting

country to include in its requisition sufficient in-formation to remove the charged murders from thepolitical sphere, or at least to refrain from insertingany information that even suggested a politicalconnection. Because the Yugoslavian indictment ofArtukovic did not meet this burden, the lower

courts dismissed the requisition prior to trial. TheSupreme Court, however, subsequently vacatedthe writ and remanded the case for hearing.

43

Although the Court's one paragraph per curiam

15 See note 37 supra.'36Artukovic v. Boyle, 140 F. Supp. 245 (S.D. Cal.

1956).137 Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.

1957).128 Karadzole v. Artukovic, 355 U.S. 393 (1958) (per

curiam).139 Artukovic v. Boyle, 140 F. Supp. at 246.140 Id.141 Id. at 247.142 Karadzole v. Artukovic, 247 F.2d at 203-04.143 355 U.S. 393.

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EXTRADITION OF POLITICAL TERRORISTS

opinion did not set forth the basis for decision, thereason was clearly the failure of the district courtto hold an evidentiary hearing.'"

Artukovic, though, actually charged with thecommon crime of murder, claimed that the actswere committed in a political context. 14 His de-fense, therefore, was that the extradition requestwas for a relative political offense.146 If the Ameri-can test for a relative political offense was merecontemporaneity with a political disturbance, thenthe issue might reasonably be resolved on a motionto dismiss or pretrial habeas corpus petition. Theactual test, however, is whether the acts were com-mitted in furtherance of a political goal. 47 Deter-mination of this issue requires consideration of themotives of the defendant as well as both the contextand impact of the act. Since this information can-not be gathered from an examination of the re-quisition, the extraditing court must hear evidenceon the issue. This requirement accords with theoften stated principle that the political offenseexception is a mixed issue of law and fact, butprimarily one of fact. 46

An additional consideration against the jurisdic-tional approach is the burden that it places on therequesting country. In order to insulate its requis-ition from a claim of a relative political offense, therequesting country must allege sufficient informa-tion to demonstrate that the crimes were not infurtherance of a political objective. Not only wouldthis require the requesting country to "pleadproof," it would require proof of a negative. Thebetter approach, comporting with the purposes ofextradition treaties, requires only that the requisi-tion set forth the ultimate facts in support of therequest and leaves the finer factual issues for reso-lution at trial.

There are, however, two political defenses thatthe accused might raise by motion prior to trial. Arequisition for extradition charging a purely polit-ical offense rather than a common crime, obviatesthe need for any factual determination becausepurely political offenses are never extraditable. 49

144 This was the interpretation of the federal magistrate

who heard the case on remand. United States ex reL.Karadzole v. Artukovic, 170 F. Supp. 383 (S.D. Cal.1959).

145 Artukovic v. Boyle, 140 F. Supp. 245.146 Karadzole v. Artukovic, 247 F.2d 198.14 7 See text accompanying notes 121-24 supra.148 Ornelas V. Ruiz, 161 U.S. at 504; M. BAssIouNi,

ExraDrnON, supra, note 21 at 400.149 See note 74 supra and accompanying text. The for-

mal charge will always appear on the face of the request.See note 37 supra.

Similarly, a defense based upon the doctrine ofdual criminality, requiring only an examination ofthe relevant foreign and American statutes,"50

could also be raised on motion. A claim of relativepolitical offense however, is an issue of substancewhich requires evidentiary support and must beresolved at trial. Although it seems clear that thedefendant bears the initial burden of raising thedefense, 5 1 two procedural questions remain: (1)what quantum of evidence, if any, is required toraise the defense, and (2) who bears the ultimateburden of proof?

The fact that no court has specifically or system-atically addressed these questions' 52 might, in part,be attributable to the very nature of the extraditionprocess that intertwines domestic law and foreignaffairs. The judiciary, consistent with a policy ofpreserving flexibility in matters touching upon for-eign policy, 153 has allowed each magistrate to de-fine his own procedural approach.)" To shift theburden to the requesting courts, some courts haverequired expert testimony pursuant to statute1 toexplain the surrounding political situation,1

6

whereas others appear only to have required anassertion of the defense. 57 This case by case ap-

ISO See note 44 supra.15 See In re Gonzalez, 217 F. Supp. 717; Ramos v. Diaz,

179 F. Supp. 459. In Artukovic the district court on remandreferred to the political offense exception as an affirma-tive defense. United States ex tel. Karadzole v. Artukovic,170 F. Supp. at 392.

152 See 2 C. HYDE, supra note 65, at 1025; Proceedingsof The American Society of International Law, ThirdAnnual Meeting (April 23 & 24, 1909). The test asapplied by American courts is "when evidence offeredbefore the Court tends to show that the offenses chargedagainst the accused are of a political character, theburden rests upon the demanding government to proveto the contrary." Ramos v. Diaz, 179 F. Supp. at 463(quoting 2 C. HYDE, supra note 65, at 1025).

"' United States v. Curtiss-Wright Export Corpora-tion v. United States, 299 U.S. 304 (1936). Cf Baker v.Carr, 369 U.S. 186 (1962) (judiciary may interfere infunction of another branch of government).

154 See First National City Bank of New York v. Aris-teguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as moot,375 U.S. 49 (1963).l5 18 U.S.C. § 3191.156 See In re Abu Eain, No. 79 M 175 (N.D. Il. Dec. 18,

1979) (mem.).157 This appears to be the case from the court's lan-

guage in Ramos v. Diaz, 199 F. Supp. at 463.It appears, after a careful review of the literature and

case law, that the first and only major dialogue on thisissue occurred before the American Society of Interna-tional Law in 1909. Two experts on extradition mattersaddressed this issue and came to two entirely oppositeconclusions based upon policy considerations. J. ReubenClark, Jr., a solicitor with the Department of State,

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LUBET AND CZACKES

proach might be adequate for an infrequentlyraised defense. At a time, however, when the extra-dition of Iranians, Palestinians, Irish, Haitians, andothers is a topic of almost daily political, legal, andpopular concern, it clearly is insufficient.

RAISING THE DEFENSE

Anglo-American law has long depended on theallocation of burdens of production to achieve basicpolicy goals.lss In criminal cases this allocationreflects not only a concern for fairness to the de-fendant, but also a social judgment that it oughtto be difficult for the state to deprive persons oftheir liberty.15 9 Thus, the defendant is presumedinnocent until proven guilty, and the prosecutionmust prove every element of the crime beyond areasonable doubt.

Even within this framework, however, defend-ants may be required to meet certain burdens ofproduction when raising certain defenses. Theseburdens vary according to policy considerationsrelevant to the defense involved. Thus, a defendantclaiming that his confession was obtained in viola-tion of his Miranda rights need only assert involun-tariness in order to require the state to provecompliance with the rule by a preponderance of

the evidence. 16 On the other hand, a defendantseeking to suppress evidence of a suggestive pretrialidentification must himself establish suggestivenessby a preponderance of the evidence.' 6 ' This dis-parity in the defendant's burden reflects the pri-

argued that the accused bore the burden of raising andproving the political offense defense by a preponderanceof the evidence. His opinion was based upon generalprinciples involved in the pleading ofjurisdictional issuesand the fact that the defense ran to the Court's jurisdic-tion under habeas corpus. On the other hand, Julian W.Mack, a practitioner from Chicago, argued that theraising of the political offense exception went to themerits of the extradition request and once raised by theintroduction of some evidence by the accused, the burdenshifted to the requesting country to show that the act wasa common crime by some unspecified standard of proof.Thus, it was Mr. Mack's position, at that time, that theunderlying policy of the political offense exception,namely the promotion of political change, required thatspecial protection be afforded to anyone claiming to fallunder the exception, as long as some political rationalecould be applied under domestic law. Proceedings of theAmerican Society of International Law, supra note 152,at 95-124 & 144-65 (addresses of J. Reuben Clark, Jr.,and Julian W. Mack).

158McCoRMIcK ON EVIDENCE 786-88 (2d ed. 1972).'59 In re Winship, 397 U.S. 358 (1970).'60 Miranda v. Arizona, 384 U.S. 436 (1966).161 United States v. Crews, 48 U.S.L.W. 4325 (1980).

macy in our system of the privilege against selfincrimination, in contrast to the lesser importanceaccorded to the less intrusive nature of a pretrialidentification. Similarly, in Leland v. Oregon'62 theUnited States Supreme Court held that the statesare free to place the burden of establishing affirm-ative defenses upon the defendant, and may evenrequire that defendants prove certain defenses be-yond a reasonable doubt.ss

The burden of establishing the political offenseexception also may be seen as a question of policyrather than one of constitutional rights or funda-mental fairness.'6 It is necessary to balance thecompeting considerations of international comity,enforcement of treaty provisions, and protection ofpolitical dissent, within a procedural frameworkthat allows the defendant a fair opportunity toraise the defense without unduly burdening therequesting state.

In Ramos v. Diaztes the district judge addressedthe question of relative burdens and concludedthat "when evidence offered before the Court tendsto show that the offenses charged against the ac-cused are of a political character, the burden restsupon the demanding government to prove to thecontrary."'6 This interpretation is most advanta-geous to the defense because the "tending to show"standard can easily be met in virtually every casewhere the defendant claims the benefit of the treatyexception. The burden then would shift to therequesting country to disprove the political con-nection, presumably by at least a preponderanceof the evidence.167 The difficulty with this standardis that its operation requires the requesting countryto negate all possible political connections withoutfirst requiring the defendant to establish the pa-rameters of his claim.

The presiding magistrate in Abu Eain recognizedthis problem. Abu Eain argued that in order toshift the burden of proof to the requesting state, heneed only produce some evidence which tended to

'2 Patterson v. N.Y., 432 U.S. 197 (1977).:63 343 U.S. 790 (1952).'6 Patterson v. N.Y., 432 U.S. 197 (1977).'6 179 F. Supp. 459.'6 Id. at 463.167 See Ramos v. Diaz, 179 F. Supp. at 463. The

requesting country in an extradition hearing only bearsthe burden of showing probable cause because the ulti-mate issue of guilt or innocence is not under considerationby the extraditing court. See note 39 supra and accompa-nying text. The court, however, does resolve the merits ofthe political offense exception defense. In order for thecourt to reach a decision one party or the other mustestablish its case by the greater weight of the evidence.

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EXTRADITION OF POLITICAL TERRORISTS

show the political nature of the crime.'68 The mag-istrate, however, rejected this contention, and ruledthat the defendant was required to show the linkbetween the alleged crimes and their political ob-jective.s69 This requirement recognizes that whilemere contemporaneity might tend to show a polit-ical connection, more evidence is necessary to meetthe test of the substantive law. In essence, themagistrate in the Abu Eain case ruled that in orderto raise the political offense exception the defend-ant must present evidence of each of the substan-

tive elements of the defense.170

The better approach is to require the defendantto present a prima facie case that the offense is apolitical one. The defendant would have to present

evidence, either through cross-examination or pur-suant to 28 U.S.C. § 3191, which standing alonewould be sufficient to show: (1) the existence of a

political disturbance; (2) the political motivationor goal of the defendant; and (3) that the acts

charged were undertaken in furtherance of thepolitical goal. This evidentiary requirement in-creases the burden on the defendant, but only withregard to specificity. He may not simply claim thedefense, but must establish its elements. He still

might do this solely upon his own testimony, or hemight rely upon expert witnesses, judicial notice,

or even cross-examination. In.any event, the re-questing state would be given notice of the natureof the claimed political connection. The prosecu-

tion could then adduce its own evidence as to thenature and impact of the charged crimes,'17

' but

168In re Abu Eain, No. 79 M 175 at 19. In his habeascorpus brief to the Seventh Circuit Abu Eain argued thathe had met the "tending to show" standard by presentingevidence of the general tactics of the Palestine LiberationOrganization. He had offered evidence at trial thatbombings directed at Israeli civilians were "typical andcommon" undertakings of the P.L.O., but he did nottestify himself and he did not offer any evidence concern-ing the motivations behind the specific bombing withwhich he was charged. Brief for Petitioner at 25-29, No.80-1487. On this basis he argued that the requesting statewas required to disprove that the charged murders werepolitical crimes. Id at 29.

' Id. at 20.'

70 Id at 19-21.171 The requesting state may meet its burden of pro-

duction by relying on legal presumptions, rather than byactually introducing evidence. Such presumptions in-clude (1) the rule of speciality, (2) the presumption ofgood faith on the part of the demanding government,and (3) the presumption that crimes directed againstcivilians are not "political." Regarding the presumptionof good faith, see In re Gonzalez, 217 F. Supp. 717; Gallinav. Frazer, 278 F.2d 77. For cases concerning the nonpo-litical nature of crimes against civilians, see Ornelas v.

would not face the obligation of contradicting allpossible political connections.

Assuming that both parties meet their burden ofproduction, one final question remains: whichparty bears the ultimate burden of proof? On thisissue the courts of extradition have been neitherconsistent nor clear. Some courts have held thatthe defendant must bear the burden, 172 others haveplaced it on the requesting government, 7" and stillothers appear to have voiced both positions in thesame opinion.7 4

The nature of the decision to be made, however,indicates that the burden of proof by a preponder-ance of the evidence should be placed on thedefendant. 75 As noted above, the absence of apolitical connection need not be pled in the extra-dition requisition; it is rather the proof of a politicalact which defeats the request.' 76 The defense doesnot negate any of the facts of the charge, butconstitutes instead an entirely separate issue depen-dent upon facts which are beyond the elements ofthe crime. 17 7 Since the issue is wholly collateral, theburden of proof must remain upon the party whoasserts the claim.

78

This conclusion will accomplish the basic policyof international cooperation in extradition withoutseriously compromising political dissent. Theplacement of the burden of proof will not affectpersons charged with either purely political of-fenses or with offenses involving speech and assem-bly. Those who have been charged with commoncrimes will be required to establish a politicalnexus, but proof of such a connection is uniquelyunder the control of the defendant. In any event,once it is accepted that the defendant bears theresponsibility of establishing a prima facie case forthe exception, and that preponderance of the evi-

Ruiz, 161 U.S. 502; In re Meunier, [1894] 2 Q.B. 415. Seealso In re Wisconsin and Armstrong, 28 D.L.R.3d 513(Country Ct. of York, Ontario, Canada, 1972), affid, 32D.L.R.3d 265 (Fed. Ct. App. 1973); In re Kaphengst,(Fed. Ct. Switz. 1930) 7 Ann. Dig. 292 (Case No. 188) in6 M. WHrrEMAN, supra note 49, at 840.

172In re Abu Eain, No. 79 M 175 (N.D. Il. Dec. 18,1979) (mem.).

173 Ramos v. Diaz, 179 F. Supp. at 463.174In re McMullen, No. 3-78-1099 MG, mem. at 2, 6

(N.D. Cal. May 11, 1979).'75 Id. at 6.176 See Karadzole v. Artukovic, 355 U.S. 393.'7 Patterson v. N.Y., 432 U.S. at 206-07.'

78 Id. The British courts require that the defendantprove the political character of the crime. See, e.g.,Schtraks v. Government of Israel, [1962] 3 All E.R. at534.

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dence is the standard of proof, the questiori ofultimate burden recedes in importance. This isbecause in virtually every case the greater weightof the evidence will either establish or not establishthat the offense was committed in furtherance of apolitical objective. The court then may make itsdecision based upon what actually was proven,rather than upon which party had the obligationof proving it.

The question of burden of proof will remainimportant only in those cases where the evidenceapproximates equipoise. In those cases it is appro-priate that the balance tip in favor of the requestingstate. Our courts generally presume the good faithof those governments with whom we have enteredinto extradition treaties, 7 9 and there is scant reasonto abandon this principle in favor of individualswho have not established that their actions were infurtherance of political ends. This burden willdisadvantage only those who have been chargedwith common crimes and who have not satisfacto-rily shown a political nexus. Even in these cases thedefendant will continue to have recourse to theSecretary of State. Therefore, it is reasonable toplace the ultimate burden of proof on the partyclaiming the benefit of the political offense excep-tion.' 80

17 n re Gonzalez, 217 F. Supp. 717; M. BASSIOUNI,EXTRADITION, supra note 21, at 466.

'80 See Patterson v. N.Y., 432 U.S. at 207-09; Coriolanv. Immigration & Naturalization Serv., 559 F.2d 993, 997(5th Cir. 1977).

CONCLUSION

The role of the American judiciary in the extra-dition process is mainly preliminary. The courts donot pass upon guilt or innocence, nor do theyactually order extradition. Rather, it is the functionof the judicial officer to ensure that the defendantis afforded basic due process before the Secretaryof State makes the ultimate decision on extradition.Recognition of this limited judicial role no doubtcontributes to the limited judicial development ofprocedural law in this area.

With regard to the political offense exception,however, the courts may actually make the final

determination. Ajudge's decision that a crime fallswithin the exception may not be reviewed. Theimportance of this decision to both domestic lawand foreign affairs requires not only a strict inter-pretation of the substantive law but also a coherentprocedural framework.1

81

Although the courts have substantially devel-

oped a workable interpretation of the politicaloffense exception, no consistent procedural ap-proach has emerged. Congress could provide such

an interpretation by enacting new legislation whichboth defines the meaning of political offense andprovides a detailed procedural guide for raising theexception. This would undoubtedly promote bothAmerican foreign policy and the international right

of political dissent.

181 The lack of review ofjudicial decisions applying thepolitical offense exemption also provides an argument infavor of deferring consideration of the issue to the De-partment of State. See note 61, supra.

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