any sitting judge could conclude that the circumstances of a homicide or violent assault were so extraordinary as to warrant the application of the political offense exception, unless he or she had been presented with clear and convincing evidence to establish that proposition.

CONCLUSION

It is my conclusion that House Bill 2643 represents an excellent solution to the many problems posed by extradition reform. It maintains a strong judicial role in the extradition process, while giving the courts sound guidance as to matters of substance and procedure. Although I have a number of suggestions for discrete changes in the bill, my overall opinion is that it is a vast improvement over the present state of the law and that it is by far the best proposal for extradition reform which has been presented before the Congress.

EXTRADITION REFORM: EXECUTIVE

DISCRETION AND JUDICIAL
PARTICIPATION IN THE
EXTRADITION OF POLITICAL
TERRORISTS

Steven Lubet*

The unprecedented attention given to three recent cases of international extradition, each involving an incident of terrorviolence, has led to the first full-scale legislative evaluation of the

Professor of Law, Northwestern University, Chicago, Illinois. A.B. Northwestern University, 1970; J.D. University of California at Berkeley, 1973. The author would like to thank Barbara Shulman and Jonathan Rosenberg. Northwestern University School of Law class of 1984, for their assistance in the preparation of this article.

1. Abu Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981), aflg. In re Abu Eain, Magis. No. 79 M 175 (N.D. Ill., opinion filed Dec. 18, 1979), cert. denied, 454 U.S. 894 (1981); In re Mackin, No. 80 Cr. Misc. 1 (S.D.N.Y., opinion filed August 13), aff'd, United States v. Mackin, 668 F.2d 122 (2d Cir. 1981); In re McMullen, No. 3-78-1899 M.G. (N.D. Cal., Memorandum decision filed May 11, 1979). See infra notes 35-42 and 147-49 and accompanying text.

extradition law of the United States since 1882.2 The cases illustrate the inadequacy of both the substantive and procedural law governing the political offense exception to extradition.3 Congressional deliberations have resulted in extensive public debate and scholarly analysis of the definition of a political offense and of the process for determining whether political offenders are extraditable.4

This article discusses the history and current status of the political offense exception in the extradition law of the United States, highlighting the deficiencies in the antiquated process. The article analyzes the reform proposals which have been presented to Congress and recommends substantive and procedural changes in the law of extradition. The contemporary international environment requires an extradition law that reduces the ability of terrorists to claim the protection of the political offense exception, but which retains the vitality of the concept of political asylum for legitimate dissidents. This article recommends a process that preserves the strengths of the tradition of the United States, and satisfies the requirements of the contemporary environment.

I

THE ORIGIN AND FUNCTION OF THE
POLITICAL OFFENSE EXCEPTION

The political offense exception to extradition emerged in the nineteenth century. When it first developed, extradition was used

2. See H.R. REP. No. 627, 97th Cong., 2d Sess. 3, n.3 (1982). Congress has considered three versions of extradition reform: H.R. 6046, 97th Cong., 2d Sess. (1982); S. 1940, 97th Cong., 2d Sess. (1982) and S. 1639, 97th Cong., 1st Sess. (1981). S. 1940 passed the Senate on August 19, 1982. 128 CONG. REC. S. 10884 (daily ed.). The House did not consider it before the end of the 97th Congress, however. The bills have not been reintroduced yet in either house.

3. See infra notes 35-42 and accompanying text.

4. See, e.g. Extradition Act of 1982: Hearings on H.R. 5227 Before the Subcomm. on Crime of the House Comm. on the Judiciary, 97th Cong., 2d Sess. (1982); Extradition Act of 1981: Hearings on S. 1639 Before the Senate Comm. on the Judiciary, 97th Cong., Ist Sess. (1981); Hannay, International Terrorism and the Political Offense Exception to Extradition, 18 Colum. J. Transnat'l L. 381 (1980); International Procedures for the Apprehension and Rendition of Fugitive Offenders: A Panel, 74 AM. SOC'Y INT'L L. PROC. 274 (1980) (remarks by Bassiouni, Kenney and Williams, and discussion); Lubet and Czaczkes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 J. CRIM. L. Criminology 193 (1980).

5. See Harvard Draft Convention on Extradition, 29 Am. J. Int'l L. Supplements I, 107-19 (1935). The "practice of non-extradition of political offenders (in the early part of the 19th century] . . . may be explained by two main factors: (1) the evolution of political institutions following the French Revolution; (2) the growing consciousness of the interdependence of nations following the Industrial Revolution." Id. at 108. See also M.R. GARCIa-Mora, International Law and Asylum as a Human Right 73-76 (1956).

as a tool for the apprehension of political dissidents; however, as constitutional government and industry evolved, sovereigns began to accept the legitimacy of political dissent. In 1833 Belgium enacted the first legislation exempting political offenders from extradition;7 the first treaty containing a political offense exception to extradition was executed between Belgium and France in 1834."

The United States has never enacted a domestic statute embodying the political offense exception, undoubtedly because such legislation was viewed as redundant to the widely accepted principle that extradition could not lie for a political offense. As early as 1853 the United States recognized that political offenders were protected from rendition, notwithstanding the absence of a specific treaty clause or statute, 10

The political offense exception is now so well accepted in international law that it has become more than simply an optional provision to be found in bilateral treaties. The concept of political asylum is included in the United Nations Declaration of Human Rights,"

6. Before the 19th century, with fragmented medieval dynasties, the extreme hardship associated with the extradition process necessitated limiting its use to the apprehension and punishment of those who threatened the political system. GARCIA-MORA, supra note 5, at 73. In the late 18th and early 19th centuries, however, political dissent became acceptable. Id. at 73-76; Harvard Draft Convention on Extradition, 29 Am. J. Int'l L. SUPPLEMENTS 108-09 (1935). See also Letter from Thomas Jefferson to James Madison (Jan. 30, 1787) (“I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical."); and J.S. MILL, ON LIBERTY 2 (A. Oostell ed. 1947) (“political liberties or rights which it was to be regarded as a breach of duty in the rule to infringe, and which, if he did infringe, specific resistance, or general rebellion, was to be held justifiable.").

7. Laws of 1 October 1833, art. 6 (Belgium).

8. Sec I.A. SHEARER, EXTRADITION IN INTERNATIONAL Law 17-19 (1971); M.R. GARCIA-MORA, International Law and ASYLUM AS HUMAN RIGHT 75,94 (1956) (Article 4 of the Convention on Extradition of November 22, 1834, between France and Belgium provided: "It is expressly stipulated that a foreigner whose extradition has been granted, cannot, in any case, be prosecuted or punished for a political crime antecedent to the extradition or for any act connected with such a crime.") (quoting from A. BILLOT, TRAIT DE L'Extradition III (1874)).

9. See J.B. Moore, EXTRAdition and Interstate Rendition §§ 205-218 and 303-326 (1891); 1 L.F.L. Oppenheim, INTERNATIONAL LAW §§ 333-337 and 573-579 (McNair cd. 1928); F.T. Piggott, ExtraditioN 44-62 (1910). See also SHEARER, supra note 8, at 73-94; Harvard Draft Convention on Extradition, 29 AM. J. INT'L L. SUPPLEMENTS 107-119 (1935).

10. Ex parte Kaine, 14 F. Cas. 79, 81-82 (C.C.S.D.N.Y. 1853) (No. 7597).

11. The Universal Declaration of Human Rights, G.A. Res. 217(III), U.N. Doc. A/ 810, at 74 (1948) (3d Sess., 1st Part), provides in Article 14: "1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecution genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations." The General Assembly voted on each article of the Declaration and on the Declaration as a whole. Article 14 was adopted by 44 votes to six with two abstentions. No roll call was taken for the vote on each article; therefore, there is no record of the members casting negative votes or abstaining. The Declaration as a whole was adopted by 48 votes with eight abstentions. The abstaining members were Byelorossian Soviet Socialist Republic, Czechoslovakia,

and many states protect political offenders from rendition by domestic legislation.12 Indeed, a form of the political offense exception is contained in the constitutions of Brazil, Mexico, Italy, and Spain. 16 The United States, though lacking a constitutional or statutory provision, has included the political offense exception in each of its 96 treaties of extradition. Given the near universality of the

17

Poland, Saudi Arabia, Ukranian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics and Yugoslavia. 3(1) U.N. GAOR (183d plen. mtg.) at 933 (1948). For the discussions in the Committee on Social, Humanitarian and Cultural Questions on the provision for asylum of political offenders, see 3(1) U.N. GAOR C. 3 (121st-122nd mtgs.) at 327, U.N. Doc. E/800 (1948). On the communist support for aspects of political asylum see Gold, Non-extradition for Political Offenses: The Communist Perspective, 11 HARV. INT'L L.J. 191 (1970).

12. For example, the extradition statute of the Federal Republic of Germany provides in part: "Extradition is not permissible when the act for which extradition is sought is a political one or is connected with a political act in such a way that it prepared secures, or covers it, or guards against it. Deutsches Auslieferungsgesetz [DAG] § 3(1). Vom. 23. December 1929 Reichsgesetzblatt [RGB1] 1 239, as amended by 1974 Bundesgesetzblatt [BGB1] 1 469 (W. Ger.).

Similarly, Extradition Act, 1870, 33 & 34 Vict., ch. 52, § 3, of the United Kingdom provides:

A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded is one of a political character, or if he proves to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.

The Israeli statute on Extradition Law provides at Section 10: "[T]he Court shall not declare a wanted person subject to extradition if it finds that there are reasonable grounds for assuming. . . that the request for extradition aims at prosecuting or punishing him for an offence of a political character, though prima facie it is not made in connection with such an offence." Extradition Act, 5714-1954, 8 Laws of the State of Israel 145 (Authorized Translation from the Hebrew, Prepared at the Ministry of Justice). 13. CONSTITUICAO art. 153 (Brazil).

14. CONSTITUCION art. 15 (Mexico).

15. CONSTITUZIONE art. 1, app. A (Italy).

16. CONSTITUCION art. 1, para. 3 (Spain).

17. See 18 U.S.C.A. § 3181 (Supp. 1982). The United States has entered into bilateral extradition treaties with the following nations: