46. No. 3-78-1899 M.G. (N.D. Cal., May 11, 1979). In McMullen, the United Kingdom's request that a member of the Provisional Irish Republic Army be extradited to the U.K. in order to face prosecution for his alleged bombing of a British army installation in England was denied on the grounds that he was being sought for a "political offense" for which extradition could not be granted.

47. 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1981). In Abu Eain, Israel's request that an alleged member of the Palestine Liberation Organization be extradited to Israel to be prosecuted for his alleged bombing of a bus in Israel was granted; the court refused to entertain the relator's defense that such charges constituted "political offenses."

48.

See Senate Judiciary Hearings on S. 1639, supra note 3, at 2, 4, 8, 14 (testimony of M. Abbell, Dep't of Justice; D. McGovern, Dep't of State); Senate Foreign Relations Hearings on S. 1940, supra note 19; House Judiciary Hearings on H.R. 5227, supra note 4, at 26-27, 32 (testimony of R. Olsen, M. Abbell, Dep't of Justice; D. McGovern, Dep't of State); House Foreign Affairs Hearings on H.R. 6046, supra note 26.

49. See Senate Judiciary Hearings on S. 1639, supra note

3, at 30 (testimony of W. Hannay). The Senate Judiciary Committee, which supported the view that the political offense exception should be placed outside the court's jurisdiction, placed special emphasis on this testimony and written statement as "an excellent discussion of the political offense

exception to extradition and the impact of recent cases," which the Committee adopted as its view. See Senate Judiciary Report on S. 1940, supra note 14, at 14 nn. 59, 60, 15 n. 61. In re Mackin, No. 80 Cr. Misc. 1 (S.D.N.Y., Aug. 13, 1981), 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., May 11, 1979).

50.

51.

See generally 2 Bassiouni & Nanda, International Criminal Law, supra note 12 for a review and analysis of the various forms of international cooperation in penal matters. 52. Examples of such aspects are provisions regarding transit extradition, priority of extradition requests, and the rule of specialty. See Senate Judiciary Hearings on S. 1639, supra, note 3, at 20-24 (testimony of M. Cherif Bassiouni); House Judiciary Hearings on H.R. 5227, supra note 4, at 98-106 (testimony of M. Cherif Bassiouni).

53. This argument was raised unsuccessfully by the U.S. government in Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894 (1981).

54.

See, e.g., Bassiouni, U.S. International Extradi

tion, supra note 12; M.C. Bassiouni, International Extradition and World Public Order (1974) for a review and analysis of this developing trend in U.S. jurisprudence.

55. See generally Bassiouni, U.S. International Extradition, supra note 12.

56.

S. 220, supra note 7, SS 3191-3198; S. 1940, supra note 5, SS 3191-3198; S. 1639, supra note 1, SS 3191-3198.

57. H.R. 2643, supra note 8, SS 3191-3199; H.R. 6046, supra note 5, SS 3191-3199; H.R. 5227, supra note 2, SS 31913198. H.R. 5227 contained no provision regarding transit extradition, which was inserted in subsequent versions of the House legislation as Section 3197.

58. H.R. 2643, supra note 8, § 3199 (c); H.R. 6046, supra note 5, 3199 (c); H.R. 5227, supra note 2, § 3199 (c). See infra notes 169-85 and accompanying text.

59. See generally L. Henkin, Foreign Affairs and the Constitution (1972).

60. See 18 U.S.C.A. § 3181 (1982 Supp.)

61. See 1 Bassiouni, U.S. International Extradition,

supra note 12, at Chap. II § 3, pp. 6-9.

62. See, e.g., United States v. Rauscher, 119 U.S. 407 (1886), in which the Court stated:

It is only in modern times that the
nations of the earth have imposed upon
themselves the obligation of delivering up
these fugitives from justice to the states
where their crimes were committed, for
trial and punishment. This has been done
generally by treaties . . . Prior to these
treaties, and apart from them . . there
was no well-defined obligation on one
country to deliver up such fugitives to
another, and though such delivery was
often made, it was upon the principle of
comity.
[It] has never been recog-
nized as among those obligations of one
government towards another which rest upon
established principles of international

Id. at 411.

law.

63. See 1 Bassiouni, U.S. International Extradition, supra note 12, at Chap. II, § 1, p. 3.

64. These observations were made by this writer before the Senate and House Judiciary Committee hearings on their respective proposed bills.

See Senate Judiciary Hearings on

S. 1639, supra note 3, at 20-23 (testimony of M. Cherif

Bassiouni); House Judiciary Hearings on H.R. 5227, supra note

4, at 101-102 (testimony of M. Cherif Bassiouni).

65.

For a bibliography of international criminal law conventions, see Bassiouni, International Criminal Code, supra note 12, at xix-xxx.

66. See 1 Bassiouni, U.S. International Extradition, supra note 12, at Chap. I, S 3; Bassiouni, "The Common Characteristics of Conventional International Criminal Law," supra note 12 (compilation and analysis of international criminal law conventions which contain provisions imposing the duty to prosecute or extradite). See also Bassiouni, "General Report on the Juridical Status of the Requesting State Denying Extradition," XIth International Congress of Comparative Law, Caracas, Venezuela 20 August-5 September 1982, Proceedings of XIth International Congress of Comparative Law (in print) (comparative analysis of state law and practice regarding duty to prosecute or extradite).

67. Senate Judiciary Report, supra note 14, at 4; House Judiciary Report, supra note 22, at 3-4.

68. The specific language of both bills is as follows:

$ 3191. Extradition in general

The United States may extradite a person to a foreign state pursuant to this chapter only if-

(a) there is a treaty concerning extradition between the United States and the foreign state; and

(b) the foreign state requests extradition within the terms of the applicable

treaty.

S. 220, supra note 7, § 3191; S. 1940, supra note 5, S 3191;

S. 1639, supra note 1, § 3191.

S 3191. General statement of requirements

for extradition

The United States may extradite a person to a foreign state in accordance with this chapter only if-

(1) there is an applicable treaty concerning extradition between the United States and such foreign state; (2) the foreign state requests extradition in accordance with the terms of that treaty; and

(3) the appropriate court issues an order under this chapter that such person is extraditable.

H.R. 2643, supra note 8, § 3191; H.R. 6046, supra note 5,

S 3191; H.R. 5227, supra note 2, § 3191.

69. See Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5 (1936); Argento v. Horn, 241 F.2d 258, 259 (6th Cir.), cert. denied, 355 U.S. 818 (1957); Ivancevic v. Artukovic, 211 F.2d 565, 566 (9th Cir.), cert. denied, 348 U.S. 818 (1954).

70.

See 1 Moore, Extradition, supra note 42, at 33-35 (1891) (Arguelles case); 6 M. Whiteman, Digest of International Law 744-45 (1968) (Koveleskie case) [hereinafter referred as Whiteman, Digest].

71. See 1 Bassiouni, U.S. International Extradition, supra note 12, at Chap. II, S 3, pp. 6-9 (review of U.S. law and practice regarding reciprocity as a legal basis for extradition in the absence of a treaty).