one-third to serious narcotics offenses, and the remaining one-third to serious white collar crimes.

Both H.R. 2151 and H.R. 2643 would make the following important improvements in United States extradition law:

(1) They would permit the United States to obtain a warrant for the arrest of a foreign fugitive although his location or even his presence in the United States is not known. The entry of such warrants in the National Crime Information Center (NCIC) and the Treasury Enforcement Communications System (TECS) should greatly facilitate the arrest of such fugitives.

(2) They would provide a statutory procedure for waiver of extradition for foreign fugitives apprehended in the United States. This procedure would greatly facilitate the expedited return of such fugitives if they do not wish to contest their extradition.

(3) They would permit the direct appeal of court orders granting or denying extradition rather than forcing fugitives to use the more cumbersome habeas corpus review process and denying any review to countries requesting extradition, except through the extremely circuitous and undesirable route of filing a new extradition complaint before a different judge.

(4) They would establish clear statutory procedures and standards for the handling and litigation of all critical phases of the extradition process.

(5) They would limit access to our courts in extradition cases to those cases filed by the Attorney General.

(6) They would permit the Attorney General to ask for the issuance of a summons rather than a warrant of arrest where he believes there is no risk that the person sought would flee prior to the court's decision.

(7) They would codify the rights of foreign fugitives to legal representation in extradition cases and to the speedy resolution of those cases.

(8) They would stop the United States from being a haven for Americans who commit crimes abroad and who cannot be extradited under many of our older treaties.

(9) They would facilitate the temporary extradition of fugitives to the United States who are serving sentences or being tried in foreign countries.

While we believe that H.R. 2643 makes a number of technical improvements in the Administration's bill, we think that the Administration's bill generally accomplishes the mutual objectives of both bills in a clearer, more direct manner.

Additionally, we believe that legislation designed solely to implement extradition treaties should limit itself to providing the procedures by which the substantive agreements contained in the treaties are to be implemented. In two instances, H.R. 2643 would unilaterally revise the substantive agreements contained in the great majority of United States extradition treaties. These instances concern extradition requests by more than one country for the same person (Section 3192(a)(3)), and the minimum sentence by which an offense must be punishable in order for it to qualify as an offense for which extradition may be granted by the United States (Section 3194(d)(i)(c)). We believe such unilateral revision of our extradition treaties is unwise and inappropriate, and should be avoided.

Our principal objection to H.R. 2643, however, is that we believe the benefits it seeks to achieve would be seriously undermined by the changes it would effect concerning the release of fugitives during the extradition process. Moreover, we believe those release provisions would make it so difficult, if not impossible, for us to meet our extradition treaty commitments that our failure to meet those commitments would have a significant adverse effect on our relations with our treaty partners, and would be especially damaging to our efforts to improve international law enforcement cooperation in general, and to combat international terrorism and narcotics trafficking in particular.

In entering into an extradition treaty, the United States undertakes a solemn commitment to its treaty partners to make every effort to apprehend foreign fugitives located in the United States whose extradition is requested. We further commit ourselves to surrendering to our treaty partners all such fugitives who have been found extraditable by our courts and the Secretary of State. We believe that the excessive liberalization of the conditions of release contained in H.R. 2643 would, with great frequency, prevent us from honoring this latter commitment. First, the Supreme Court has long recognized that "bail should not ordinarily be granted in cases of foreign extradition." In so ruling, however, the Court held that

1 Wright v. Henkel, 190 U.S. 40 (1903).

despite the lack of any bail provisions in the present United States extradition laws, courts have the inherent implied authority to release persons sought for extradition where the existence of "special circumstances" warrants such release. The Courts have applied this special circumstances test wisely, and we have very seldom been placed in the position of being unable to deliver up a fugitive whose surrender has been ordered. Because the special circumstances test has worked well in practice, it has been adopted, with only minor technical improvements, in the Administration's bill, which was passed by the Senate in the 97th Congress. We strongly urge this Committee to support the Administration bill's approach to the release of persons arrested for extradition and not to attempt to "fix" a problem that does not exist. Second, both the Committee and the Administration bills provide that, at the Attorney General's request, the court can issue a summons rather than a warrant of arrest in extradition cases. It is our intention to use this summons procedure whenever the person sought presents no apparent flight risk or danger if released. For this reason, we anticipate using it most frequently with respect to American citizens and permanent resident aliens with strong family and economic ties to the community. We believe that our use of a summons rather than a warrant of arrest, where appropriate, will largely ameliorate any concern regarding of the special circumstances test.

Third, extradition, by definition, deals with a class of persons who are fugitives from justice in foreign countries. Although a small minority of them may not be aware of the pendency of charges against them in foreign countries, the vast majority of them fled from those countries knowing that charges had been, or were likely to be, brought against them. Thus, the typical subject of an extradition request has a demonstrated propensity to flee rather than face charges, and in general is likely to continue his flight if released pending extradition. The tremendous relaxation of the standards for release of subjects of extradition requests, which would be brought about by H.R. 2643, would only facilitate such further flight and make the United States an attractive haven for fugitives including international terrorists.

Fourth, by placing the burden of proof on the United States, acting on behalf of its treaty partners, to show that the fugitive will not appear if released pending extradition, or that he will constitute a danger to the safety of another person or the community, if released, the bill in practice would lead to the release of many persons who are likely to be long gone by the time their surrender for extradition is ordered-if indeed their presence during the earlier stages of extradition proceedings permits the case to progress to the point at which an order of surrender can be issued. In this regard, it must be remembered that unlike typical bail hearings in the United States on State or Federal charges, where the prosecution has access to significant information on the accused and can readily obtain the testimony of law enforcement officers who are familiar with him, in extradition bail hearings we are wholly dependent on information furnished to us by a foreign country. The fugitive, however, will be able to testify himself and often obtain local witnesses on his behalf. Given the relative availability of evidence relevant to the issue of the fugitive's release, the burden of proof should remain where the special circumstances test places it-on the person sought. To provide otherwise will greatly undermine our ability to carry out our treaty commitments to be able to effectively guarantee the surrender of fugitives who are found extraditable from the United States.

On behalf of the Administration, I respectfully request this Committee reconsider the wisdom of H.R. 2643's bail provisions, and support provisions of H.R. 2151. The latter provisions will enable the United States to meet its treaty commitments and will further, not undermine, this country's efforts in fostering international law enforcement cooperation-particularly in combatting international terrorism and narcotics trafficking.

Both this Committee and the Administration recognize new extradition legislation is extremely important to the United States ability to meet its international law enforcement responsibilities. Except for the issue of release pending extradition, H.R. 2643 and the Administration's bill are in general accord. It is our hope that the Department of Justice and this Committee can work together to resolve this critical issue so that this important legislation can be enacted.

Mr. HUGHES. Mr. McGovern.

Mr. McGOVERN. Mr. Chairman and members of the Subcommittee on Crime, I appreciate this opportunity to appear before you to express the Department of State's position on H.R. 2643, the proposed Extradition Act of 1983. In my prepared testimony I will con

fine myself to the one issue of overriding importance for the Department of State: the political offense exception.

As the subcommittee is well aware, in the last Congress the administration initially supported legislation which would have taken the political offense issue away from the courts and placed it within the exclusive jurisdiction of the Secretary of State.

Accordingly, in hearings before this subcommittee on January 26, 1982, the Department opposed H.R. 5227, a predecessor of the bill you consider today, insofar as it provided that the political offense issue would remain within the jurisdiction of the courts.

In the hearings on H.R. 5227, the Department contended that the courts have failed to develop a definition of political offense that can be applied with consistent results.

The guideline established by H.R. 5227 was too vague to be useful, the Department argued, because it simply stated that certain specified offenses were not normally to be considered political offenses. To tell the courts that murder, for example, is not normally to be considered a political offense, the Department noted, would be to give judges little or no guidance as to when that crime should be considered a political offense.

However, in drafting the political offense provisions of H.R. 2643, Chairman Hughes has, I am pleased to say, made significant changes that satisfactorily resolve the concerns we expressed regarding the treatment of that subject in H.R. 5227.

Instead of using the qualifier normally, H.R. 2643 provides that specified offenses are not to be considered political offenses except in extraordinary circumstances. More importantly, the report issued by the Committee on the Judiciary on the proposed Extradition Reform Act of 1982 makes it clear that the extraordinary circumstances test is a balancing test.

The factors to be weighed in striking the balance include: First, whether the victims were civilian, governmental or military; second, the relationship between the person sought and any political organization and whether the conduct allegedly engaged in was done in furtherance of the group's political goals; and third, the relative seriousness of the offense.

The Department is satisfied that the extraordinary circumstances test, as amplified in the committee report, will provide the courts with sufficient guidance to insure fair and consistent results in the cases involving offenses to which it is applicable.

I am also pleased to note that in drafting H.R. 2643 Chairman Hughes has followed a recommendation made in the last Congress by the Senate Foreign Relations Committee by dividing the list of specified offenses into two groups.

The first group includes offenses such as aircraft hijacking or attacks on diplomats as to which the United States is under a multilateral treaty obligation to either extradite persons charged with such offenses or submit their cases for prosecution. The first group also includes narcotics offenses. With regard to an offense listed in the first group, a court could not, under any circumstances, find such an offense to be a political offense.

The second group, which includes common law crimes of violence such as murder, would be subject to the extraordinary circumstances test. I would note that the extradition legislation proposed

by the administration in this Congress, which is included in the proposed Comprehensive Crime Control Act of 1983, follows this approach.

Having explained why H.R. 2643 is more acceptable to the Department of State than was H.R. 5227, let me briefly address a facet of the proposed legislation that continues to trouble us: The standard of proof which a fugitive would have to satisfy in order to establish a political offense claim.

Like the administration bill, H.R. 2643 places the burden of proof as to the political offense issue on the fugitive. However, H.R. 2643 differs from the administration bill as to the standard of proof.

While the administration bill requires that a political offense claim be established by clear and convincing evidence, H.R. 2643 permits the fugitive to prevail on this point by satisfying a significantly less rigorous standard, the preponderance of the evidence.

Why is the clear and convincing evidence test the more appropriate standard of proof to apply in considering political offense claims? Bear in mind that under H.R. 2643, as under the administration bill, a political offense claim may not be heard unless and until the court determines the person sought is otherwise extraditable.

For the person sought to have been determined otherwise extraditable, the court must have found that there was probable cause to believe that the crime charged was committed and that the person sought committed it.

Bear in mind, too, that if the fugitive then successfully argues that his was a political offense, he will probably escape punishment entirely because the United States rarely has jurisdiction over of fenses committed abroad. Under these circumstances, it is, we submit, entirely appropriate to require that a political offense claim be proven by clear and convincing evidence.

The Department has one other substantive suggestion to make with which, I suspect, the subcommittee may more readily agree. H.R. 2643 now lists rape as one of the offenses subject to the extraordinary circumstances test. There are no conceivable circumstances, we submit, under which rape could be properly be found to be a political offense. We have a number of more technical drafting suggestions to make, which we will separately convey to the subcommittee staff.

To change the subject for a moment, I wish to make it quite clear that the Department of State strongly supports the position taken today by the Department of Justice with regard to the bail provisions of H.R. 2643.

In conclusion, the Department wishes to take this opportunity to pay tribute to the invaluable role Chairman Hughes has played in developing and managing extradition reform legislation in the House. With his strong leadership, comprehensive understanding of the subject and willingness to work with all interested parties, we are confident that this subcommittee will report out a bill we can support. We stand ready to assist this important effort in any way.

we can.

Thank you. I am available for any questions you might have. [The statement of Daniel McGovern follows:]

SUMMARY OF PREPARED STATEMENT OF DANIEL W. MCGOVERN

The Department of State will limit its comments principally to political offense exception. The Department is generally pleased with the formulation of the political offense provision in H.R. 2643. The Department supports the division of extraditable offenses into two categories-those which can never be considered political offenses and those which may be so considered under "extraordinary circumstances." The "extraordinary circumstances" text, as elaborated by the Committee Report, will aid the courts in fairly and consistently deciding cases which raise this issue. The Department suggests that rape be included in the list of offenses which may never be considered a political offense. The Department prefers the "clear and convincing" test contained in the Administration's bill and S. 220 rather than the "preponderance of the evidence" test of H.R. 2643 as the appropriate burden of proof for determining the political offense issue. Finally, the Department strongly supports the Justice Department's position on the bail provisions of H.R. 2643.

PREPARED STATEMENT OF DEPUTY LEGAL ADVISER DANIEL W. MCGOVERN

Mr. Chairman and Members of the Subcommittee on Crime, I appreciate this opportunity to appear before you to express the Department of State's position on H.R. 2643-the proposed "Extradition Act of 1983." In my prepared testimony I will confine myself to the one issue of overriding importance for the Department of Statethe political offense exception.

As the Subcommittee is well aware, in the last Congress the Administration initially supported legislation which would have taken the political offense issue away from the courts and placed it within the exclusive jurisdiction of the Secretary of State. Accordingly, in hearings before this Subcommittee on January 26, 1982, the Department opposed H.R. 5227, a predecessor of the bill you consider today, insofar as it provided that the political offense issue would remain within the jurisdiction of the courts. In the hearings on H.R. 5227, the Department contended that the courts have failed to develop a definition of "political offense" that can be applied with consistent results. The guideline established by H.R. 5227 was too vague to be useful, the Department argued, because it simply stated that certain specified offenses were not normally to be considered political offenses. To tell the courts that murder, for example, is not normally to be considered a political offense, the Department noted, would be to give judges little or no guidance as to when that crime should be considered a political offense.

However, in drafting the political offense provisions of H.R. 2643, Chairman Hughes has, I am pleased to say, made significant changes that satisfactorily resolve the concerns we expressed regarding the treatment of that subject in H.R. 5227. Instead of using the qualifier normally, H.R. 2643 provides that specified offenses are not to be considered political offenses except in extraordinary circumstances. More importantly, the Report issued by the Committee on the Judiciary on the proposed Extradition Reform Act of 1982 makes it clear that the extraordinary circumstances test is a balancing test. The factors to be weighed in striking the balance include: (1) whether the victims were civilian, governmental or military; (2) the relationship between the person sought and any political organization and whether the conduct allegedly engaged in was done in furtherance of the group's political goals; and (3) the relative seriousness of the offense (Report No. 97-627, Part I, pp. 24-25). The Department is satisfied that the extraordinary circumstances test, as amplified in the committee report, will provide the courts with sufficient guidance to ensure fair and consistent results in the cases involving offenses to which it is applicable.

I am also pleased to note that in drafting H.R. 2643, Chairman Hughes has followed a recommendation made in the last Congress by the Senate Foreign Relations Committee by dividing the list of specified offenses into two groups. The first group includes offenses such as aircraft hijacking or attacks on diplomats as to which the United States is under a multilateral treaty obligation to either extradite persons charged with such offenses or submit their cases for prosecution. The first group also includes narcotics offenses. With regard to an offense listed in the first group, a court could not, under any circumstances, find such an offense to be a political offense (Report No. 97-627, Part 2, pp. 4-5). The second group, which includes common law crimes of violence such as murder, would be subject to the extraordinary circumstances test. I would note that the extradition legislation proposed by the Administration in this Congress, which is included in the proposed Comprehensive Crime Control Act of 1983, follows this approach.

Having explained why H.R. 2643 is more acceptable to the Department of State than was H.R. 5227, le me briefly address a facet of the proposed legislation that continues to trouble us-the standard of proof which a fugitive would have to satisfy