The task of the political offense exception, therefore,
is to separate terrorism from what might be called
legitimate rebellion. Section 3194 (e) (2) (E) accomplishes

this goal.

With regard to acts of political violence which do not
amount to terrorism, Section 3194 (e) (3) allows the court of
extradition to consider the circumstances of the offense in
order to determine the applicability of the political offense
exception. Thus, acts of violence against the state are neither
ruled in nor ruled out of the exception. Rather, the court is
called upon to apply a balancing test considering the status
of the victim, the existence of an uprising, the political
involvement of the offender, the seriousness of the offense,
and other relevant factors.

This approach is definitely broader in its dispensation
of asylum than was the blanket exclusion of all acts of
violence which was included in prior drafts of the Extradition
Reform Act. See, e.g., H.R. 2643. It is important to note,
however, that H. R. 3347 nonetheless contains a more restrictive
definition of the political offense exception than does much
of the recent case law. For example, Section 3194 (e) (3) makes
it clear that mere contemporaneity with a civil uprising will
not be sufficient in and of itself to require the application
of the political offense exception. Furthermore, the burden
of proof provision of Section 3194 (d) (2) (C) makes it clear that
the court of extradition will begin with the presumption that
the political offense exception does not apply. The defendant
will be required to prove that the offense is political.

The primary virtue of Section 3194 (e) (3) is its flexibility.
It allows a court to examine the circumstances of certain
offenses (although not those which amount to terrorism), and
to avoid the anomaly of requiring the extradition of somebody
like Lech Walesa. Finally, by eliminating the troublesome term
"extraordinary circumstances," H.R. 3347 eliminates the need to
define those words through future litigation and harmonizes the
definitional section with the requirement of proof by a
preponderance of the evidence.

Thank you for the opportunity to state my opinions. Please
let me know if you have any questions.

Very truly yours,

SL:ml

Steven Lubet

Professor of Law

BOARD OF DIRECTORS
Jo R. Backer
Maureen R. Berman
Robert L. Bernstein
Tom A. Bernstein
Bruce Bushey
Merrell E. Clark, Jr.
Ramsey Clark

Jack David

The bill to reform international extradition is scheduled for markup before the full House Judiciary Committee on Tuesday, October 4, 1983. Attached to this memorandum is a copy of our testimony before the Subcommittee on Crime of the Judiciary Committee on May 5. The testimony focuses on two issues: the definition of what constitutes a "political offense" and thus a defense to extradition, and the role of the courts in assessing whether a request for extradition is really a pretext for persecution by the requesting country. In our view, a bona fide refugee should not risk extradition for a political offense or as a pretext for persecution. amendments to the bill by the Sub-committee address only Deborah Greenberg some of our considerations in this regard.

Michael I. Davis
Adrian W. DeWind
Norman Dorsen

Fr. Robert F. Drinan
Bruce J. Ennis
Benjamin Gim
R. Scott Greathead

Lani Guinier

Louis Henkin

Elizabeth Holtzman

Virginia A. Leary
Stanley Mailman

D. Barrington Parker,
Bruce Rabb
Barbara A. Schatz
Orville H. Schell

Jerome J. Shestack
James R. Silkenat
Rose Styron
Telford Taylor

The

As to the political offense defense, the Subcommittee limited those crimes that can never constitute a political offense, and codified the definition of political offense enunciated in In re Castioni, a nineteenth century British case. While these changes ameliorate the concerns set forth in our prior testimony to some extent, the standards are still overly formalistic. Rather, they should be more flexible and involve a factor analysis, corresponding to the inquiry in the asylum

area.

As to the role of the courts in assessing whether a request for extradition is a pretext, the Subcommittee retained current law permitting such an inquiry under appropriate circumstances. While this outcome addresses many of the concerns set forth in our testimony, it would be desirable to avoid any ambiguity and make express the authority of the courts to make the inquiry in question.

If you have any questions concerning these matters, then please do not hesitate to contact me.

FOUNDED BY THE INTERNATIONAL LEAGUE FOR HUMAN RIGHTS AND THE COUNCIL OF NEW YORK LAW ASSOCIATES

STATEMENT OF ARTHUR C. HELTON

ON

U.S. EXTRADITION AND ASYLUM POLICY

before the

SUBCOMMITTEE ON CRIME OF THE

COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

MAY 5, 1983

INTRODUCTION

Chairman Hughes, thank you for inviting me to

appear at today's hearing. My name is Arthur Helton. I am the director of the Political Asylum Project of the New York based Lawyers Committee for International Human Rights.

Since 1978, the Lawyers Committee has been a public interest law center working in the areas of international human rights, refugee and asylum law. The Political Asylum Project of the Committee was created in late 1980 to provide representation to individual asylum applicants in the United States. The Project utilizes volunteer lawyers whom it trains and supervises. Since 1978, the Lawyers Committee has represented more than 250 asylum applicants from over 30 countries. Based on this experience, the Committee has testified in Congress and prepared papers on various asylum and refugee policy matters.

Our testimony today concerns H.R. 2643, a bill to amend Title 18 of the United States Code with respect to extradition. In particular, I wish to comment upon the proposed provisions concerning the "political offense" exception to extradition, including the standards by which to determine whether an offense is political in character. I also wish to comment upon the need to maintain the power of the courts to inquire into whether a request for extradition is a mere pretext for persecution on account of race, religion,

nationality, membership in a particular social group and political opinion. In our view, the political offense analysis should be the same as that utilized in the refugee area, and federal court jurisdiction should be retained in order to square the extradition procedure with United States law and treaty obligations regarding the treatment of persons who apply for political asylum in the United States.

THE PROPOSED POLITICAL OFFENSE EXCEPTION

The bill codifies prior law in that a person whose extradition is sought is permitted to raise as a defense the 1/ fact that the offense in question was a "political offense. Prior law is modified in the bill in that certain offenses, such as airplane hijacking, are excepted absolutely from the 2/ term "political offense. Others, including certain crimes of violence, are excepted, absent the existence of "extraordin3/

ary circumstances. No standards are set forth in the bill to define what circumstances should be deemed "extraordinary." This concept was introduced in a predecessor bill in the 97th Congress to add an element of flexibility to 4/

the "political offense" analysis. In fact, however, it simply engrafts onto the analysis a limited inquiry into the circumstances surrounding the commission of some offenses. The traditional, formalistic notion of what is a "political offense" is otherwise retained.