merely a pretext for persecution on account of race, religion, membership in a particular social group, nationality, or political opinion.

At the outset I would like to say the political offense analysis should be the same as that utilized in the refugee and asylum area and Federal court jurisdiction should be retained in order to square the extradition procedure in the United States with the law and treaty obligations that the United States has respecting those who apply for political asylum and seek entitlement to refugee status. The bill that we are looking at here today essentially retains the definition of political offense with respect to certain offenses. However, it excepts absolutely or conditionally certain of those offenses from the political offense analysis. Some of those include aircraft hijacking, which would be absolutely excepted, or certain violent crimes which would be be excepted absent extraordinary circumstances.

Now, 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 the political offense analysis. In fact, however, in our view, it simply engrafts on the political offense analysis a further, but somewhat limited, inquiry with respect to some but not all of the offenses. The traditional and formalistic notion that has been alluded to by others before you of what is a political offense is otherwise retained.

I think the statement in the Mackin case, in terms of the standard for defining political offenses is instructive. Essentially, in order to determine whether or not the offense in question was political, one has to show whether there was a war, rebellion, revolution, or political uprising at the time and site of the commission of the offense. Further, one has to show whether the offender was a member of the uprising group and finally whether the offense was incidental to or in furtherance of the political uprising.

The courts have agonized over these formalistic, traditional notions, particularly with respect to what constitutes an uprising and trying to square that standard with terroristic activities. And the courts have had great difficulty in that connection.

Now, in terms of the so-called rule of noninquiry, if I could just address that for a moment and then talk about our concerns both with respect to the political offense analysis and the rule of noninquiry. In terms of noninquiry, the current bill essentially prohibits the courts from inquiring into the background of an extradition request. That prerogative is left exclusively with the Secretary of State, and that is somewhat at variance with the current law. Under current law the courts, while ordinarily declining to withhold extradition, expressly reserve the right, in appropriate instances, to inquire into the background of an extradition request. Indeed, many times the courts have taken into consideration the adequacy of the judicial procedures in the country in question, et cetera.

Now, our concern with respect to both items, the political offense analysis and the rule of noninquiry, is that essentially they should be squared with their analogs in the asylum and refugee area. The other side of the political offense exception to extradition is the

question whether to grant political asylum in the United States to an alien who has been charged with or convicted of a crime. The nature of the inquiry and the standards employed in the refugee and asylum area and in the extradition area should be the same; otherwise, we face the peculiar anomaly of a refugee who may be extradited to face persecution.

It is instructive, then, to refer to in the asylum and refugee context. In the asylum context, in terms of whether or not an alien merits political asylum, ordinarily he or she has to establish a wellfounded fear of persecution upon return to the country of national origin on account of race, religion, nationality, membership in a particular social group, or political opinion.

In that respect, one is not entitled to refugee status and can be denied asylum if there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States. We then return to the question of what is a serious nonpolitical crime, and more pertinently, in terms of this legislation, what is a political offense.

The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, which has been recognized by the courts and the administrative authorities in the asylum area as persuasive, restates the history and the experience of the U.N. under the same refugee standard that we abide by in this country. The handbook, in determining if an offense is political in character, looks to the nature and purpose of the offense in question, including motive, unlike the suggestion in some of the case law in the extradition aimed, and the relationship between the offense and its alleged political purpose and objective, including whether or not the offense is grossly out of proportion to the alleged objective.

This is a much more flexible, individual-oriented analysis. It does not depend upon a characterization as to whether or not there is an "uprising" or not.

With respect to the rule of noninquiry and the nature of review in the asylum area there is initial administrative review of an alien's request for political asylum. In that regard there is a full factfinding opportunity before an administrative officer, with entitlement to process and to discovery upon the showing required under the regulations. In sum there is a full opportunity to present a case and show that an alien has a well-founded fear of persecution.

In deportation proceedings an adverse agency determination can be reviewed in the appropriate court of appeals on petition for review. In the exclusion context, an adverse agency decision can be reviewed by writ of habeas corpus in a Federal district court with a further review and appellate review available in both contexts. The courts have not hesitated, under appropriate circumstances, to review asylum cases, including reviewing the facts which underlie the asylum determinations to determine whether or not there is substantial evidence in the record to support the agency determination. Some of those cases are referred to in my statement.

To the extent that the courts do not, or cannot, review a political offense determination, then to that extent, as I said before, asylum

applicants in the United States, or asylum seekers who are ultimately awarded refugee status in the United States, risk a peculiar anomaly; namely, in particular an asylum seeker may be granted asylum because of the political character of the offense in question but extradited to face persecution if the Secretary of State, under the current bill, disagrees about the characterization of the offense for whatever reason, including ideological or other policy considerations.

The Department of State, on the asylum side, plays expressly an advisory role. To give the Secretary of State an exclusive role in the extradition context would simply introduce the risk that the decision would be made as a matter of political expedience rather than neutral principle. For that reason, it is our view that the review by the independent judiciary should be maintained in the extradition context, both in connection with a neutral and individualistic inquiry on the question of political offense and whether or not a request for extradition is really a pretext for persecution. Thank you.

[The statement follows:]

PREPARED STATEMENT OF ARTHUR C. HELTON ON U.S. EXTRADITION AND ASYLUM

POLICY

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 area 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 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 expected absolutely from the term "political offense.2 "Others, includ

The court shall not order a person extraditable after a hearing under this section if the court finds... the person has established by the preponderance of the evidence that any of fense for which such person may be subject to prosecution or punishment if extradited is a political offense. Section 3194(d)2)C).

2 For the purposes of this section, a political offense does not include

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ing certain crimes of violence, are excepted, absent the existence of "extraordinary circumstances."3 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 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.

THE TRADITIONAL POLITICAL OFFENSE EXCEPTION

The standard employed by the courts in the United States to determine whether extradition should be refused on the grounds that the offense in question is a political one is derived from a leading nineteenth century British case, In re Castioni,5 which provide that such offenses must be "incidental to and [have] formed a part of political disturbances." Relatively few American Courts have addressed the issues recently. Two recent American cases, Matter of Mackin, in which extradition was denied, and Eain v. Wilkes,' in which it was permitted, serve to illustrate the prevailing standard.

In Mackin, the court reviewed the case law and distilled the following factors to determine whether the Offense in question was political: (1) Whether there was a war, rebellion, revolution of political uprising at the time and site of the commission of the offense; (2) whether Mackin was a member of the uprising group; and (3) whether the offense was "incidental to" and "in furtherance of" the political uprising.8

Mackin involved a request by the United Kingdom for the extradition of a member of the Provisional Irish Republican Army (PIRA) for the attempted murder of a British undercover soldier. As to the existence of a political uprising, the court concluded that ". there was a political conflict in Andersontown, Belfast, Northern Ireland in March of 1978 which was part of an ongoing political uprising, fluctuating in intensity, but nevertheless of sufficient severity to satisfy the first prong of the political offense exception." The court's determination relied on: (1) the high level of violence in the area at that time; (2) the presence of 13,000 British troops, 420 of whom were stationed in Andersontown to contain the violence; (3) the existence of three British army forts in the immediate locale; (4) the establishment of special non-jury courts by emergency legislation to deal with the rise in terrorism; (5) the derogations filed by the United Kingdom from the European Convention of Human Rights to allow it to forego it obligations thereunder by virtue of the existence of a "public emergency threatening the life of a nation;" and (6) the campaign of violence maintained by the PIRA aimed at British army and Loyalist forces

(A) an offense within the scope of the Convention for the Suppression of Unlawful Seizure of Aircraft (signed at The Hague on December 16, 1970);

(B) an offense within the scope of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (signed at Montreal on September 23, 1971);

(C) a serious offense involving an attack against the life, physical integrity, or liberty of internationally protected persons (as defined in section 1116 of this title), including diplomatic agents;

(D) an offense with respect to which a multilateral treaty obligates the United States to either extradite or prosecute a person accused of the offense;

(E) an offense that consists of the manufacture, importation, distribution, or sale of narcotics or dangerous drugs; or

(F) an attempt or conspiracy to commit an offense described in subparagraphs (A) through (E) of this paragraph, or participation as an accomplice of a person who commits, attempts, or conspires to commit such an offense. Section 3194(e)(2).

3 For the purposes of this section, a political offense, except in extraordinary circumstances, does not include

(A) an offense that consists of homicide, assault with intent to commit serious bodily injury, kidnaping, the taking of a hostage, or a serious unlawful detention;

(B) an offense involving the use of a firearm (as such term is defined in section 921 of this title) if such use endangers a person other than the offender;

(C) rape; or

(D) an attempt or conspiracy to commit an offense described in subparagraph (A), (B), or (C) of this paragraph, or participation as an accomplice of a person who commits, attempts, or conspires to commit such an offense. Section 3194(e)(3).

'H.R. Rep. No. 97-627, Part I, 97th Cong. 2d Sess. 24 (1982).

5 [1891] 1 Q.B. 149.

6 No. 80 Cr. Misc. 1, slip op. at 54 (S.D.N.Y. Aug. 13, 1981), Habeas corpus denied, 668 F.2d 122 (2d Cir. 1981).

7641 F. 2d 504 (7th Cir. 1981), cert. denied, 454 U.S. 894 (1981).

8668 F.2d 122 at 125.

9 No. 80 Cr. Misc. 1, slip op. at 54 (S.D.N.Y. Aug. 13, 1981.

against British Dominion of Northern Ireland, and in support of a unified, independent Irish nation.10

As to Mackin's membership in the uprising group, the court found that the requisite connection to the group had been established. The alleged acts were in conformity with a member's general functions in the PIRA, and Mackin "bore no personal ill-will or malice toward the victim-soldier."11

As to the question of whether the act was "incidental to" and "in furtherance of" a political disturbance, the court found that while the acts had not been "preplanned and directed by the PIRA" the requisite "substantial tie" between the alleged offense and the political activity and goals of the group had been shown in the "necessity of the situation."12

The second case, Eain v. Wilkes 13 involved a Jordanian national and a member of the Fatah faction of the Palestine Liberation Organization (PLO) whose extradition to Israel was requested on charges of murder and aggravated harm. Eain was alleged to have planted a bomb in the market area of Tiberias during a Jewish religious festival and youth rally. The blast had killed two boys and maimed and/or injured 36 other persons.

As to the political disturbance requirement, the court noted that it must constitute a "war, revolution or rebellion." The court distinguished the nature of the conflict in Israel from other disturbances where the political offense exception had been sustained, explaining that those "cases involved ongoing, organized battles between contending armies, a situation which, given the express nature of the PLO, may be distinguished."14

As to the question of whether or not the act was "incidental to" and "in furtherance of" a political uprising, the court held that there had been a failure to prove a direct link between the bombing and the political goals of the PLO. The individual's motives in committing the offense, furthermore, was held to have no bearing of the political character of the act.15

The applicability of the political offense exception to terrorist attacks was limited in Eain as well. The court relied on another nineteenth century British case which excluded from acts classified as "political offenses" those which are "directed primarily against the separate body of citizens." The case involved a bombing of an army barracks and a Parisian cafe by an anarchist. The political exception was held not to apply on the ground that "the party of anarchy is the enemy of all government.' ." 16 The court in Eain identified the following factors as relevant to the determination: (1) The civilian status of the victims and the randomness of their selection; and (2) the objectives supposed common to both terrorist and anarchist activity, namely "the destruction of a political system by undermining the social foundation of the government." 17

The court drew the distinction between terrorist activity and activity eligible to the classified as political offenses as the difference between "acts that disrupt the political structure of the state," and those that disrupt "the social structure that established the government." Terrorist activity, unlike political activity conforming to the test, "seeks to promote social chaos," in contrast to activity occurring in the contest of "[a]n ongoing, defined clash of military forces."

"18

The court applied these principles and found that the bombing failed to qualify as a political offense only because of its specific character as an "isolated act of violence." The PLO, the court found, "directs its destructive forces at a defined civilian populace" to further its aim of "[destroying] the Israeli political structure as an incident of the expulsion of a certain political structure as an incident of the expulsion of a certain population from the country." 19 there was no proof that the bombing was linked to PLO political and strategic objectives, particularly in view of the "terrorist" character of those objectives.

10 Id.

11 Id.

12 Id.

13 641 F. 2d 504 (7th Cir. 1981(, cert. denied, 454 U.S. 894 (1981).

14 Id. at 519

15 Id. at 520

16 Id. at 521, citing In re Meunier, [1894] 2 Q.B. at 419.

17 Id. at 521.

18 Id. at 521-522.

19 Id. at 520 n. 19.