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Published online by Cambridge University Press: 20 March 2017
Senior Judge Byron G. Skelton of the United States Court of Claims is sitting by designation.
* [Reproduced from 641 Federal Reporter, 2d Series, 504-24 (1981).
[U.N. General Assembly Resolution 36/171 of December 16, 1981, concerninthe extradition of Mr. Eain, appears at page 442. The Notes Verbale of Isr (dated December 31, 1981) and the U.S. (dated January 4, 1982) appear at 44
1 Tiberias is a popular resort town on the westcoast of the Sea of Galilee.
2 At the time Tiberias was unusually crowdedwith young people gathering for a youth rally.
3 Originally petitioner contended that he wasnot the person charged in Israel. The government presented fingerprint and photographic
4 For purposes of this opinion, we will refer toboth the Palestine Liberation Organization and Al Fatah by the initials “PLO”.
5 The uncorroborated testimony of an accomplicehas been held sufficient to support even the higher reasonable doubt standard necessaryfor a criminal conviction. Suhl v. United States, 390 F.2d 547 (9th Cir. 1968) (testimonyof accomplice sufficient even though inconsistent with only evidence connecting defendantwith offense). See United States v. Lee, 506 F.2d 111 (D.C.Cir.1974) (conviction may restsolely on uncorroborated testimony of an accomplice); United States v. Green, 446 F.2d 1169 (5th Cir. 1971) (no absolute rule of lawpreventing convictions on the testimony of an accomplice).
6 The issue of corroboration generally arises inthe context of search warrants; however, the same standards are applicable to the issuanceof an arrest warrant. See Giordenello v. United States, 357 U.S. 480, 485-88, 78 S.Ct. 1245,1249, 2 L.Ed.2d 1503 (1958).
7 We find no merit in petitioner's suggestionthat the confessions were inherently suspect by virtue of being transcribed in Hebrew as opposedto the declarants' native Arabic. The magistrate considered this fact along withstatements by Judge Shabtay of the Magistrate's Court of Jerusalem that he questionedYasin and Jaber in Arabic and determined that they understood their statements and madethem of their own free will.
8 Petitioner relies on Application of D’Amico, 185 F.Supp. 925 (S.D.N.Y.1960), for a rule thatevidence that an accomplice has recanted his testimony is always admissible in an extraditionproceeding because the probative value of such testimony is “thin.” However, petitioner'scharacterization of the decision in D’Amico is inaccurate. In that case the evidence ofrecantation already had been admitted by the magistrate. The district court on habeas corpusreview had no opportunity to consider whether or not the evidence of recanting wasproperly on the record, and therefore made no determination on the issue. The district courtin D’Amico remanded the case to the magistrate because it was unclear whether or not themagistrate had made a specific determination on the issue of probable cause.
9 Petitioner also urges that reports alleging torturein Israeli prisons should have been admitted to explain the circumstances of Yasin'sconfession. Petitioner offered no proof that Yasin himself suffered any mistreatment. Weare asked to take judicial notice that Israel routinely tortures prisoners, an invitation wedecline. Judicial notice could be taken only of a matter not reasonably subject to dispute andwhich is generally known to the court, or otherwise is capable of accurate and ready determinationby sources that cannot reasonably be questioned. Cf. Fed.R.Evid. 201 (judicial noticein contexts other than extradition). We note that the reports of various organizations whichpetitioner brings to our attention were not themselves all unanimous in their findings;some contain both majority and minority conclusions. No aspect of this situation lends itselfto judicial notice. See generally, W. Hurst,Statutes In Court 89-96 (1970).
10 See Chicago & Southern Airlines v. Waterman Corp., 333 U.S. 103, 68 S.Ct. 431, 92L.Ed. 568 (1948).
11 The only case with any similarity which wehave found that permits the Executive to make the initial determination in extradition mattersthat the crime charged was committed and that the person sought to be extradited committedit, Sayne v. Shipley, 418 F.2d 679 (5th Cir. 1969), involved a treaty that implicated the“special relationship between the Canal Zone and the Republic of Panama.” Id. at 686. Thecourt indicated, however, that any Executive determination to extradite still would be subjectto review on habeas corpus.
12 A clause excepting political offenses is a“provision” of the treaty. See generally cases cited’in Note, 62 Colum.L.Rev. at 1322, nn. 73,74. Compare Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)(habeas corpus available to determine “whether the offense charged is within the treaty”).
13 Prior to the enactment of the original versionof 18 U.S.C. § 3184, the Executive exercised complete control over extradition withoutreference to the courts. Bassiouni at 505. Thus, from 1794 to 1842 the Executive hadunfettered discretion in this area. Immediately upon the statute's enactment, the Executivebegan a policy of deference to the role of the Judiciary as mandated by Congress. See 4 Op.Att’y Gen. 201 (1843).
14 This distinguishes the cases cited by thegovernment that confer sole discretion on the Executive to determine when a state of war orbelligerency exists in another country. In re Cooper, 143 U.S. 472, 12 S.Ct. 453, 36 L.Ed. 232(1892); 77ie Three Friends, 166 U.S. 1, 17 S.Ct. 495, 41 L.Ed. 897 (1897); Underhill v. Hernandez,168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456 (1897). In those situations a court would beunable definitively to say that a specific level of hostility had been reached. When consideringthe political offense exception, a court need consider only whether some incidents of politicalviolence have occurred, and not whether the violence has risen to a particular level.We note especially the following language from In re Cooper.We are not to be understood, however, as underrating the weight of the argument thatin a case involving private rights, the court may be obliged, if those rights are dependentupon the construction of acts of Congress or of a treaty, and the case turns upon a question the executive to do so, to renderjudgment, “since we have no more right to decline the jurisdiction which is given than tousurp that which is not given.” 143 U.S. at 503, 12 S.Ct. at 460 (emphasissupplied). The question, then, is notauthorizing the Executive to make the determination whetherthe political offense exception applies, nor is there a statute defining the term.We also note that The Three Friends case makes specific mention of the numerous legalconsequences of declaring a “state of belligerency,” which include impacts on the conduct ofcommerce and even the war power, 166 U.S. at 63, 17 S.Ct. at 502. We emphasize that therehas been no showing that such broad legal consequences would obtain in the case beforeus upon a finding that political upheaval isoccurring in Israel.
15 We also note that the Judiciary has madenumerous decisions that touch our nation's domestic and foreign policy concerns and implicatematters that traditionally are thought of as Executive functions—on occasion to the chagrinof the latter branch. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct.2140, 29 L.Ed.2d 822 (1971) (permitting publication of Pentagon Papers in face of argument of threat to relations with allies); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (restricting Executivediscretion against claim of necessity to further international military policy). See also Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (appraisal of internationaltensions and conditions in evaluating constitutionality of statute).
16 Note, Executive Discretion in Extradition, 62 Colum.L.Rev. 1313, 1323 (1962).
17 Compare the “Act of State” concept, which says that “the courts of one nation will not sitin judgment on the acts of the government ofanother done within [the latter's] own territory.” Underhill v. Hernandez, 168 U.S. 250, 252,18 S.Ct. 83, 84, 42 L.Ed.2d 456 (1897).
18 Compare Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir. 1978), where the court saysthe extradition hearing is limited, inter alia, “merely to ascertain whether a treaty applies… .” The government cites both the Sabatier and Berenguer opinions in support of theargument that the courts may only make a determination on the issue of probable cause,which in the government's view excludes judicial application of the political offense exception.As we discuss in an earlier part of this opinion, it has been the law of extradition inthis country that the probable cause hearing comprehends a determination that the crimecharged is one “under the provisions of the treaty (i. e., that it is not a political offense).
18 U.S.C. § 3184. While the portion of theSabatier opinion quoted in this footnote, if read alone, may be construed to support the government'sview, when read in context of that opinion and of general principles governing extradtion, it suggests quite a different view. At theoutset of the opinion, 586 F.Supp. at 868, the court quotes the Supreme Court in Fernandez v. Phillips. 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925), for the proposition that themagistrate is to determine “whether the offense charged is within the treaty,” languagewhich tracks that of § 3184 both in form and meaning. Since the Sabatier court was notpresented with an issue implicating an exception to the treaty, it is hardly surprising thatlater in the opinion the court did not specifically refer to broader duties of the magistrateduring the extradition hearing. The same appears to be true in United States v. Clark, 470F.Supp. 976 (D.C.Vt.1979), which cites Sabatier for the more narrow definition of “its role inthis proceeding.” Id. at 978. The Sabatier and Clark opinions merely re-state the statutoryframework that leaves to the Judiciary the initial determination whether the political offenseexception applies.
19 See “Covenant Against Israel,” adopted by the Palestinian National Council in 1968 anddiscussed by one of petitioner's witnesses during the hearing before the magistrate. Thedocument asserts that “Palestine” is the rightful homeland solely for “Palestinians.” Article6 of the Covenant then states that “Jews who were living permanently in Palestine until thebeginning of the Zionist invasion will be considered Palestinians.” A reading of the testimony of that witness, who was produced t”petitioner's expert in this area, indicates thai the document would mark the “Zionist invasion” as beginning in 1917 or 1922. Jews who arrived in Israel after those years would beunwelcome in the Palestinian state. Became they comprise the bulk of the present-day l*Iraeli Jewish population, they are the ui*targeted group of the “armed struggle” (Covenant, Article9) that the PLO wages.
20 We acknowledge that it may not be “textbook”political science and sociology to distinguish between disagreement with a governmentand with the society that establishes it. Nevertheless, as a practical matter it must berecognized that within every society there will be elements who are dissatisfied with theirgovernment. At times this dissatisfaction may be expressed, deliberately or by reason of anuncontrollable flare of temper, in violent acts that have an impact on private social interests.We do not have occasion in this case to considerthe boundaries within which the political offense exception operates in these situations.We are concerned here only with a violent act focused at the social structure.
21 Cf. Note, Bringing the Terrorist to Justice: A Domestic Law Approach, 11 Cornell Int’l L.J.71, 82 (1978), discussing the Swiss concepts of “predominance” and “proportionality“: “Thecriminal action must be ‘immediately connected with its political object,’ and the damagecaused must not be out of proportion to the desired result.” The parties did not argue thedirect application of these concepts to American extradition law. While proportionality andpredominance may be unarticulated concepts in the existing Anglo-American framework ofextradition, we leave consideration of thatquestion for another time.
22 See 170 F.Supp. at 383-86 for a full accountof the Artukovic case's convoluted progress through the judicial system.
23 As a collateral matter, petitioner claimsthere is no evidence that those, who were killed and injured in the Tiberias bombing were civilians,and thus argues that discussion of their civilian status is inappropriate at all levels ofthis case. It should be pointed out that our discussion revolves around the population to which the violent act was directed. The factthat the explosive was placed on a busy public street during a public holiday in a resort cityand that it is alleged petitioner said he would void all contact with the Israeli militarymakes it clear that the explosion was meant to snare civilian victims. In any event thoselulled were children. There is nothing in the record to suggest the possibility of any Israelimilitary involvement in any way.
24 The extradition treaty involved in Omelas v. Ruiz apparently excepted crimes of a “purelypolitical” character from its scope. It might be argued that the Supreme Court simply wasdistinguishing “pure” political offenses (treason, sedition and espionage), which never areextraditable, see Lubet & Czaczkes at 200, from situations where a petitioner claims he isaccused of committing “relative” political crimes (common crimes with political overtones),which may not be extraditable, but which pose more difficult problems of proof.However, American courts “read the political oflense exception broadly enough to bring inreUuve offenses,” Note, Bringing the Terrorist to Justice. A Domestic Law Approach, 11 Cor-all Inn LJ. 71, 82 (1978), and the Supreme twin's discussion in Ruiz of the acts constitutingthe alleged crimes leaves no doubt that the specific treaty language made no difference tothe political offense analysis: relative political crimes fell within the exception for “purelypolitical” crimes. Otherwise, the Court need not have reviewed at length the specific actsalleged. A “pure” political offense exception clause, had it made any difference to the analysis,would have been determinative without further discussion.At any rate, the only support we have found for a substantive distinction in American lawbetween “pure” and “relative” political offenses under specific treaty language is containedin Garcia-Mora, 48 Virginia L.Rev. at 1232. However, Garcia-Mora goes on to citean American treaty with language identical to that involved in this case, and says the language applies to except from extradition onlypure political crimes. If Garcia-Mora is correct, then petitioner automatically is extraditable,since no one argues here that the acts of which he is accused constitute pure politicaloffenses. The point was not argued in thiscase.
25 On January 19, 1981, petitioner filed in thiscourt a motion entitled “Emergency Petition to Rule on Appellate Motion to Reconsider Bail.”Petitioner has made previous applications for bail. The present motion, which reveals noemergency, but alleges substantial security for bail and reargues the merits of the case, is nowmoot.
26 The Secretary of State has two months fromthe date of commitment following final judicial action in this case to surrender petitioner to theproper Israeli authorities if the Secretary in his discretion determines that surrender is appropriate.18 U.S.C. § 3188; Jimenez v. U. S. one Court for Southern Dist. of Florida, 84 SO 1411 L.Ed.2d 30 (1963) (Goldberg, J., in chem bers). The final decision of whether pettonris ultimately to be surrendered or not bes the Secretary and not with this court.
27 Our holding in this case is not intendeany way to reflect a view one way or the ortr as to the merits or equities of any actual political problems existing between Israel art other parties. Those judgments are clearlyoutside judicial bounds.
* [Reproduced from the text provided by the Office of the Attorney General, State of California.[The text of the Convention Abolishing the Requirement of Legalization for Foreign Public Documents appears at 20 I.L.M. 1409 (1981).The notice of its entry into force for the United States appears at 20 I.L.M. 1405 (1981).]