Ahmad v. Wigen

Citation726 F. Supp. 389
Decision Date26 September 1989
Docket NumberNo. 89-CV-715.,89-CV-715.
PartiesIn the Matter of the Petition of Mahmoud El-Abed AHMAD, also known as "Mahmoud Abed Atta," Petitioner, for a writ of Habeas Corpus as v. George WIGEN, as Warden of the Metropolitan Correctional Center of the Federal Bureau of Prisons, Romolo J. Imundi, as United States Marshal for the Southern District of New York, James A. Baker, as Secretary of State of the United States and Richard Thornburgh, as Attorney General of the United States, Respondents.
CourtU.S. District Court — Eastern District of New York




Ramsey Clark, Lawrence W. Schilling, Peter B. Meadow, New York City, for petitioner.

Andrew J. Maloney, U.S. Atty., E.D. New York, Brooklyn, N.Y., for respondents; Jacques Semmelman, Asst. U.S. Atty., Murray R. Stein, U.S. Dept. of Justice, of counsel.

TABLE OF CONTENTS I. Procedural History II. Scope of Review A. Generally B. Res Judicata and Double Jeopardy C. Jurisdiction 1. United States 2. Israel D. Probable Cause E. Political Offense Exception 1. Definition 2. Burden of Proof 3. Scope of Review 4. Evidence

III. Requesting Nation's Probable Treatment of Petitioner A. Due Process Exception to the Rule of Non-Inquiry 1. Generally 2. United States Precedent 3. International Precedent B. Burden of Proof C. Hearing in this Court 1. Inhuman Treatment 2. Prison Conditions 3. Integrity of Requesting Nation's Criminal Justice System IV. Conclusion


WEINSTEIN, District Judge.

This case raises serious questions—some of them novel—about the United States' obligations under an extradition treaty and the courts' role in ensuring that those extradited are treated fairly. As indicated below, two changes in law must now be recognized: The "political offense" bar to extradition is narrowed to exclude terrorism and acts of war against civilians. A correlative expansion is required in courts' power to ensure that those extradited are granted due process and are treated humanely. Petitioner has been afforded due process in this country, and adequate guarantees exist that he will be fairly treated in Israel, the country seeking his extradition to stand trial for alleged terrorist acts against its citizens.


Mahmoud El-Abed Ahmad seeks a writ of habeas corpus, 28 U.S.C. § 2241, to prevent his extradition to Israel to stand trial. On April 12, 1986, he allegedly attacked by firebombs and automatic weapons fire a passenger bus en route to Tel Aviv traveling between Israeli settlements in the occupied territory of the West Bank. Death of the bus driver and serious injury to one of the passengers resulted.

Petitioner, a naturalized United States citizen, formerly a resident of the West Bank, allegedly fled before he could be apprehended. His two alleged accomplices were convicted in Israel and sentenced to life imprisonment for their admitted participation in the planning and execution of the attack. In sworn statements, the co-conspirators implicated petitioner and described their mutual membership in the Abu Nidal Organization, an international terrorist group. That group publicly announced its responsibility for the attack.

A year later petitioner was located in Venezuela. Venezuelan officials detained him because of suspected activities in that country on behalf of the Abu Nidal Organization. Venezuela had no extradition treaty with Israel. The Venezuelan authorities advised the United States Ambassador that they were going to expel petitioner to his country of citizenship, the United States. Venezuela placed petitioner on a commercial airline flight from Caracas to the United States. During the flight FBI agents executed a warrant for the provisional arrest of petitioner issued by United States Magistrate John L. Caden of the Eastern District of New York.

Pursuant to the Convention on Extradition Between the Government of the United States and the Government of the State of Israel (the "Treaty"), Dec. 10, 1962, 14 U.S.T. 1707, T.I.A.S. No. 5476, Israel formally requested the extradition of petitioner from the United States on June 26, 1987. Each of the crimes petitioner is charged with under Israeli Penal Law—murder, attempted murder, causing harm with aggravating intent, attempted arson, and conspiracy to commit a felony—is covered by the Treaty.

Magistrate Caden held extradition hearings in December, 1987 and February, 1988 pursuant to 18 U.S.C. § 3184. In June, 1988 Magistrate Caden denied the extradition request on the ground that the attack on the passenger bus constituted a "political act" for which petitioner was immune from extradition under the Treaty and that, even if he were subject to extradition, the court lacked jurisdiction because petitioner had been brought illegally into the United States. In re Extradition of Atta, 87-0551-M, 1988 WL 66866 (E.D.N.Y. June 17, 1988) (LEXIS 60001).

The United States Attorney filed a second extradition complaint seeking de novo consideration. An independent extradition hearing was then held before United States District Judge Edward R. Korman, sitting as an extradition magistrate. He relied on the record before Magistrate Caden and additional evidence received between July and October of 1988. Each party called witnesses and offered exhibits. The court called an expert witness who testified by telephone from Israel.

On February 14, 1989 Judge Korman granted the extradition request. He held that res judicata and double jeopardy did not bar the second complaint; if there were any impropriety in the manner petitioner was deported from Venezuela to the United States it did not deprive the court of jurisdiction; the crime alleged was not within the political offense exception to the Treaty; and there was sufficient probable cause to certify petitioner for extradition. In re Extradition of Atta, 706 F.Supp. 1032 (E.D.N.Y.1989) (hereafter Ahmad).

By petition for a writ of habeas corpus, petitioner appealed from Judge Korman's order on March 3, 1989. He contended that his alleged crime constituted a political act, that there was insufficient probable cause shown, that Judge Korman lacked jurisdiction and that the court was barred by res judicata and double jeopardy from reconsidering the extradition request denied by Magistrate Caden. In addition, petitioner claimed that should he be extradited to Israel he would face procedures and treatment "antipathetic to a court's sense of decency." Because this final ground had not been raised in any prior proceeding, petitioner requested an evidentiary hearing to demonstrate that the Israeli judicial system would not afford him due process and that he would be subject to conditions of detention and interrogation in violation of universally accepted principles of human rights.

The government opposed petitioner's request for a hearing. It asserted that the scope of habeas review is extremely narrow and that the rule of non-inquiry prohibited the court from inquiring into the integrity of the requesting state's judicial system. Neither side requested that the issue be referred to Judge Korman. The petition was referred to the present judge by random selection.

On May 16, 1989 this court ruled from the bench that it would consider petitioner's due process claim and permit both parties to submit further evidence on this and any other issue. The government sought a writ of mandamus from the Court of Appeals for the Second Circuit to prohibit the court from holding a hearing and from receiving evidence on the probable nature of the judicial procedures of the requesting nation in an extradition matter. On June 20, 1989 the Court of Appeals denied the writ of mandamus.

This court held evidentiary hearings in July and August of 1989 to supplement the record before Magistrate Caden and Judge Korman. Both parties submitted documentary evidence. Petitioner called four witnesses to testify on the Israeli judicial process and conditions of detention: Professor John Quigley, Abdeen M. Jabara, Leah Tsemel, Esq. and Sami Esmail. Preserving its objection to the proceedings, respondent called two witnesses, Professors Alan Dershowitz and Monroe Freedman, and submitted statements of United States officials who had observed trials in Israel. A representative of the Israeli government certified the protections petitioner would receive in Israel. See Appendix attached infra. The parties then fully briefed and argued the case in September, 1989.

In all, some fourteen days of evidentiary hearings, and extensive oral arguments based upon full briefs and the court's own research, were devoted to this case. Petitioner has had a full opportunity to be heard.

A. Generally

The sole mechanism for review of a magistrate's order approving extradition is a collateral habeas corpus proceeding. There is no statutory provision for a direct appeal. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920) ("proceeding before a committing magistrate in international extradition is not subject to correction by appeal"); Demjanjuk v. Petrovsky, 776 F.2d 571, 576 (6th Cir. 1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976).

In extradition cases, the scope of habeas corpus review is limited, according deference to the magistrate's (here Judge Korman's) determination. Courts have uniformly purported to stay within the scope of review established by Justice Holmes in Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925):

Habeas corpus review is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence

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