Requested Extradition of Smyth, Matter of, 94-10495

• Decision Date: 11 December 1995
• Docket Number: No. 94-10495,94-10495
• Citation: 61 F.3d 711
• Parties: 95 Cal. Daily Op. Serv. 5875, 95 Daily Journal D.A.R. 10,012 In the Matter of the REQUESTED EXTRADITION OF James Joseph SMYTH. UNITED STATES of America, Plaintiff-Appellant, v. James Joseph SMYTH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 711

61 F.3d 711

95 Cal. Daily Op. Serv. 5875, 95 Daily Journal

D.A.R. 10,012

In the Matter of the REQUESTED EXTRADITION OF James Joseph SMYTH.

UNITED STATES of America, Plaintiff-Appellant, v. James Joseph SMYTH, Defendant-Appellee.

No. 94-10495.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 1995.

Decided July 27, 1995.

As Amended Dec. 11, 1995. ^*

Sara Criscitelli, U.S. Dept. of Justice, Washington, DC, Mark N. Zanides, Asst. U.S. Atty., U.S. Dept. of Justice, Oakland, CA, for plaintiff-appellant.

Karen L. Snell, Asst. Federal Public Defender, San Francisco, CA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: SNEED, SCHROEDER, and FERGUSON, Circuit Judges.

SCHROEDER, Circuit Judge:

This is a proceeding brought by the United States on behalf of the United Kingdom to extradite James J. Smyth to Northern Ireland. Smyth was convicted of the attempted murder of a prison officer in Belfast, Northern Ireland in 1978 and sentenced to 20 years' imprisonment. He escaped from the Maze Prison in Northern Ireland in September of 1983 and arrived in San Francisco several months later. The United States, at the request of the United Kingdom, seeks Smyth's extradition to Northern Ireland to serve the remainder of his prison term. Extradition is sought pursuant to the United States-United Kingdom Extradition Treaty, June 8, 1972, U.S.-U.K., 28 U.S.T. 227, and the Supplementary Extradition Treaty, June 25, 1985, U.S.-U.K., art. 3(a), reprinted in S.Exec.Rep. No. 17, 99th Cong., 2nd Sess. 15-17 (1986) (Supplementary Treaty).

The district court denied certification of extradition. This government appeal requires our court, for the first time, to examine the unique defense to extradition found in the 1986 Supplementary Extradition Treaty between the United States and the United Kingdom. See Supplementary Treaty. The Supplementary Treaty followed in the wake of a series of decisions by United States courts refusing to extradite to Northern Ireland individuals who had been charged with or convicted of acts of political violence. The treaty provisions, negotiated by President Reagan and Prime Minister Thatcher, and modified by the United States Senate, represent a difficult compromise between outrage and compassion: the outrage of the British government over the refusal of the United States to extradite persons whom the United Kingdom considered terrorists, and the compassion of the United States for individuals who, if extradited, might suffer unfair treatment and incarceration on account of their religious or political associations, not because of their criminal acts.

The Supplementary Treaty's key substantive provision, Article 3(a), creates a defense to extradition. It provides:

Notwithstanding any other provision of this Supplementary Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

Supplementary Treaty, art. 3(a).

The only other court of appeals decision that has construed the Supplementary Treaty's Article 3(a) defense is In Re Extradition of Howard, 996 F.2d 1320 (1st Cir.1993), which upheld extradition of an individual to England for trial. The First Circuit held that Article 3(a) was drafted with an eye to the discriminatory practices of the special Diplock court system applicable to those accused of terrorist acts in Northern Ireland, rather than aimed at the British legal system generally. Id. at 1331. The Howard court affirmed a ruling that the extraditee, a black man, would not suffer discrimination within the meaning of Article 3(a) if returned to England for trial on rape charges. Id. at 1332-33. In this case, we face a request for extradition to Northern Ireland of a person convicted of a crime that the U.K. regards as an act of terrorism.

Smyth was one of 38 Republican prisoners who made the 1983 escape from the Maze, a Northern Ireland maximum security prison. He arrived in San Francisco, California, and lived and worked in the Bay area until June 3, 1992, when he was arrested on a charge of making a false statement on a passport application in violation of 18 U.S.C. Sec. 1542, and taken into custody. On September 14, 1992, the U.K. filed a formal request for Smyth's extradition to serve the remainder of his sentence for the 1978 attempted murder conviction.

The district court held numerous hearings in the matter and eventually ruled that Smyth would, if extradited, face discriminatory detention and punishment both within the Maze Prison and upon his release into the general population. The court therefore denied the government's request for the certification of extradition. Neither the validity of Smyth's underlying conviction for attempted murder nor his 20-year sentence are challenged on appeal.

We have jurisdiction because the Supplementary Treaty provides for a right of direct appeal from district court extradition decisions made pursuant to Article 3(a). See Supplementary Treaty, art. 3(b). We reverse the district court because we hold that the record does not establish by a preponderance of the evidence that this extradition will lead to detention and punishment on account of Smyth's race, religion, nationality, or political opinions rather than on account of his conviction for attempted murder.

The legal proceedings in this case must be viewed against the backdrop of recent Irish history, and the Supplementary Treaty's unique provisions for judicial inquiry into the potential effects of a requested extradition to Northern Ireland.

The Supplementary Extradition Treaty

The record in this case bears out the violence that has racked Northern Ireland in the latter part of this century over whether Northern Ireland should remain a part of the United Kingdom or be joined with the Republic of Ireland. This has been a bloody struggle fueled by religion-political tensions. Both the Catholic "Republicans," a subset of the "Nationalists" (those who desire a united Ireland), and the Protestant "Loyalists," a subset of the "Unionists" (those who desire Northern Ireland to remain part of the U.K.), believe that the use of violence is a legitimate means of pursuing their respective goals. The Provisional Irish Republican Army ("IRA") of which Smyth reputedly is a member, has publicly announced that the British Army and persons who work for the Army are targets. The district court found that IRA activity has accounted for most of the political violence the country has endured in recent years: "[g]overnment sources estimate that 97% of the 1,726 bombings and two-thirds of the shootings relating to the political violence in Northern Ireland were done by Republican terrorists in the 1987-1992 period."

Beginning in the early 1970s, the government of the United Kingdom determined that a state of emergency existed in Northern Ireland and enacted extensive emergency provisions. Abbreviated trial procedures, including elimination of the right to a jury trial, were authorized and instituted following the report of Lord Diplock that fewer protections for defendants' rights were justified to deal with terrorist activities in Northern Ireland. The Diplock Commission's recommendations were "incorporated wholesale into the Emergency Provisions Act of 1973." Note, Just Say No! United States Options to Extradition to the North of Ireland's Diplock Court System, 12 Loy.L.A. Int'l & Comp.L.J. 249, 257 (1989). These provisions have been amended and reenacted in subsequent legislation and are still in force in Northern Ireland today. Id. at 257-258.

The district court found that these provisions include the grant of authority to security forces to detain persons for questioning without reasonable suspicion of criminal activity. Longer internments may be authorized for persons suspected of commission of terrorist activity. Membership in either Loyalist or Republican paramilitary organizations, such as the IRA, is a crime. The Emergency Provisions Act has enabled courts in Northern Ireland to weaken the procedural safeguards that guarantee a "fair trial" in most common law jurisdictions and thus derogate from the minimum standards established under the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221. See Just Say No, supra, at 258-267.

If this were a traditional extradition, we likely would not concern ourselves with the operation of the justice system in Northern Ireland. The long-standing "rule of noninquiry" has traditionally circumscribed the breadth of a court's inquiry into such matters. Under that doctrine, "[a]n extraditing court will generally not inquire into the procedures or treatment which await a surrendered fugitive in the requesting country." Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir.1983). Undergirding this principle is the notion that courts are ill-equipped as institutions and ill-advised as a matter of separation of powers and foreign relations policy to make inquiries into and pronouncements about the workings of foreign countries' justice systems. See Michael P. Scharf, Foreign Courts on Trial: Why U.S. Courts Should Avoid Applying the Inquiry Provision of the Supplementary U.S.-U.K. Extradition Treaty, 25 Stan.J.Int'l L. 257, 269 (1988). ("[T]he State Department is in a superior position to consider the consequences of a nonextradition decision upon foreign relations than the courts and it has diplomatic tools, not available to the judiciary, which it...