Vol. 11 No. 5 (May 2001) pp. 223-225.

EXTRADITION, POLITICS AND HUMAN RIGHTS by Christopher H. Pyle. Philadelphia: Temple University Press, 2001. 464 pp. Cloth $89.50. ISBN: 1-56639-822-3.Paper $29.95. ISBN: 1-56639-823-1.

Reviewed by Gary Botting, Faculty of Law, University of British Columbia; Visiting Scholar, University of Washington School of Law. Website: www.garybotting.com.

The conflict between executive and judicial discretion is nowhere more obvious than in the area of extradition law, where individual rights are routinely suspended in favor of "international obligations" established by treaty. As Christopher Pyle ably demonstrates in case after case, unwarranted faith in the legal protections provided by requesting states is a legal fiction that in its very expression tends to bring the administration of justice into disrepute. A teacher of law and politics, Pyle became involved as a witness in congressional hearings in opposition to the Reagan administration's attempts to strip judges of their power to protect political refugees from foreign injustice. He has translated these concerns into a readable, at times gripping, account of the history of extradition in America over the past two centuries. Rather than following the usual staid formula for legal scholarship, he has focused in depth on individual cases.

In the name of efficiency, the Department of Justice, in concert with the Department of State, is committed to advancing requests for extradition from all manner of countries with which treaties have been concluded. The existence of an extradition treaty triggers in the courts a presumption that the extradition partner has in place a system of justice that incorporates legal rights such as a fair trial. The courts have consistently adopted a pattern of non-inquiry into this issue. Furthermore, the courts are obliged to accept virtually any evidence of criminality provided by the requesting state at face value-even though the evidence is usually presented in the form of unchallengeable affidavits that would not be accepted as valid on their face in criminal proceedings in the U. S. On the other hand, the individual caught up in the machinery of extradition cannot adduce evidence even to prove an alibi, for the weighing of exculpatory evidence, say the U. S. extradition courts, is a matter for the trial judge in the receiving jurisdiction to decide. The fact that the receiving jurisdiction may have no interest in fairness or justice is for neither the executive nor the extradition judge to determine once a treaty is in place.

'Twas ever thus. At the end of the eighteenth century, a seaman named Jonathan Robbins, also known as Thomas Nash, was arrested in South Carolina after bragging about his escapades aboard the HERMIONE, a British ship whose crew had mutinied, killing some of the officers. U. S. Secretary of State Thomas Pickering suggested to President John Adams that he turn Robbins over to the British Navy pursuant to the terms of the Jay Treaty. Robbins protested his innocence, saying that he was an American who had been impressed into service aboard the HERMIONE against his will, and therefore had a right, if not an obligation, to escape.

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Nonetheless, Adams sent a directive to Judge Thomas Bee advising the court to hand over the sailor to British justice. The British Navy took Robbins to Jamaica, where he was summarily "tried," hanged and gibbeted as an example to other would-be mutineers. Despite Congressman John Marshall's brilliant defense of President Adams' right to use executive discretion in extradition matters, in the 1801 election, Thomas Jefferson's cronies in Congress and in the Jeffersonian press managed to make good mileage on this politically sensitive issue,. Adams rewarded Marshall by successive appointments first as Secretary of State and later, in a final executive act by the beleaguered president, to Chief Justice of the U. S. Supreme Court. However, never again was the Jay Treaty used for an extradition.

The Robbins case provided not only a backdrop but also a litmus test for the many controversial cases that were to follow. It is ironic that Adams' son, John Quincy Adams, by then himself a former U. S. Secretary of State and President, should have become embroiled in the notorious AMISTAD case in 1839-this time coming to the defense of the African captives of Spanish slave traders. The Africans had overrun the crew of the ship in a bid to seek freedom and return to their native Africa. "[For the executive] to seize any man, black or white, slave or free, who may be claimed to be a slave, and send him beyond seas for any purposes," John Quincy Adams said, ". would [assume] control over the judiciary by the President, which would overthrow the whole fabric of the constitution" (p. 48). The Adams family had learned its lesson well.

Pyle's documentation of the whittling away of the political offence exception to extradition is particularly compelling. Early in the twentieth century, American law took a relaxed view, applying the exception to protect participants in political movements and armed uprising alike, whether organized or otherwise. With the Cold War, the State Department tended to distinguish between "freedom fighters" who fought against the incursion of communism, and "terrorists" who rebelled against the often fascist regimes supported by the U. S. "As counsel for the requesting regimes . U. S. attorney and Justice Department officials could camouflage their strategy behind a seemingly neutral facade of legal representation, and behind the facade, manipulate, coordinate, and control the cases to serve their policy ends" (p. 146).

The raft of IRA cases in the 1970s and 1980s, beginning with Peter McMullen and culminating with Joseph Doherty, did most to undermine the political offence exception. The U. S. judiciary, with its abiding respect for the British judicial system, was willfully blind to the fact that Catholic population in Northern Ireland had grown up in a climate of persecution fed by the pro-Protestant British military machine, and that the IRA was therefore a genuine political force rather than merely "criminal". The exception was further undermined by the adoption of a policy of zero tolerance of hijacking that amounted to a fettering of judicial and executive discretion. In 1978, Hans Tiede and Ingrid Ruske, accompanied by Ruske's 12- year-old daughter Sabine, hijacked a plane to the American Sector of West Berlin in the course of evading the secret police, who had already arrested Ms. Ruske's husband. The U. S. government denied the alleged hijackers the benefit of due process under the U. S. Constitution and attempted to dismiss Judge Herbert Stern when he insisted that constitutional rights did apply. The State Department attorney informed Stern that Secretary of State Cyrus

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Vance, through his deputy Warren Christopher, had "dictated for this court" a set of rules that Stern was expected to follow (p. 189). Judge Stern refused to engage in what he called a "fraud upon the court" which would have turned his courtroom into a "charade" (p. 190), and refused to hand Tiede over to the State Department: "You have persuaded me that you recognize no limitations of due process.. Viewing the Constitution as non- existent, considering yourselves not restrained in any way, who will stand between you and him?" (p. 191).

The same question could be asked of the Office of Special Investigations that led to the hasty extradition to Yugoslavia of Andrija Artukovic, the former Croatian minister of interior affairs, who stood accused of ordering four separate killings of Partisans in 1941. After his surrender to Yugoslavia, he received a summary trial in which he was not allowed to present rebuttal evidence, and in1986 was sentenced to death by firing squad after being found guilty not only of the four offences that were the subject of his extradition but also of ordering "the persecution, torture and murders of . hundreds of thousands of Jews, Serbs, Croats and Gypsies, many of them women and children"-a startling breach of the rule of speciality, which limits trial to the charges allowed under the extradition proceeding (p. 233). After Artukovic died in custody, the legal advisor to the Yugoslav Foreign Ministry concluded in a four-volume study that, "Andrija Artukovic was sentenced for crimes which never took place" (p. 233). Pyle concludes: "In their zeal, attorneys for the U. S. Department of Justice came to resemble the very fascists they sought to condemn, while enabling communists guilty of comparable atrocities to commit still further injustices, all in the name of justice" (p. 234).

Misplaced zeal, withholding of evidence, and political pressure led directly to the extradition of Ivan Demjanjuk, a retired Ford Motor Company mechanic, in the belief that he might be "Ivan the Terrible" of Treblinka infamy. In fact the OSI had ample evidence from the outset that the real "Ivan the Terrible" was Ivan Marchenko. This evidence was suppressed for years while the innocent Demjanjuk fought for his life, incarcerated first in the U. S. and later in Israeli prisons. Completely forgotten was the principle that Justice Department lawyers are supposed to be neutral officers of the court. Says Pyle, "The lessons to be drawn from the Demjanjuk case are too obvious to dwell on at length. First, and most obvious, is the danger of allowing the Justice Department to represent foreign regimes in extradition cases. The role almost inevitably leads to conflicts of national interest that corrupt prosecutorial and judicial integrity" (p. 261).

Pyle's most important contribution to scholarship is his final chapter, "Rethinking Extradition," in which he proposes logical legislative changes that would accord an extraditable accused the same rights as ordinary criminals, would allow the courts to receive exculpatory evidence from the accused, and would allow judges to inquire into the treatment an extradited person is likely to face once returned to the requesting country. Given the fact that the individual is not likely to receive bail in the receiving jurisdiction, let alone a fair trial, procedural fairness in American courts is surely not too much to ask.