explaining that “[i]t would make little sense for us to ignore the factual findings of the judicial tribunal that made the initial factual determinations and defer, instead, to the differing factual findings made by a [later] tribunal that merely reviewed the record of the earlier proceedings”
How later courts described this case
- explaining that “[i]t would make little sense for us to ignore the factual findings of the judicial tribunal that made the initial factual determinations and defer, instead, to the differing factual findings made by a [later] tribunal that merely reviewed the record of the earlier proceedings”
- concluding that “the political offense question is reviewable on habeas corpus as part of the question of whether the offense charged is within the treaty.”
- stating that the determination of probable cause “must be 11 upheld if there is any competent evidence in the record to support it.”
- rejecting argument that judiciary should not decide whether political offense objection applies because "different pronouncements from the executive and judiciary ... could embarrass the government ...”
Written by the judges who cited it.
Later courts went against this
Criticized by In re the Extradition of Mujagic, 990 F. Supp. 2d 207 (2013)
” Quinn, 783 F.2d at 804-05. Quinn, however, has been roundly criticized by other courts.
The opinion
FLETCHER, Circuit Judge,
concurring and dissenting:
I respectfully dissent from my colleagues’ conclusion that Quinn may now be extradited on the murder charge. The decision facing this court is excruciatingly difficult. Quinn is accused of hideous crimes — violent and cruel and some of them cowardly. Innocent victims were targeted for receipt of letter bombs mailed anonymously. A decision that the full force of the law should not be invoked to punish persons found guilty of such acts seems inconceivable. However, the political offense exception to the treaty of extradition has a long history of protecting persons rebelling against their governments.
This longstanding tradition among western nations is an acknowledgment of the right of the governed to oppose unjust governments. Although the nations, ours included, have acknowledged the heinous nature of violent political crimes, they have nonetheless, under treaties and statutes, denied extradition when an individual’s conduct falls within the narrow exception for the “political offense.”
I find that I can concur in much of Judge Reinhardt’s opinion. In part I, Judge Reinhardt simply and eloquently outlines the facts and the difficult dilemma that confronts us. In Part II he rightly concludes that the determination as to what constitutes a political offense within the meaning of the treaty and the statute is a task for the court. I also agree with his discussion of the standard of review to be applied by both the district court and our court.
In Part IV, Judge Reinhardt ably documents the evolution of the political offense exception, paying particular attention to the development of the incidence test in the United States. His description of the conflicting approaches token by various United States courts grappling with issues similar to ours highlights the difficult nature of our charge. In Part V, I wholly agree with his condemnation of international terrorism and his conclusion that acts of international terrorism not be protected under the political offense exception. I believe, as does Judge Reinhardt, that the traditional incidence test applied by courts of this country since the 1800’s accommodates the exclusion of acts of international terrorism from protection. The new limitations imposed by the courts in Eain v. Wilkes and In re Doherty unnecessarily break from the traditional test by inquiring into and evaluating the legitimacy of given political objectives and the conduct of internal political struggles. The political offense exception should be applied in an ideologically neutral fashion; it is neither *820 necessary nor appropriate for courts to balance policy considerations. I believe the Seventh Circuit in Eain improperly rested its decision on its conclusion that only organized forms of aggression are afforded protection under the political offense exception and on its distinction between attacks on military and civilian targets. These limitations run counter to the reasons that originally supported creation of the political offense exception. I agree with Judge Reinhardt that the incidence test neither requires proof of membership in an uprising group nor recognizes a distinction between attacks on military and civilian targets. For these reasons I join Judge Reinhardt in rejecting the Eain test.
I concur in Judge Reinhardt’s conclusion in Part VI that if an uprising existed at the time the offenses were committed, the bombings and the Tibbie murder were incident to that uprising. I disagree, however, with his further conclusion that because the level of violence in Northern Ireland far exceeded that in England, the uprising did not extend to England.
I find persuasive the magistrate’s and district court’s findings that a severe political uprising existed in the United Kingdom, including England, at the time the acts of which Quinn is accused took place. The magistrate recognized the constitutional unity of Northern Ireland and Great Britain, and noted the numerous violent incidents that occurred in areas outside Northern Ireland, particularly in and around London. I cannot agree with Judge Reinhardt’s conclusion that when PIRA members revolt against their British rulers in Northern Ireland, such acts are protected under the political offense exception, whereas the identical violent acts carried out against the same British rulers in London lose their protected status.
I disagree that this interpretation of the “uprising” component of the political offense exception sanctions previously extraditable violent acts. Judge Reinhardt is rightly concerned that “uprising” not encompass “terrorism or other criminal conduct exported to other locations.” I share his concern. But in my view, the acts of Irish nationalists against the British in London are not international “terrorism or other criminal conduct exported to other locations.” The longstanding ties between England and Northern Ireland, which Judge Reinhardt acknowledges are “well established,” cannot be avoided or ignored. Although Northern Ireland may have been “separated” from Great Britain by treaty when the Irish Free State was created, it remained a part of the United Kingdom with representation in the British Parliament and it has been occupied by British troops lo these many years. The acts of terrorism in England by members of the PIRA can hardly be termed acts of international terrorism.
The magistrate in another extradition case involving a PIRA member charged with bombing a British military barracks in England reached this same conclusion. McMullen was found not extraditable because his acts fell within the political offense exception. See In re McMullen, No. 3-78-1899 MG (N.D.Cal. May 11, 1979), reprinted in Extradition Act of 1981: Hearings on S. 1639 Before the Senate Comm, on the Judiciary, 97th Cong., 1st Sess. 294, 294-96 (1981). I likewise conclude that Quinn’s actions in London were part of an overall uprising in Northern Ireland and England.
Given my conclusion that the offenses of which Quinn is accused are protected under the political offense exception, I must address whether this protection extends to one who, like Quinn, is a citizen of a different nation from that in which the uprising is occurring. I do not believe that mercenaries or volunteers in a foreign conflict can claim protection under the political offense exception. I deduce from Judge Reinhardt’s views on international terrorism that he would agree. To be entitled to protection, an individual would have to demonstrate tangible and substantial connections with the country in which an uprising occurs. It could be short of citizenship, but there must be a showing of substantial connection — for example, that he *821 or she had lived in the country or territory and planned to continue to live there under a changed regime.
In Quinn’s case, we lack sufficient information with which to make any such evaluation. We know that Quinn is a United States citizen, and that he resided in San Francisco during the years immediately preceding his arrest. In an Order Denying Bail, the magistrate noted Quinn’s
long standing family roots and ties in this [San Francisco] local community. He has a father and uncles and aunts here, he was educated here, and was employed in a family business at the time of his arrest. Except for a sojourn abroad, during which the alleged events occurred which resulted in the charges filed in the United Kingdom, he has for the most part resided in this community.
Because we do not know the extent of Quinn’s ties to Northern Ireland, I would remand the case for an initial determination by the district court as to whether Quinn should be treated as an Irish national and afforded the protection of the political offense exception. Accordingly, I dissent from the holding that Quinn may now be extradited on the murder charge.
I agree with my colleagues that Quinn may not be extradited on the conspiracy charge at least until after the district court considers the question of the statute of limitations. However, I believe that the district court should not be required to reach that question unless it first concludes that Quinn’s ties to Northern Ireland were insufficient to invoke the protection of the political offense exception. For the reasons I have explained, I concur in the holding remanding the conspiracy count.