treatment must be personal to the individual opposing extradition.
Senators Kerry, Biden and Eagleton made extensive comments regarding the interpretation of Article 3(a). Senators Kerry and Biden appear to view Article 3(a) as expanding the role of inquiry of the United States courts into the fairness of the requesting court's judicial systems. Senator Eagleton, the principle drafter of Article 3(a), emphasized, however, that "Article 3(a) is not intended to give courts authority generally to critique the abstract fairness of the foreign judicial systems." 132 Cong. Rec. 16,607.
Both the plain language of the provision and the historical background of the Treaty weigh against Mr. Smyth's expansive interpretation of Article 3(a). The Supplemental Treaty was negotiated and ratified in order to facilitate the extradition of persons committing terrorist violence in Northern Ireland. At the time the Supplemental Treaty was negotiated, there was considerable concern about the implementation of justice in the Diplock courts. Congress eliminated the political exception to extradition for specific categories of terrorist activities in Article 1 of the treaty. Article 3(a) must be interpreted in a manner consistent with the structure of the Supplemental Treaty. It is therefore reasonable and logical to infer that Congress did not intend to abandon the traditional rule of non-inquiry with respect to the United Kingdom and the Diplock courts through Article 3(a). Article 3(a) gives the person sought an opportunity to show by a preponderance of the evidence that he as an individual would suffer discrimination in the trial, or in the implementation of punishment, on account of race, religion, national origin or political views, and thus answers the Senate's concern about completely eliminating the political exception to extradition.
C. Specific Evidentiary Considerations
The court rules as follows on specific proffers of evidence by the parties:
1. Evidence Relating to Pre-Arrest Activities
Mr. Smyth has indicated that he intends to introduce evidence of alleged pre-arrest maltreatment he received at the hands of the "security force" prior to his arrest for the attempted murder of Mr. Carlisle. The government objects to the introduction of such evidence as irrelevant to the issues of Mr. Smyth's treatment during his trial and subsequent internment in the Maze. The court views such evidence as relevant background evidence which may tend to show a pattern of discriminatory treatment aimed specifically at Mr. Smyth. Accordingly, such evidence will be admissible.
2. Alleged Unfairness of the Diplock Court System
Mr. Smyth will not be allowed to introduce evidence regarding the alleged general unfairness of the Diplock Court System. This case differs from most extradition proceedings in that Mr. Smyth has already been convicted in the courts of the requesting country. The United Kingdom seeks Mr. Smyth's extradition so that he may complete the prison term he was serving when he escaped from the Maze prison. While Mr. Smyth is precluded from challenging the general fairness of the Diplock system, he may, nonetheless, present evidence regarding irregularities in his specific trial under the Diplock system upon a showing that the irregularities resulted from discrimination on the bases of religion, nationality or political views.
Mr. Smyth has taken issue with the following statement in the government's opening brief regarding the scope issues:
We agree that Article 3(a) entitles Smyth to attempt to meet his burden by proving particular occurrences of religious or political discrimination that caused him actual prejudice related to this extradition request. That is, we agree that he is entitled to attempt to show that religious or political discrimination resulted in a conviction that, but for that impermissible discrimination, would not have occurred.