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IN RE REQUESTED EXTRADITION OF JAMES JOSEPH SMYTH

May 6, 1993

IN THE MATTER OF THE REQUESTED EXTRADITION OF JAMES JOSEPH SMYTH


The opinion of the court was delivered by: BARBARA A. CAULFIELD

 On September 14, 1992, the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for a 1978 conviction in Belfast, Northern Ireland. *fn1" Smyth has indicated that he will raise a defense to extradition pursuant to Article 3(a) of the Supplemental Extradition Treaty between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, which went into effect on December 23, 1986 ("Supplemental Treaty").

 As of this date, no United States court has addressed the issue of whether Article 3(a) may prevent the extradition of an alleged IRA fugitive to Northern Ireland. Article 3(a) has been addressed in only three published opinions besides the two in this matter. *fn2" Commentators and courts addressing the interpretation of Article 3(a) have noted the contradictory interpretations the provision invokes. In an attempt to clarify the scope of Smyth's extradition hearing, the court requested briefs addressing the issues and evidentiary proffers under Article 3(a). The purpose of this order is to outline the court's rulings regarding the permissible scope of evidence to be introduced during trial.

 A. The Supplemental Treaty

 The Supplemental Treaty was proposed by President Reagan in an attempt to address the growing tide of international terrorism by excluding from the scope of the political offense exception certain violent offenses typically committed by terrorists. *fn3" Article 1 of the Supplemental Treaty was designed to eliminate the political offense exception for individuals accused of one of the enumerated offenses. McMullen v. United States, 953 F.2d at 761. The Reagan Administration's goals in submitting the Supplemental Treaty are reflected in Article 1, which reads:

 
(1) Amend article 1 to read as follows:
 
"For the purpose of the Extradition Treaty, none of the following shall be regarded as an offense of a political character:
 
(a) an offense for which both Contracting Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit his case to their competent authorities for decision as to prosecution;
 
(b) murder, voluntary manslaughter, and assault causing grievous bodily harm;
 
(c) kidnapping, abduction, or serious unlawful detention, including taking a hostage;
 
(d) an offense involving the use of a bomb, grenade, rocket, firearm, letter or parcel bomb, or any incendiary device if this use endangers any person; and
 
(e) an attempt to commit any of the foregoing offenses or participation as an accomplice of a person who commits or attempts to commit such an offense.

 It is undisputed that Smyth's conviction for attempted murder of a prison guard precludes him from asserting the "political offense" defense to a request for extradition. Mr. Smyth nonetheless attempts to avoid extradition by asserting Article 3(a) of the Supplemental Treaty, which provides:

 
Notwithstanding any other provision of this Supplemental 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, ...

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