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IN RE REQUESTED EXTRADITION OF KEVIN BARRY JOHN AR

August 11, 1997

In the Matter of the Requested Extradition of KEVIN BARRY JOHN ARTT, In the Matter of the Requested Extradition of POL BRENNAN; In the Matter of the Requested Extradition of TERENCE DAMIEN KIRBY,


The opinion of the court was delivered by: LEGGE

 OVERVIEW

 HISTORICAL CONTEXT

 INTERPRETATION OF THE SUPPLEMENTARY TREATY

 THIS COURT'S DEFINITION OF THE TRIABLE ISSUES

 APPLICATION OF THE MAIN TREATY TO RESPONDENT BRENNAN

 THE TWO DEFENSES UNDER ARTICLE 3(a)

 ALLEGED TRUMPED UP CHARGES

 1. The Voluntariness of Respondents' Confessions

 2. The Convictions of Respondent Kirby

 3. The Conviction of Respondent Artt

 
(a) The hearing on Artt's confession
 
(b) Claim of innocence
 
(c) Trial
 
(d) Pre-arrest events

 THE SPECIAL DEFENSE OF RESPONDENT BRENNAN

 FUTURE TREATMENT OF RESPONDENTS IN NORTHERN IRELAND

 1. Maze Prison

 2. Conditions After Respondents' Release From Prison

 
(a) Alleged collusion
 
(b) Belfast generally

 CONCLUSIONS

 OVERVIEW

 The United Kingdom seeks the extradition of respondents Kevin Artt, Pol Brennan, and Terence Kirby. The respondents were separately convicted in courts of the United Kingdom in Northern Ireland for offenses of violence. They were then confined in the Maze Prison in Belfast, Northern Ireland. They escaped from the Maze Prison and managed to come to the United States. They lived in the United States under assumed names for several years, until their apprehension by United States law enforcement agencies.

 The United Kingdom seeks the extradition of respondents under the treaties between the United States and the United Kingdom, specifically the Supplementary Treaty of 1985. *fn1"

 This court held on September 25, 1996 that the United Kingdom had established the prerequisites to the jurisdiction of this court and to the extradition of respondents, under Article 2 of the Supplementary Treaty. The United Kingdom established that there is probable cause for their extradition; that is, respondents are the persons sought by the United Kingdom, and they were convicted of crimes in the United Kingdom. Appropriate certificates of respondents' convictions in Northern Ireland, and judicial records in support of the certificates, were filed with this court. The convictions upon which the requests for respondents' extradition are based would constitute offenses punishable under the laws of the United States.

 Respondents oppose extradition by invoking their rights under Article 3(a) of the 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 to 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.

 (Emphasis added.)

 This court has jurisdiction under Articles 2 and 3 of the Supplementary Treaty, and under 18 U.S.C. Section 3184.

 Numerous pre-trial motions were made, heard, and resolved by this court. The court allowed respondents to have discovery, including discovery of witnesses and records in Northern Ireland. The court then conducted a trial on the defenses raised by respondents. The trial was before this court sitting without a jury. The court heard the testimony of the witnesses, including live testimony, written depositions, and video depositions, and reviewed voluminous exhibits received into evidence. *fn2" The court also received briefs from the parties and heard arguments of law and fact. The issues have been submitted to the court for decision.

 HISTORICAL CONTEXT

 The historical context in which these cases arose in Northern Ireland is a tragedy -- of history, of politics and of religion. The tragic consequences of that history are apparent in our daily newspapers, and are apparent in the evidence presented in these cases. This court has no power to change that history. And it would be presumptuous of this judicial officer to criticize the history of another country. This court must therefore limit itself to proper decisions of law and fact on the issues presented to its jurisdiction, rather than pass judgments on the forces of history. But some discussion of the present context of Northern Ireland, at least for the last twenty years -- the time frame in which the events in these cases occurred -- is necessary to the court's decision:

 Although there are people of reason and good faith on both sides, the present circumstances are driven by the extremists on each side. On one side is the Catholic-Nationalist-Republican community. Very broadly speaking, that community seeks to have Northern Ireland become a part of the Republic of Ireland, and seeks to have the United Kingdom withdraw. Some condone violence to that and, including murder and destruction of property. This is the announced objective of the Irish Republican Army (IRA). On the other side is the Protestant-Loyalist community. Again very broadly speaking, that community resists the unification of Northern Ireland with the Republic of Ireland, and to a greater or lesser degree wishes the United Kingdom to maintain a presence. There are also members of that community who condone murder and destruction of property in support of their aims, identified generally as "loyalist paramilitary groups."

 Those are of course the extremists. The vast majority of the residents of Northern Ireland, members of both religious and political communities, undoubtedly wish to pursue their lives in peace, to participate in the growing economic prosperity of Ireland, and to use only lawful and democratic means to achieve change. But the extremes have set the agenda.

 These divisions have been particularly acute in Belfast. The city map is a patchwork of Catholic areas, Protestant areas, and a few mixed or neutral areas.

 In between the extremist factions is the Royal Ulster Constabulary (RUC), the police force in Northern Ireland. It is charged, as is any police force, with keeping law and order. But its problems in performing that charge have been greatly multiplied by the violence between the extreme factions. The RUC has also had problems of its own. In part because its membership is predominantly Protestant, it has been viewed by some of the Catholic community as being a force for oppression rather than a force for the keeping of peace. And its officers have been subjected to direct and violent attacks by the extremists on both sides.

 By 1969 the warring factions could not be controlled by the RUC, either because of the limited size and resources of that force, or because of the magnitude of the violence. The British Army was then brought into Northern Ireland to assist in keeping peace. Indeed, the army was at first viewed as a peace-keeper. But over time, the Catholic community began to view the British Army as another tool of repression. The violence continued -- indeed, escalated -- and was directed against the army also. At times the violence bordered on outright civil war, with the Catholic-Republican-Nationalists and the Protestant-Loyalists extremes on each side, and the army and the RUC somewhere in the middle -- but viewed by both sides with suspicion. The circumstances lead to daily fear and suffering. The court heard extensive testimony about routine stops of cars and persons, beatings, incarcerations, and invasions of homes for searches, with no protections akin to the Fourth Amendment of our constitution. But the results of that suffering were by no means one-sided. For each story of tragedy to a Catholic-Republican-Nationalist family there is a story of tragedy to a Protestant-Loyalist family. And the innocent majority of peaceful Belfast residents have also suffered death and destruction.

 What is the role of the criminal justice system in all of that? During the heights of the violence, suspected persons were simply interned by the army and kept in camps similar to prisoner of war camps. The potentials for injustice in that internment system were obvious, where persons were kept for indefinite periods of time without evidence of the actual commission of crimes and without charges being brought against them.

 The anti-terrorism statutes passed by Parliament and the so-called Diplock courts were in response to those conditions and to that injustice. They were an attempt to protect the general population, to provide some civil rights to the accuseds, and at the same time to try and punish the terrorists on both sides. The system does not have all of the individual protections which we are used to under the American system of criminal justice. But it is a genuine attempt to deal with a virtually war-like setting, to protect the general population, and to provide some measure of civil liberties to the accuseds. The court notes that even President Abraham Lincoln suspended habeas corpus during the American Civil War. See Bridges v. United States, 184 F.2d 881, 886-87 (9th Cir. 1950); Gun South, Inc. v. Brady, 711 F. Supp. 1054, 1061 (N.D. Ala. 1989).

 Because the Diplock trial procedures are an expedited system, without the full spectrum of civil rights protections, they have obviously been viewed with suspicion by those caught up in the processes. But it is apparent from the evidence that the justice system has attempted to function even-handedly. It has administered the same laws and procedures to the Catholic-Republican-Nationalist extremists and to the Protestant-Loyalist extremists. Prisons in Northern Ireland are filled with both.

 That is the context in which these respondents were convicted, and from which these extradition proceedings arise. As stated, this court cannot change history and cannot solve the underlying problems of Northern Ireland. But giving convicted terrorists, either Catholic-Republican-Nationalists or Protestant-Loyalists, a safe haven in the United States will not solve the problems either. So this court must focus on these respondents and on this treaty, and it must weigh the evidence and apply the law -- performing the historical functions of the judicial branch of government.

 In that regard, Northern Ireland's history has had another perverse effect on the administration of justice. That is, terrorists attempt to justify their conduct and escape its consequences, merely because they committed the violence in the name of a cause they believe to be right. But terrorists should not be sheltered from the criminal consequences of their acts just because their acts were committed in the name of a political or religious cause. Because a terrorist commits a crime of violence in support of a cause does not mean that the terrorist, when caught and convicted, is being punished because of that cause. Terrorists must accept the consequences of their criminal acts, regardless of the name in which they were performed. Indeed, that was one of the reasons for the enactment and passage of the Supplementary Treaty.

 While Article 3(a) of the Supplementary Treaty shelters respondents from prosecution because of their religious and political beliefs, it does not shelter them from prosecution for their criminal conduct just because they have those beliefs. That distinction was noted by the Ninth Circuit in In re Requested Extradition of Smyth, 61 F.3d 711, 720 (9th Cir. 1995) at 720-21. That is, in order to avoid extradition under the treaty, respondents must show that their punishment is because of their race, religion, nationality, or politics, and not because of their criminal acts. That distinction has its genesis in Article 3(a) itself, which contains the causation requirements of "on account of" and "by reason of" those protected factors.

 INTERPRETATION OF THE SUPPLEMENTARY TREATY

 The Supplementary Treaty and extradition proceedings under it were interpreted by the United States Court of Appeals for the Ninth Circuit in In re Smyth, Id. Respondent Smyth was convicted in Northern Ireland, was a prisoner in the Maze Prison, and escaped at the same time as the three respondents now before this court. The Smyth court made holdings and statements about the treaty and proceedings under it which are important in the present case.

 First, conditions in Northern Ireland, however chaotic, do not preclude extradition. Article 3(a) does not prevent extradition because of general political or violent conditions in Northern Ireland; rather, the inquiries must be individualized to these respondents. And any alleged adverse consequences to them upon their return to Northern Ireland must be acts of the criminal justice system and not of society generally. Id. at 715.

 
... Article 3(a) must mean that a federal court in an extradition proceeding may look to the treatment that likely will be accorded the extraditee upon the charge for which extradition is sought. This inquiry need not necessarily be limited to the prosecution and formal term of imprisonment, but Article 3(a) does not permit denial of extradition on the basis of an inquiry into the general political conditions extant in Northern Ireland. The history of the provision shows that it requires an individualized inquiry.
 
Accordingly, in order to defeat extradition on the basis of his prospective treatment at the hands of the justice system extending beyond the duration of his formal imprisonment term, [respondent] would have to demonstrate by a preponderance of the evidence that the criminal justice system in Northern Ireland likely would exact additional retribution for his crime beyond the remaining term of imprisonment, and that such additional punishment would be inflicted on account of [respondent's] political or religious beliefs, and not on account of his having [committed a crime].

 Id. at 720 (emphasis added).

 Second, the Smyth opinion discussed the history and the objectives of the Supplementary Treaty. That discussion need not be repeated in detail here, but rather the reader is referred to Smyth, Id. at 713-16. The opinion expressly states that the Article 3(a) defense is not a mere restatement of the prior "political" defense to extradition. Rather, it is a new inquiry. The Article 3(a) defense focuses on the treatment which the respondents will likely receive at the hands of the United Kingdom's criminal justice system. Id. at 715.

 Third, the court affirmed the language of Article 3(a) that the burden of proof is on each respondent to establish, by a preponderance of the evidence, that the defense of Article 3(a) applies to him. Id. at 715-16.

 Fourth, the court drew the following distinction which is important to the application of Article 3(a) here:

 
Article 3(a) requires that the person sought establish by a "preponderance of the evidence" one of two situations. Under the first clause of the defense, the extraditee may show that the request for extradition has in fact been made with the purpose of trying or punishing him on account of racial, religious or political factors. ....In the alternative, he must establish that if surrendered, he will 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).
 
Article 3(a).... does not authorize denial of extradition on account of the punishment, official or unofficial, that will be imposed for the underlying criminal act....

 The inquiry under the treaty must therefore distinguish between punishment for religious and political reasons, which would bar extradition, and punishment for a ...


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