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MATTER OF EXTRADITION OF MCMULLEN

July 17, 1991

IN THE MATTER OF THE REQUEST FOR EXTRADITION OF PETER GABRIEL JOHN MCMULLEN BY THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND.


The opinion of the court was delivered by: Robert J. Ward, District Judge.

    OPINION

Peter Gabriel John McMullen ("McMullen") has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 1651 and 2241. McMullen claims that the Government's attempt to extradite him pursuant to the Extradition Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21, 1977) (the "1977 Treaty"), and the Supplementary Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland (effective December 23, 1986) (the "Supplementary Treaty"), violates his constitutional rights. For the reasons that follow, the petition is granted.

BACKGROUND

In the instant case, the Court is required to decide whether the Government constitutionally may attempt to extradite McMullen under an amended extradition treaty which removes a defense to extradition successfully asserted by him in a previous extradition proceeding brought pursuant to the prior treaty. The case, which presents several constitutional issues of first impression, comes to the Court in an unusual procedural posture.

Since December 1986, McMullen has been detained pending a hearing on a request for his extradition by the Government of the United Kingdom of Great Britain and Northern Ireland (the "United Kingdom"). The Request for Extradition was originally assigned to this Court. By Order dated February 11, 1987, the Request for Extradition of McMullen was referred for all further proceedings to Magistrate Judge Kathleen Anne Roberts, in accordance with 18 U.S.C. § 3184.

On March 6, 1989, McMullen moved before Magistrate Judge Roberts to dismiss the extradition request on constitutional grounds. The motion was fully and extensively briefed by the parties. Neither party raised the question of the Magistrate Judge's jurisdiction to rule upon the constitutional questions presented by McMullen's motion. However, Magistrate Judge Roberts then raised the issue of her jurisdiction, sua sponte, and requested submissions from the parties.

After a review of the applicable case law, petitioner determined that the Magistrate Judge did not have jurisdiction to decide the issues raised in his motion to dismiss. He then brought the instant petition for habeas corpus, arguing that this Court should hear the case, although the extradition hearing has not yet occurred, because of the unusual circumstances. Following a conference before the Court, the parties stipulated that this Court would decide the issues raised in the petition, in order to promote a timely resolution of the case. The Court agreed that such was an appropriate course in light of the unusual circumstances,*fn1 and "So Ordered" the stipulation on October 25, 1990.*fn2

McMullen entered this country illegally in early 1978, using a false identity and passport. He claims to have done so in order to escape a death sentence levied upon him by the Provisional Irish Republican Army (the "PIRA"), of which he had previously been a member but then had resigned based upon his disagreement with its leaders. Once in the United States, McMullen contacted agents from the Bureau of Alcohol, Tobacco and Firearms (the "BATF") with the goal of attempting to legalize his status in exchange for information on IRA activities in the U.S. and abroad. In July 1978, after a series of negotiations with agents from the BATF as well as the FBI and New Scotland Yard ("NSY"), McMullen was informed that he would not be granted asylum and thereafter the United States filed an extradition request on behalf of the United Kingdom.*fn3

On May 11, 1979, the Honorable Frederick J. Woelflen, a United States Magistrate in the Northern District of California, denied the Government's request to extradite McMullen to Great Britain. After holding a hearing, Magistrate Woelflen determined that McMullen's alleged offense was encompassed by the "political offense exception" set forth in Article V(1)(c)(i) of the 1977 Treaty.*fn4 In his decision, the Magistrate found that McMullen "ha[d] established by evidence, which we most [sic] conclude as preponderating that the act of bombing the Claro Barracks was political in character," and that an uprising of a political nature existed in Northern Ireland at the time of the bombings. Accordingly the Magistrate held that McMullen was not extraditable under the provisions of the extradition treaty then in force between the United States and the United Kingdom.

Following the denial of the original extradition request, an attempt was made to deport McMullen to the Republic of Ireland. McMullen conceded deportability, but requested political assylum in the United States or withholding of deportation to the Republic of Ireland. After several years of litigation, see Matter of McMullen, Interim Decision 2831 (B.I.A. 1980); McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981), these requests were ultimately denied and a final order of deportation was upheld by the Court of Appeals for the Ninth Circuit in August 1986. McMullen v. INS, 788 F.2d 591 (9th Cir. 1986). McMullen was taken into custody on December 16, 1986, and was transported to New York on December 23, 1986 for deportation to the Republic of Ireland.

  That same day, December 23, 1986, the Supplementary Treaty
went into effect. That treaty, under which McMullen's
extradition is now being sought, eliminates for the most part
the "political offense exception" contained in the 1977
Treaty, under which McMullen had successfully defended
against the previous extradition request. Article 1 of the
Supplementary Treaty provides, in relevant part, that:

   . . none of the following offenses shall be
  regarded as an offense of a political character:
  (b) murder, voluntary manslaughter, and assault
  causing grievous bodily harm;
  (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;
  (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.*fn5

On December 24, 1986, McMullen was in the process of being deported to the Republic of Ireland when he was arrested in New York City pursuant to a provisional warrant of arrest for extradition under the Supplementary Treaty, issued by the Honorable Peter K. Leisure. The United States Attorney's Office for the Southern District of New York, acting on behalf of the United Kingdom, filed a formal request for McMullen's extradition on February 11, 1987. McMullen has been detained without bail since his arrest on December 24, 1986.

DISCUSSION

McMullen argues that the extradition proceeding pending against him violates the Constitution in several respects. First, he argues that application to him of the Supplementary Treaty offends the constitutional prohibition against bills of attainder. Second, McMullen contends that its application to him also violates the ex post facto clause. Third, McMullen asserts that the Supplementary Treaty violates the separation of powers doctrine. Finally, according to McMullen the totality of the Government's actions in this case offend the due process clause of the fifth amendment. The Court will address these arguments in turn.

I. The Prohibition Against Bills of Attainder.

The Supreme Court has defined a bill of attainder*fn6 as "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867 (1977). Historically, a bill of attainder was a parliamentary act sentencing to death a specific person or persons who had attempted to overthrow the government. See United States v. Brown, 381 U.S. 437, 441, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965). Bills of pains and penalties were indentical in form to bills of attainder, but prescribed penalties short of death. See id.; Linnas v. INS, 790 F.2d 1024, 1028 (2d Cir.), cert. denied, 479 U.S. 995, 107 S.Ct. 600, 93 L.Ed.2d 600 (1986). It is well-settled that the constitutional prohibition applies to legislative enactments carrying either degree of punishment. E.g., id. at 1028 (citing United States v. Brown, supra, 381 U.S. at 441, 85 S.Ct. at 1711; United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1866)). See also, Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984).

It has been noted that "[b]ills of attainder have historically been passed in times of rebellion," and that "[t]he temptation to utilize bills of attainder is especially strong when national security is thought to be threatened." Linnas v. INS, supra, 790 F.2d at 1028 (citations omitted).

  The use of bills of attainder and bills of pains
  and penalties was not limited to England. During
  the American Revolution, the legislatures of all
  thirteen states passed statutes directed against
  the Tories; among these statutes were a large
  number of bills of attainder and bills of pains
  and penalties.

The bill of attainder clause was regarded by the Framers as a particular bulwark against legislative overreaching and as part of the general implementation of the doctrine of separation of powers. It "reflected the Framers' belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons." United States v. Brown, supra, 381 U.S. at 445, 85 S.Ct. at 1713. The historical evidence suggests that the clause:

  was intended not as a narrow, technical (and
  therefore soon to be outmoded) prohibition, but
  rather as an implementation of the separation of
  powers, a general safeguard against legislative
  exercise of the judicial ...

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