his alleged fear of retribution, which is itself based on a tale of intrigue.
Beukes, who was in the South African military when he committed the offenses for which his extradition is sought, claims to have struck a bargain with the government after his conviction. Specifically, he asserts that two unnamed "gentlemen in suits," who were working for then-President Botha, arranged for his bail pending appeal in 1985.
They then assigned Beukes to an unnamed branch of the South African Special Forces, a "highly covert operation" which "nobody knows about." Beukes claims he was told that, in exchange for his work in this group, his appeal would be "pushed under the carpet." Beukes further claims that for two years, he debriefed informants regarding the activities of political terrorists, including those within the African National Congress ("ANC"). Upon finding out where the armed terrorists were, Beukes alleges that he and his colleagues "would go in at night with a chopper, covert operation; and we would shoot at these certain buildings ... the ANC commando[s] ... [would] come out ... and they start shooting. Now, there's a shooting in progress, and the South African police can come in with the vans and take over the situation."
Beukes claims that he has lost count of the number of times he performed this task. He further claims that in 1987, when the "liberals" in South Africa's government became aware of this covert activity, he became "expendable." At this point, Beukes alleges that a government official told him his convictions would be upheld and helped him escape. Specifically, Beukes claims that he was given money and directed to a person in the American Embassy, who arranged for his speedy escape to his country of choice, which turned out to be the United States.
Beukes now claims that, based on this history of activity against the ANC, he fears "retribution" by the current South African government if he is extradited. This argument has no merit. First, South Africa does not seek to extradite him for an offense arising out of his alleged political activities. Rather, it seeks extradition so that Beukes can serve a sentence for a murder for which he was convicted and sentenced before those activities allegedly occurred. Second, although Beukes claims that the ANC is "now in control of the government, and, theoretically, might seek to punish him for his anti-terrorist activities," Memorandum Of Law In Support Of Application For Habeas Relief at 4, there is no evidence other than Beukes' own speculation that suggests that it will actually do so.
Indeed, since the extradition process was initiated in 1990, years before the ANC came to power, it seems extremely unlikely that it was designed to serve unstated, ulterior motives of the ANC. Third, South Africa's extradition request contains the explicit assurance the "should Mr JOHANNES BEUKES be extradited to the Republic of South Africa, he will not ... be kept in custody or be brought to trial for a crime or offence other than to serve the sentence imposed for the crime of murder of which he has already been convicted." Affidavit of Daniel Jacobus Rossouw dated June 12, 1991, at 10. There is not only no basis in the record before me to question that representation, but I would have no authority to do so even if there were. The court of appeals in this circuit has made it clear that "'it is not the business of our courts to assume the responsibility for supervising the integrity of the judicial system of another sovereign nation.'" Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) (quoting Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir.), cert. denied, 429 U.S. 833, 50 L. Ed. 2d 98, 97 S. Ct. 97 (1976)). Thus, although I find Beukes' claims that he will be deprived of his constitutional and human rights entirely unpersuasive, the more important fact is that such claims are not within the limited scope of habeas review. 910 F.2d at 1066-67.
Beukes contends further that the treaty between the United States and South Africa prohibits his extradition because he has not yet served the entire sentence imposed for the crimes he committed in the United States. He argues that extradition must be delayed until he completes a term of supervised release and pays a fine constituting the remainder of his sentence.
Article 4 of the treaty indeed provides for deferred extradition until the imposed sentence is served in its entirety. It reads as follows:
"if the person claimed should be . . . under punishment in the territories of the High Contracting State applied to for any other crime or offense, his extradition shall be deferred until . . . the full execution of any punishment awarded to him."
Extradition Treaty between the United States of America and the Union of South Africa, art. 4, December 18, 1947, 2 U.S.T. 834, T.I.A.S. 2243. However, only the United States as signatory to an extradition treaty has standing to invoke its provisions to block an extradition. In this case, the United States has not only failed to protest petitioner's extradition, but rather has pursued it. For this reason alone, Article 4 of the treaty cannot afford the relief petitioner seeks.
In addition to the above issues that were argued by counsel, Beukes raises some additional points in his pro se habeas petition. First, he claims to have been denied due process by the failure of the Bureau of Prisons to advise him of the extradition detainer lodged against him. He claims that this failure impaired his ability to seek relief "through the Interstate Agreement on Detainers and speedy trial rights." (Petition at 6-7.)
The Interstate Agreement on Detainers ("IAD") is inapplicable to the extradition detainer. The history and purpose of the IAD is reviewed at length in United States v. Ford, 550 F.2d 732 (2nd Cir. 1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978). It was designed to address the many disadvantages and abuses of a system in which one or more jurisdictions had outstanding charges against a prisoner held by another jurisdiction. It allows a prisoner to force the resolution of outstanding detainers and their underlying charges; similarly, it permits a prosecutor to obtain custody of such prisoners for trial more easily. 550 F.2d at 737-41.
The IAD, however, governs the use of detainers as among "states," which are defined to mean the United States, the states themselves, territories or possessions of the United States, the District of Columbia and Puerto Rico. 18 U.S.C. app. p. 586 (1995). It confers no rights on Beukes with respect to the detainer lodged as a result of the extradition request. Even if it did, it would confer rights only with respect to detainers lodged based on "untried" charges. Id. at 586. Beukes is sought by South Africa to serve a sentence for a crime for which he has already been tried.
Next, Beukes contends that rights guaranteed to him by the "Uniform Criminal Extradition Act" have been violated. Specifically, he contends that he has been held in custody pending extradition for 108 days, in excess of the 60 days (or extensions for good cause) permitted by the statute.
Beukes' claim implicates 18 U.S.C. § 3188, which requires that persons "committed for rendition to a foreign government" must be "delivered up" and "conveyed out" of the United States within two calendar months after such commitment, unless "sufficient cause is shown . . . why such discharge ought not to be ordered." 18 U.S.C. § 3188 (1995). However, where, as here, the accused has instituted and pursued review of his extradition order, that two-month period does not begin to run until there has been a final adjudication of his claims, which of course are still pending. Jimenez v. United States District Court, 11 L. Ed. 2d 30, 84 S. Ct. 14, 18 (1963). In any event, any delay in effecting extradition that is attributable to proceedings commenced by him are plainly "sufficient cause" within the meaning of § 3188.
For the foregoing reasons the petition for a writ of habeas corpus is denied. Execution of the extradition is stayed, however, until June 23, 1995, at 1:00 p.m., to allow petitioner to seek a further stay from the court of appeals.
JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
June 13, 1995