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3

Extradition

In the 1940s, Menachem Begin participated in and advocated violence in hopes of a British withdrawal from Palestine. At one point the British government offered an award of £10,000 for Begin’s capture. Kelly (1992) questioned whether the United States would have agreed to a British extradition request had Begin sought refuge in the United States (in later years, as Kelly notes, Begin was awarded the Nobel Peace Prize).

For nearly a century the United States recognised a political offence exception to extradition so that persons accused or convicted elsewhere of politically-motivated offences were exempt from extradition. In the nineteenth century and for most of the twentieth century, this defence to extradition had been included in nearly all extradition treaties involving the United States and other countries (Farrell 1985). Extradition history changed dramatically in 1986, with the passage of the US-UK Supplementary Treaty, a document that was influenced greatly by the special relationship between the United States and Britain.

Between 1977 and 1986, extradition decisions between the United States and Britain were based on the guidelines outlined in 28 U.S.T. 228, the 1977 extradition treaty between the two countries. Only a few Irish republicans were targeted for extradition during those years and among those persons for whom extradition warrants were issued, judges typically found the offences to be politically motivated, thus extradition to Britain was denied. These cases are highlighted below.

In 1978, Desmond Mackin was charged in Northern Ireland with the attempted murder of a British soldier. He later entered the United States where he was arrested in 1980. The US government issued an extradition warrant after Britain requested Mackin’s return. Extradition proceedings commenced thereafter, at which point Mackin denied the charges. The magistrate ruled that the evidence of attempted murder was insufficient, but that the case would be reviewed on the charge of possessing and firing a weapon.

The court found that Mackin’s offences were political and therefore he could not be extradited. The magistrate used three criteria in determining the political nature of the offence and denying extradition: 1) that a political uprising was occurring at the time when, and place where, Mackin committed the offence; 2) that Mackin was a member of an uprising group, that is, the IRA in this case; and 3) that Mackin’s offence was related to the political uprising and ‘in furtherance of’ its goals. An appellate court affirmed the decision in 1981.

US law allows the INS to initiate deportation proceedings even when extradition has been denied for political offences. Stated differently, a person can ‘win’ or succeed in an extradition hearing, but be deported from the United States by the INS for entering the United States illegally. Moreover, immigration officials are not required to consider the evidence and outcome of an extradition hearing. Or, where political offences are involved individuals must demonstrate the political nature of the case in an extradition hearing and if extradition is denied, an immigration hearing is likely to follow during which persons must show a well-founded fear of persecution if s/he were returned to the home country.

In Mackin’s case, the INS initiated deportation hearings after the extradition warrant failed.¹ Persons facing deportation can choose a country to which they wish to be deported if that country will accept them. Mackin chose to be deported to the south of Ireland rather than risk deportation to British authorities.² The British government never issued an extradition warrant to the south of Ireland for Mackin’s return. This decision may have been based on the belief that the judiciary in the south would also have found Mackin to be non-extraditable or perhaps because the US judiciary failed to find probable cause to support a charge of attempted murder. Alternatively, a successful extradition from the south of Ireland would have embarrassed the US government in that the move would appear even more like a ‘disguised extradition’ from the United States. Asylum and extradition often have contradictory goals (Bassiouni 1996) and an extradition request issued to a second government to which the US deported the accused would have highlighted this contradiction.

Peter McMullen, one-time member of a parachute regiment of the British army, deserted in the 1970s, joined the IRA, and in 1974 participated in bomb attacks against military posts in Yorkshire, England. He later entered the United States, surrendered in San Francisco in 1978 and requested political asylum claiming that he would be targeted by the IRA after informing on some of its members. The British government issued an extradition warrant, the first since 1903 for an Irish political offender (Farrell 1985). Paul O’Dwyer’s³ firm assisted the defence; McMullen was not popular in Irish American republican circles but O’Dwyer and his colleagues focused on the larger picture (that is, the legal precedent regarding the extradition of Irish Republicans, former or otherwise) rather than on McMullen’s reputation as an informant (Wilson 1995).

The extradition warrant was dismissed by a US judge in 1979, who used two criteria in denying extradition: 1) that McMullen’s offence occurred during the time of a political uprising; and 2) that McMullen was a member of the uprising group. Although McMullen was not extradited to Britain at this time, deportation proceedings commenced shortly thereafter. Eventually, McMullen requested to be deported to the south of Ireland. On the day of the scheduled deportation, and just after the Supplementary Treaty (discussed below) became effective, the US government approved a second extradition request from Britain (Bassiouni 1996). Proceedings against McMullen commenced again and the extradition request was granted. McMullen was extradited to Britain after spending nine years incarcerated in the United States awaiting either deportation or extradition hearings. His case, however, generated little support from Irish America (O’Hanlon 1996), largely because of his status as an IRA informant.

William (Liam) Quinn is a US citizen by birth. Although born and raised in the United States he allegedly became an IRA volunteer. He was subsequently convicted and imprisoned in the south of Ireland for IRA membership, returning to the United States in 1978 shortly after his release (Farrell 1985). Quinn was arrested in California by FBI agents in 1981 after the US government approved an extradition request from British authorities.

The British government alleged that Quinn had participated in the murder of a London police officer in 1975.⁴ The extradition warrant was issued several years after the killing and reports indicated that the British knew of Quinn’s whereabouts and could have arrested him eleven weeks after the offence had occurred. The passing of a number of years made it difficult for Quinn to locate witnesses and to recall his alibi (Clarizio 1988).

In 1982 a magistrate used the same criteria outlined in the Mackin case but refused to apply the political offence exception because the act had occurred in England, rather than in Northern Ireland. Moreover, the magistrate concluded that Quinn had not provided enough evidence to verify his membership of the IRA. A reversal came one year later when a judge ruled that the magistrate had erred and concluded that Quinn’s actions were political in nature. Extradition was therefore denied. The US government appealed, in which case the Ninth Circuit Court affirmed the first ruling, holding that the political ‘uprising’ did not extend to England. Accordingly, had Quinn’s actions occurred in Northern Ireland, the political offence exception would have applied and extradition would have been denied.⁵ Quinn was extradited to Britain where in 1988 he was convicted of murder and received a life sentence. He was imprisoned in England but requested a transfer to the south of Ireland. He was released from Portlaoise prison in April 1999.

The legal reasoning in the Quinn case was contradictory. The appellate court ruled that the uprising did not extend to England, but in their decision the court referred to Quinn’s conviction in the south of Ireland where he was tried ‘in a special court utilized for the trial of political cases’ (Ninth Circuit 1986, p. 783). They referred to his imprisonment in the south of Ireland for which Quinn was ‘categorized in Dublin as a "special category prisoner" - a political prisoner incarcerated in a manner akin to prisoner-of-war status’ (Ninth Circuit 1986, p. 783). The court then appeared to acknowledge Quinn’s political status during his incarceration in the south of Ireland. From this acknowledgement the court indirectly suggested that the uprising extended to the south of Ireland. Its refusal to recognise that the uprising extended to England was illogical.

In the McMullen case, the British sought extradition for an alleged offence committed in England, yet extradition was denied because McMullen’s actions were determined to be political in nature. Quinn’s actions were also alleged to have occurred in England, yet the court found that the site of the offence was external to the uprising in the north of Ireland, ‘An uprising is both temporally and spatially limited’ (Ninth Circuit 1986, p. 817).

Quinn’s US citizenship would have been advantageous had he succeeded in fighting extradition, for that status would have prevented his deportation. However, citizenship may also have contributed to his extradition in that judges may have found it difficult to apply the political offence exception to an American who left the United States in order to take part in a political uprising elsewhere. In fact, the Ninth Circuit Court stated that it did not consider ‘...whether Quinn’s status as a citizen of an uninvolved nation would also preclude him from receiving the protection of the [political offence] exception’ (1986, p. 818). However, the dissenting judge⁶ in the case stated: ‘I do not believe that mercenaries or volunteers in a foreign conflict can claim protection under the political offense exception. I deduce from Judge Reinhardt’s views on international terrorism that he would agree’ (Ninth Circuit 1986, p. 820).

James Barr was arrested in Philadelphia in 1984 after the British government had issued an extradition warrant. Extradition, however, was denied in 1986.⁷ The judicial decision was based not on the political nature of the offence; rather, the judge noted that evidence which linked Barr to the alleged offence was lacking (Wilson 1995). On two separate occasions Barr had been arrested in the north of Ireland based on the testimony of paid informers who implicated republican paramilitaries. One informer later retracted his statements. The second informer was Harry Kirkpatrick, whose uncorroborated testimony resulted in the convictions of 25 persons. Eventually all 25 had their convictions overturned (Greer 1990). The US ruling that found a lack of probable cause reflects the differences between minimum legal standards of US and British law as applied to political offenders. The details provided in the extradition warrant by the British government failed to meet the minimum legal standards under US law (that is, ‘probable cause’). Barr still faced deportation proceedings and was held in US custody for 17 months without charge. He was finally granted political asylum in 1993, although the US government appealed that decision.

The United States sought to ‘narrow’ the political offence exception primarily in its treaties with its ‘close allies’ (Nadelmann 1993, p. 828). The extradition treaty with Britain was no exception; in fact, modifications to the US-UK extradition treaty in 1986 reflected the most substantial change ever to US extradition law. The US treaty with Britain was the first of its kind to be altered. Collectively, the changes were referred to as the US-UK Supplementary Extradition Treaty, passed by the United States Congress, approved by the British Parliament, and effective from 23 December 1986.

The Supplementary Treaty was passed in the decade during which the special relationship between the United States and Britain was at its strongest ever. The alliance between President Ronald Reagan and Prime Minister Margaret Thatcher resulted in a significant change in United States extradition policy, thereby ending a long history of providing refuge for Irish political offenders.

The introduction of the Supplementary Treaty by President Reagan was a direct reflection of the relationship between the United States and British governments at the time. Three court rulings found IRA members⁸ to be nonextraditable because courts had employed the political offence exception and refused to extradite. Rulings from these extradition hearings incited the British government and also offended the United States Justice and State Departments (Banoff and Pyle 1984). Thatcher desperately wanted IRA suspects in the United States to be extradited to Britain. Ogden (1990) noted that Thatcher’s interest in the extradition cases was one contributory factor in her decision to support the Anglo-Irish Agreement.⁹ Thatcher believed that if she did not endorse the Agreement, the United States would be less likely to assist with the extradition process.

Opponents of the political offence exception warned that the United States would become a ‘safe haven for terrorists’ (Riley 1986, p. 3). History showed differently; by 1985 the political offence exception had been applied 76 times in 140 years and successfully used as a defence to extradition on only four occasions (Bassiouni 1985). In fact, the British government had issued a minimum of 64 extradition warrants in a 20-year period to US officials and all but three had been extradited. In each of the three cases for which extradition had failed, the persons accused were alleged to be IRA members (Kelly 1992), former or otherwise.

Writers and legal scholars have traced the Supplementary Treaty passage to the 1986 US attack on Libya (Cronin 1987; Dillon 1992; Kelly 1992). After the Treaty was introduced by Ronald Reagan in 1985, the Senate vote was postponed for nearly a year during which time Margaret Thatcher permitted the United States to launch planes from airbases in Britain. In fact, Britain was the only European country to provide support for the United States in its attacks on Libya (Dobson 1995). President Reagan then announced publicly that allowing (IRA) ‘terrorists’ to remain in the United States would be offensive to Thatcher (Riley 1986, p. 3).¹⁰ A London Times (1986) editorial asked: ‘Is it not time for the government of the United States to pay a debt?’ And, relating the Treaty debates with the US attack on Libya, an act which the British government supported, the editorial told United States senators: ‘you owe us one’.

The US debt was paid. The Treaty eliminated the century-old political offence exception while including the less forceful Article 3(a) which permits a defence to extradition if, by preponderance of the evidence, the accused demonstrates that the extradition request itself is politically motivated or demonstrates that s/he will be prejudiced at trial or punished on account of race, religion, nationality or political opinion. Moreover, the Treaty was retroactive and specified that nearly all violent offences were extraditable, regardless of the political nature of the case. In effect, the offences outlined for extradition in the new Treaty coincided neatly with the list of scheduled offences¹¹ in the north of Ireland (Iversen 1989).

Foreign relations between the United States and Britain clearly affected the extradition proceedings and the subsequent deportation of Joseph Doherty; this issue has been discussed at great length by writers and legal scholars (Dillon 1992; Kelly 1992; Roebuck 1994). In December 1984, prior to the passage of the Supplementary Treaty, a federal judge in New York concluded that Doherty’s offences were political in nature and ruled against extradition. The judge based the decision on five factors: 1) the nature of its offence 2) the context of the offence; 3) the status of the accused, that is, whether the offence was committed for the defendant’s own purposes or for the goals of the organisation involved in the political uprising; 4) the nature of the organisation; and 5) whether the act occurred within the physical environment of the political uprising. The US government appealed the judge’s ruling, yet in 1985 an appellate court affirmed the district court’s decision and as a result Doherty was successful in his fight against official extradition.

Doherty had requested political asylum but withdrew the request in September 1986. Anticipating that the Supplementary Treaty would be passed and a second extradition warrant would be issued (Dillon 1992), Doherty therefore requested to be deported to the south of Ireland (immigration policy provides that persons facing deportation may request to be deported to a country of their choice, rather than to the country of origin). The INS challenged Doherty’s request but in 1987 the Board of Immigration Appeals rejected the government’s argument, providing the go-ahead for deportation to the south of Ireland. The United States Attorney-General, however, has discretion in these matters and two Attorney-Generals mentioned foreign relations with Britain as reasons for denying Doherty’s request. For the first time ever, the Justice Department considered United States foreign policy in its decision to reject a person’s request to be deported to a country of his or her choice (Kelly 1992). In February 1992, Joseph Doherty was returned to British authorities in the north of Ireland.¹²

Doherty had received considerable support from America. At one stage, an amicus brief was submitted to the US Supreme Court on his behalf, signed by 132 members of Congress (O’Hanlon 1998b). He lost as a result of a combined effort by the United States and British governments. In effect, Doherty’s case demonstrated that the executive branch would go to great lengths, including the violation of the separation of powers clause of the US constitution (Hughes 1997a), in order to exclude persons from the US, all for the sake of foreign relations.

The legal pursuit of Joe Doherty disturbed supporters, politicians and writers. Discrepancies were noted based on an individual’s country of origin. For example, in 1985 and in 1987 the United States permitted hundreds of political prisoners and their families from Cuba to enter the United States (Domínguez 1992; Hamm 1991). Cockburn (1990) described the case of Orlando Bosch, who was involved in the bombing of a Japanese freighter off the coast of Florida as well as the bombings of eight tourist offices in the United States which had allegedly conducted trade with Cuba. Bosch was eventually convicted in the United States for a gun attack on a foreign freighter in Miami. Later released, he was re-arrested for violating parole. His plea for political asylum was rejected. Strong pressure from Cuban groups in Miami, however, contributed to his being paroled and freed in the United States. Cockburn compared the case to that of Joe Doherty and suggested that: ‘The Irishman should hispanicize his name, make more influential friends in Miami and start threatening Fidel Castro.’

Nadelmann (1993) suggested that, historically, the United States has used deportation (rather than extradition) as a tool to return fugitives to their county of origin. Shearer (1971) suggested that ‘de facto extradition’ might occur more frequently than official extradition; the former refers to those cases in which persons are deported (rather than extradited) to the very country that seeks to try or punish them. Doherty was deported and not extradited, despite reports to the contrary. Kelly (1992) observed that a New York Times headline incorrectly stated that Doherty had been extradited but retracted the headline thereafter. Other news reports also incorrectly stated that he had been extradited (see for instance, Irish American Information Service 1998; McCoy 1998). Even Martin Dillon got it wrong when he noted that Doherty had been extradited (1992, P. 248). History has suggested that deportation has been used to target persons in the absence of ‘...other mechanisms of repression...’ (Schrecker 1996-1997, p. 401). And so it was for Joseph Doherty.

In the early 1990s extradition proceedings commenced in California against four men from Northern Ireland: Kevin Barry Artt, Pól Brennan, Terence Kirby and Jimmy Smyth. Known collectively as the H-Block 4,¹³ each took part in what has been described as largest mass escape from prison in British history, in September 1983.

After residing in the United States for several years, Jimmy Smyth was arrested in 1992 and extradition proceedings commenced thereafter. Like Doherty, Smyth succeeded at the initial extradition hearing after a United States District Judge found that the evidence satisfied an exemption or defence to extradition. The US government appealed the judge’s ruling during the IRA ceasefire and, in July 1995, the Ninth Circuit Court of Appeals reversed the District Court’s decision. The appellate court based its ruling on Article 3(a) of the extradition treaty which requires individuals to show fear of persecution. Smyth’s attorneys showed evidence of past persecution, and the court acknowledged such, but ruled that the defence had failed to demonstrate that Smyth would be persecuted in the future. The decision left several interested parties and political analysts wondering how ‘future persecution’ could be demonstrated. Shortly thereafter Smyth’s attorney, Karen Snell, stated in a letter to Gerry Adams: ‘... the Ninth Circuit’s opinion was influenced by a faulty understanding of the peace process [emphasis added] to date. They appear to believe that any danger republican ex-prisoners may have faced upon their release from prison has ceased’ (cited in O’Neill 1995a).

Smyth appealed for a hearing en banc (that is, to be heard by all appellate judges in the Circuit after the ruling by the three-member panel). The Justice Department fought hard -even opposing an application by the Lawyers Alliance to file an amicus brief (‘friend of the court’)¹⁴ on Smyth’s behalf. Again, during the ceasefire, the Court of Appeals agreed with the prosecution and denied the application to file an amicus brief, and more important, denied a rehearing en banc in January 1996.

Foreign relations between Britain and the United States began to deteriorate during the period 1994 to 1996. The alliance was affected a great deal by President Clinton’s faith in Gerry Adams, who during this time was granted visitor visas and permitted to raise funds in the United States (see Chapter 6). In fact some have suggested that the ‘special relationship’, established earlier in the twentieth century and cemented during the Reagan and Bush years, had soured substantially (O’Clery 1995).

Despite the friction between the two governments, Jimmy Smyth was bound over for extradition.¹⁵ The United States Secretary of State Warren Christopher signed the extradition papers in August 1996, at which point Smyth was returned to the north of Ireland.¹⁶ Within a few weeks, the United States launched its attack on Iraq and days later John Major publicly stated his support for the United States for its invasion of Iraq, citing Clinton’s courage. Shortly thereafter, Secretary of State Warren Christopher extended his appreciation to John Major for his support of the United States’ attack. The relationship between the United States and Britain was beginning to sound ‘special’ again. As others have noted, one of Clinton’s campaign promises was that there would be ‘no more Joe Dohertys’ (Boyer 1996b). In light of the 1996 extradition of Jimmy Smyth, Clinton failed to keep that promise.

One cannot help but wonder whether the Smyth extradition prompted the British interest in pursuing the extradition of Dermot McNally from the south of Ireland. McNally also escaped from Long Kesh in 1983 and had lived in the south for years. Within two months of Smyth’s return, press reports indicated that McNally had ‘been traced to the Irish Republic’ (Marshall 1996) but McNally’s residence was well known even in some Irish circles in the United States. In 1990 the Irish Supreme Court refused to grant the extradition of two other 1983 escapees. It is possible, therefore, that the British government believed that Smyth’s extradition would exert pressure on the Irish judiciary to grant British extradition requests.

The cases of Jimmy Smyth and Joe Doherty serve as a striking contrast to the case of Peter McMullen, whose case was described earlier in this chapter. Doherty and Smyth were returned to the north of Ireland through defacto and official extradition, respectively. McMullen was extradited and returned to Britain in 1996 where he was subsequently convicted in York Crown Court for the offence of bombing a British military barracks. He was sentenced to 14 years. However, the judge took into account two factors: 1) evidence produced at McMullen’s trial included previous public disclosure that he had renounced violence and the IRA; and 2) the time McMullen spent in US jails awaiting extradition hearings and fighting deportation. As a result, McMullen was released after being credited with time served elsewhere.

Doherty spent nine years in US jails and Smyth was also incarcerated in the United States for several years, yet upon their return neither was credited with time served in the United States. Doherty admitted membership in the IRA; Smyth acknowledged affiliation with Sinn Féin. Neither, however, ‘renounced violence’ as did McMullen (Naughton 1996) and neither served as an informant for the British.

In January 1993, Pól Brennan was arrested in the United States on a passport violation after a fingerprint check linked him with the extradition warrant. He has been fighting extradition ever since. Initially incarcerated in the Oakland (California) City Jail, he was transferred in October 1995 to the federal detention centre where, for the first time in 19 months, he was permitted an open visit with his wife, Joanna.

At the time of our visit it had been 19 years since Pól had last set foot in the north of Ireland - a free person. By September 1995 he had been incarcerated in the United States for nearly two years, without formally being charged with any crime. His optimism was fading when he acknowledged, ‘I don’t know if or when I’ll start to live any kind of normal existence’. At the age of 21 he was interned¹⁷ in the north of Ireland for one year without charge. He was arrested two years later in 1976 and subsequently sentenced to 16 years for possessing explosives. In 1983, along with 37 other prisoners, he escaped from Long Kesh prison.

Pól was soft-spoken and relaxed during our visit. Concerned deeply about social and economic problems in the United States, he discussed ‘the erosion of the industrial base’, ‘the increasing poverty level’ and drug-related crime. At times his knowledge of crime and the US criminal justice system paralleled that of an academic criminologist. He noted, for example, ‘the myth of a major crime wave’ in the United States and voiced concern about the US prison system which he views as ‘purely punitive’ and likely ‘to haunt this country down the line.’

He loves astronomy - and that knowledge helped guide the way during night travel after the escape. He wrote from his jail cell about topics such as the 1983 escape and the experiences shortly thereafter (Brennan 1994a), the 1994 IRA ceasefire (Brennan 1994b), and an Irish man’s life in a US jail (Brennan 1993). 1 asked him his reasons for writing, to which he replied: ‘I’d feel guilty if I didn’t write.’ He corresponds with other writers, such as Noam Chomsky and journalist Alexander Cockburn, both of whom have supported his quest for freedom.

In conversation, he recalled the sectarianism in the factory in which he worked as a young man. A Catholic co-worker had been murdered, Protestant co-workers boasted about the burning of Bombay Street and he had been threatened on numerous occasions.

A modest person in the truest sense, he describes feeling ‘uncomfortable’ when he, Artt, Kirby and Smyth were named grand marshals of the San Francisco St Patrick’s Day parade, an honour in Irish American communities.

Detained without bail, Pól longed to be released. His family, a spouse and step-daughter, lived nearby and he craved normality. Unlike most defendants processed in the US criminal justice system, there is no presumption of bail in extradition hearings. Criteria used to deny bail include a judge or magistrate’s determination of flight risk or the perception that the accused is a danger to the community. Yet Irish republicans nearly always comply with bail/bond requirements. During his lengthy incarceration in Long Kesh, Matt Morrison was able to recall only one fellow republican who failed to comply with bail regulations by not returning. Seamus Moley noted that, ‘People can’t be selfish. [Complying with bail/bond requirements] mirrors the Irish struggle - there should be no personal gain.’ Kevin McKinley agreed, ‘The struggle is not selfish - it is for the whole community.’ Failure to comply with bail requirements would risk American support and its role in the overall republican struggle in the north of Ireland.

Although bail is not automatic, judges have the authority to consider special circumstances in granting bail. A few months after I visited Pól, he, Artt and Kirby were finally granted bail. By that time the three - still uncharged - had spent over two years in US jails. Artt and Brennan were each released on $500,000 bail; Kirby’s bail was $1,000,000.

On 11 August 1997 a judge granted the extradition of all three men. The same judge had granted bail 20 months earlier, but revoked it at that time. The defence appealed both the bail revocation and the extradition decision. In February 1998, Mo Mowlam, Secretary of State for Northern Ireland, publicly stated her support for bail for the three Irishmen.

Within two months of their return to jail the three were separated. Pól was punished in solitary confinement after arguing that as a (remand) non-sentenced prisoner, he should not be forced to work in jail (Mac an Bhaird 1997b).

An appellate court affirmed the bail decision in October 1997 so that the three men remained incarcerated. One day after the US appellate ruling, Tony Kelly, another 1983 Long Kesh escapee, was released on bail in the south of Ireland. Bail was set at £40,000 - of which one-half was provided by a TD¹⁸ from County Donegal, Ireland, where Kelly had lived openly for four years.¹⁹

In October 1998, an appellate court in California reversed the extradition orders by the district court which had ruled against Artt, Brennan and Kirby. The appellate decision directed the lower court to examine more closely whether the men had received unfair treatment during the British legal proceedings that led to their convictions in the north of Ireland. The appellate court determined that the lower court had not ‘probed deeply enough into the possibility that the three men would be punished because of race, religion or political opinion’. In sum, the appellate court directed the district court to explore whether the legal system in the north of Ireland is fair and just.

In January 1998, this author received a letter from Pól Brennan in which he wrote, ‘...there has arisen a window of opportunity in my particular case that may allow me to revisit my motion before the district court to have my case heard under the old Treaty rather than the revised Supplementary Treaty. If I’m successful in getting the judge to look at this issue again.. .my claim will be heard under the political exception clause of the original treaty.’ The 1986 Treaty specified that persons convicted of certain offences could not claim the political offence exception. Pól was convicted in the north of Ireland for the offences of possession of explosives and unlawful possession of a weapon. The 1986 Treaty specifies that ‘an offense involving the use of a bomb, grenade, firearm, letter or parcel bomb, or any incendiary device’ shall not be considered to be a political offence, and therefore extradition would apply in these cases. In other words, the 1986 Treaty mentions the use’ of firearms or explosives, and Brennan argued that possession of these items is not equivalent to ‘use’, even where use is intended. He therefore asserted that his case should have been heard under the earlier 1977 Treaty with Britain rather than the more stringent 1986 Treaty. Brennan’s window of opportunity opened a bit when, nine months later, the appellate court held that his case should indeed have been decided under the 1977 Treaty. The appellate decision returns the case to the district court which will make its determination under the earlier treaty, a treaty which uses a more broadly defined political offence exception to extradition.²⁰

The decision over whether to continue to fight extradition is crucial and at times difficult. For Pól, the extradition will result in his return to Long Kesh where he will serve three years. If, however, the British policy of half-remission applies, Pól would serve between 18 and 20 months. If the British government were to credit him with time served in the United States, he would be a ‘free’ man. Alternatively, if he were to return and give up the fight against extradition, he could complete the sentence in Long Kesh and avoid an extended period of incarceration in the United States.

So why fight extradition? Why spend years in US jails without being charged with a crime, without being sentenced, knowing that there is a good possibility that you may be returned anyway? Because there is a glimmer of hope, a small chance for a win. And for Pól Brennan a win would mean life in the United States with his US-born wife, Joanna, and his step-daughter, Molly. A win just might set precedent. A win would send a powerful message from the US judiciary: that there is reason to fear political persecution in the north of Ireland.

But even if Brennan, Artt, and Kirby succeed in fighting extradition, they could still face deportation for entering the United States illegally. Imagine: After spending years in US jails and emerging as free persons from a federal court only to be handcuffed by the INS on the courthouse steps. Such as system smacks of hypocrisy.

Evidence produced by the defence during the extradition hearings of Kevin Barry Artt and Terry Kirby included data collected in the 1990s that showed a pattern of anti-Catholic bigotry among RUG officers (Ellison 1997) and evidence from several other cases in which defendants in the north of Ireland succeeded at the appellate level because of findings of perjury by government informants. Other escapees, when recaptured, were subjected to beatings and severe verbal abuse by prison guards. For example, in the extradition hearing of James Smyth, the US District Court (863 F. Supp. 1137,1146) noted the following as a ‘finding of fact’:

In fact, assaults on Irish republicans by guards in Northern Ireland are now acknowledged by the judiciary in Northern Ireland. For example, in 1998 Irish republican and former political prisoner, Martin Meehan, was awarded £14,000 for injuries he sustained during a beating by prison officers ten years earlier. The physical assault resulted in a one-week hospital stay. Compensation for injuries of £30,000 was awarded to David Adams in 1998 for being physically assaulted by police officers while in their custody (Doran 1998). Among other injuries, Adams had suffered a punctured lung and fractured leg and ribs. The Committee on the Administration of Justice (1998, p. 2) concluded that his injuries ‘...amounted to torture as defined in the Convention Against Torture’.

The extradition cases in California also included testimony from David Baxendale, an English forensic scientist, who reported that police notes allegedly taken during Artt’s interrogation appeared to have been rewritten; the notes were provided by the British government for the extradition hearing. In 1996, representatives from the Irish American Unity Conference reported that two British officials produced a 56-page document to be used for preparing witnesses appearing against Artt and Kirby in the extradition hearing (O’Coileain 1996). Judge Legge refused to hear evidence regarding the murder of Pat Finucane, a Belfast solicitor and Catholic who was murdered in 1989, although several human rights organisations have called for an independent inquiry into Finucane’s death, citing allegations of collusion between loyalist paramilitaries and police (Amnesty International 1995; Lawyers Committee for Human Rights 1996b). Extraditions are not permitted from the United States if the accused can demonstrate a ‘fear or well-founded fear of persecution.’ How can an accused demonstrate this fear? How else to show threats by loyalists or security forces without mentioning other cases in the past in which Catholics have been murdered? On two occasions defence attorneys from the United States have requested the British to reveal the contents of the Stalker Report, an investigation that allegedly uncovered a shoot-to-kill policy by security forces in Northern Ireland. Twice the British have refused to submit the document, despite judicial orders to do so. Therefore, several potentially important pieces of defence evidence were not admissable, although it is unclear whether the excluded documents would have altered the judicial outcome.

Farrell (1985) described the change in legal response in the south of Ireland that occurred in the 1970s. In the early part of that decade, IRA volunteers from the north were rarely arrested by gardaí (police in the south of Ireland) who appeared to turn a blind eye to IRA activities in the south. Moreover, despite the fact that several extradition warrants were issued by the British, no extraditions occurred, suggesting that the judiciary in the south considered IRA offences in the north to be political. Farrell noted that the British began to exert pressure on the south in 1972, emphasising that extraditions were necessary if the government of the south was to have any influence on the north. Shortly thereafter extradition warrants from the north began to result in arrests of IRA members. ‘Foreign’ policy played an important role in affecting the change in south-to-north extradition procedure. In the early 1980s, government officials from the south of Ireland voiced criticisms of the legal system in the north yet in 1984 Dominic McGlinchey became the first Irish republican to be extradited from the south to the north since 1922 (Farrell 1985). The government in the south bowed to pressure from Unionist politicians in the north and from the British government. Successful bids to extradite from south to north provided further justification for the United States to extradite Irish republicans who sought refuge from within its own territory.

Foreign relations with Britain have affected the extradition process involving Irish republicans in the United States. A subtle connection can be found between extradition proceedings and the gratitude extended for reciprocal support provided during times of war and conflict. The extradition cases reviewed herein raise issues of concern whereby US law was not broken but bent in order to appease a foreign ally. One concern focuses on Peter McMullen’s case, whereby the second extradition request came through at the same time that he was scheduled for deportation to the south of Ireland. Was deportation intentionally delayed by the INS for the purpose of forcing McMullen into the jurisdiction of the British? The timing was not coincidental. Britain needed McMullen. How better than to send a message to the IRA that former members who worked to discredit the organisation would be treated with leniency? Joseph Doherty also believed that the INS was dragging its feet in his case, with delays and appeals in their hopes that a second extradition warrant would be issued after the 1986 Treaty became effective. These cases highlight the fact that extradition and deportation are not separate tools for exclusion; rather, the latter is a substitute for the former when all else fails.

Quinn's s case is also of concern. Had Quinn succeeded in fighting extradition, his US citizenship would have protected him from deportation. Of the four pre-1986 cases that involved Irish republicans (former or otherwise), three were deported (Doherty, Mackin and McMullen) but Quinn, the only US citizen of the four, was extradited; perhaps because there was no other outlet available to return him to Britain.

The cases involving Mackin and Barr are a third concern. US judges in these cases ruled that the evidence was insufficient to support the extradition warrant. It is possible that the US government endorsed the extradition warrants because it believed that approval for the warrants was sufficient demonstration of support for its ally.