On appeal from order denying petition for habeas corpus, Ninth Circuit decides that political offense exception under Extradition Treaty does not apply to bombing plot against Vietnamese embassy in Thailand
Van Duc Vo, a naturalized U. S. citizen born in Vietnam (Petitioner), belongs to the Government of Free Vietnam (GFVN). The GFVN seeks to dismantle the Communist dictatorship of the Socialist Republic of Vietnam, which in turn has linked the GFVN to several incidents of terrorism in Vietnam and elsewhere. In October 2001, U. S. authorities arrested Petitioner in California for his part in an attempted bombing at the Vietnamese embassy in Bangkok, Thailand earlier that year.
The U.S. ratified a Treaty Relating to Extradition with Thailand which entered into force in May, 1991. Pursuant to the Treaty, the government of Thailand requested that the U. S. extradite Petitioner. After a hearing, a Magistrate Judge certified Thailand's request for extradition to the Secretary of State. Petitioner asked the district court for a stay and for a writ of habeas corpus, but the district court denied his petitions. He noted a timely appeal from the district court's order, contending that the alleged bombing plot constituted a nonextraditable "political offense."
As is typical of extradition treaties, Article 3 of the U.S.-Thai Treaty provides that neither party shall grant extradition when a the other asks seeks extradition for a political offense. For a crime to qualify for the political offense exception, there must be "the occurrence of an uprising" and the charged offense must be "incidental to' the uprising. See Quinn v. Robinson, 783 F.2d 776, 797 (9th Cir. 1986).
In a May 22 opinion, the U.S. Court of Appeals for the Ninth Circuit rejects Petitioner's claim that the bombing plot was incidental to a political uprising against the Vietnamese government.
"The political offense exception was designed to protect those engaged in internal or domestic struggles over the form or composition of their own government, including, of course, struggles to displace an occupying power." Quinn, supra at 807.
First, this Court finds that the degree of violence in Vietnam at the time of Petitioner's conduct does not reach the level necessary to characterize it as an "uprising." Second, the Court concludes that Petitioner would not qualify for the political offense exception because his alleged crime did not take place "within the country or territory in which those rising up reside," as required by Article 3. This geographical limitation ensures that the political offense exception will not end up protecting international terrorism.
The appellate Court also spurns Petitioner's due process claim. His argument rested mainly on Article 5(2) of the Extradition Treaty, which permits the U. S. to refuse to extradite an individual if it has proceeded against the individual for the offense for which extradition is requested. According to Petitioner, the Magistrate Judge had violated his due process rights by failing to make a finding as to whether the U. S. had "proceeded against" him.
Since an extradition court has no authority to make a discretionary decision, its failure to construe the Treaty in order to aid the Secretary of State in the exercise of her discretion did not deprive Petitioner of due process. "An extradition court exercises very limited authority in the overall process of extradition. Its role is limited to determining an individual's eligibility to be extradited, which it does by ascertaining whether a crime is extraditable under the relevant treaty and whether probable cause exists to sustain the charge. If those requirements are met, it is required to certify the individual as extraditable to the Secretary of State. After an extradition magistrate certifies that an individual can be extradited, it is the Secretary of State, representing the Executive Branch, who ultimately decides whether to surrender the fugitive to the requesting country." [1245].
Citation: Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006).
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