When Is a Terrorist?

Two of the three members of the 9th Circuit Court of Appeals have agreed at least that William Joseph Quinn, accused of murder and bombing for the Irish Republican Army, should be extradited to Great Britain on the murder charge. So he should.

But each of the three judges reached different conclusions about the law. At the heart of the controversy is deciding whether the court should bar extradition on the ground that the crime constituted political action, which is protected from extradition, or whether it was criminal action, which clearly is subject to extradition.

Judge Stephen Reinhardt argued that those accused of international terrorism, defined as actions outside the nation in question, cannot be protected from extradition. Fine. But he decided that Quinn should be extradited only on the ground that the crimes with which he is charged were committed in England, not Ireland--a finding that raises more problems than it solves.

Only Judge Ben C. Duniway, concurring with Reinhardt on the extradition of Quinn, dealt squarely with what is the critical issue--national terrorism, such as the campaign of the Red Brigades in Italy and the IRA in Northern Ireland. He supported an earlier decision of the 7th Circuit Court of Appeals that bravely moved into the broader questions of trying to define “whether particular forms of conduct constitute acceptable means or methods of engaging in an uprising.” In that earlier decision the justices argued that violent acts against innocent civilians could not enjoy the definition of political activity protected against extradition.

Reinhardt, on the other hand, argued that “it is for the revolutionaries, not the courts, to determine what tactics may help further their chances of bringing down or changing the government,” which leaves little discretion to the courts.

One justice termed the case “excruciatingly difficult.” It does not seem that difficult to make a distinction between someone who turns to the murder of innocent civilians in a society, such as the United Kingdom, with manifest freedoms of political expression, and one driven to violence under a repressive regime because there is no alternative for energizing political change. An IRA murderer cannot enjoy the defense of political necessity, but a guerrilla fighting the Soviet occupation of Afghanistan can.

The task of the courts would be helped in cases involving Irish terrorism if the Senate could bring itself to ratify the excellent revised treaty of extradition that has been negotiated with Britain. In the meantime, however, the courts enjoy adequate authority to assure the extradition of those, like suspected IRA killers, whose claim to political protection is clearly invalid.