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Kerry opposed the extradition of Irish Republican Army criminals to Britain. In the following article he is quoted as saying ""One person's terrorist is someone else's freedom fighter"

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Killing confusion: the Senate waffles on the IRA. (extradition of Irish Republican Army criminals)


The New Republic; 6/2/1986; Melia, Thomas O.



KILLING CONFUSION

THE ISSUE IS murder. The question is whether the United States should embrace the proposition that murderous violence in pursuit of political goals is permissible in a functioning democratic society. That is, if you cannot win a fair election, and you cannot persuade elected officials to see things your way, do you then have the right to shoot and bomb those government officials? Or should you be put in jail for that kind of "political activity"?

The answer seems pretty obvious. But the Senate Foreign Relations Committee is near-to-evenly divided on it, with an unlikely coalition including Jesse Helms, John Kerry, Joe Biden, Chris Dodd, and Claiborne Pell taking the view that the U.S. should allow convicted murderers from Britain to remain free in the United States if their crimes were committed for ostensibly "political" purposes. Helms is a sovereignty obsessive, who opposes treaty obligations of almost all sorts. He opposed the Genocide Convention for years because he thought it would require the extradition of Americans to kangaroo courts in foreign despotisms. The Democrats' motivation is harder to fathom.

ON MAY 2, 1980, one Joseph Patrick Thomas Doherty, a 25-year-old volunteer in the Provisional Irish Republican Army, broke into a house in Belfast with three Provo confederates, seized three people at gunpoint, and prepared an ambush for a British army convoy they expected would shortly pass by. When a plainclothes counterinsurgency unit of the army arrived unexpectedly outside the house instead, the four men attempted to flee. Doherty, according to his own subsequent testimony, shot and killed Herbert Westmacott, a young captain in the British army. All four Provos were captured. Doherty was convicted of murder and sentenced to life imprisonment. But two days before sentencing, he and his codefendants overpowered their prison guards with smuggled weapons and escaped. The other three were subsequently recaptured. Doherty came to America. On June 18, 1983, 18 months after he'd entered the country illegally, Doherty was arrested by federal agents in a bar on Manhattan's Upper East Side. The British have requested that he be returned to serve his sentence for the murder.

On December 12, 1984, in New York, Federal District Court judge John E. Sprizzo ruled that Doherty did not have to be shipped back to Britain because the murder--which he does not deny committing--was" one of a political character." The Anglo-American extradition treaty, like most such bilateral arrangements, includes a clause stating that individuals will not be sent back to stand trial or be imprisoned for political offenses. The judge said the facts in the Doherty case "present the assertion of the political offense exception in its most classic form."

Doherty's lawyers claimed that his crime was political because there is an "ongoing insurrection" in Northern Ireland against British rule; because he was an established member of an organized paramilitary organization; because the act in question (the murder) was not motivated by any personal greed or animosity; and because the action was not "wanton," in that it did not endanger civilians and was of a nature consistent with accepted rules of civilized war. Sprizzo accepted this interpretation of the political offense exception, noting that it was beyond his ken to adjudge the merits of the political dispute--although he did examine the judiciary in Northern Ireland and found it fair, apolitical, and professional. In effect, the judge said that since an insurrection exists in Northern Ireland (where a minority of the minority Catholic community supports the armed struggle against British rule), criminal acts committed by self-styled "combatants" must be considered "political offenses" as long as they are not so wanton as to constitute war crimes, such as in indiscriminate killings of civilians. He reasoned, if that is the right word, that Westmacott's death" occurred in the context of an attempted ambush of a British army patrol.... it was the British army's response to that action that gave rise to the death of the British officer."

Amazingly, Sprizzo did not even address the question of whether resorting to violence is less justifiable in a democratic society than in one that offers no avenues of peaceful change. Perhaps it's just as well the good judge avoided the issue. Another federal judge recently did consider this question, in a similar case involving another Provisional IRA gunman, and came to the rather startling conclusion that it doesn't matter. Judge Stephen Reinhardt of the Ninth Circuit U.S. Court of Appeals, in San Francisco, said in February: "It is not our place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries.... It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for wishing to do so or the nature of the acts by which they hope to accomplish that goal."

NOW, THIS IS cuckoo reasoning. It means that a democratic government is no more legitimate an embodiment of sovereignty--no more entitled to the protection of the rule of law--than a totalitarian state or a despotism. It means that if you lose an election, you can declare war on the winner and find refuge in the United States when the law-enforcement authorities catch up to you. Consider what this logic could mean in our own country. In Puerto Rico, for instance, a small minority of people seek independence from the United States. They make their case in the familiar democratic process: speeches, advertisements, publications. Elections are contested on that basis. But advocates of Puerto Rican independence never win more than a steady five percent of the vote. Some have declared war on the U.S., and claim to have launched an uprising against American imperialism. On December 3, 1979, six months before Doherty shot Westmacott in Belfast, an attack on a U.S. Navy bus in Puerto Rico left two sailors dead and ten injured. The assailants have never been identified, although the paramilitary wing of the independence movement claimed responsibility. It seems clear, however, that if they were apprehended in London, and the reasoning of Judges Sprizzo and Reinhardt were applied by British authorities, the murderers would not be returned to face American justice.

Believing that the judicial interpretation of what constitutes a political offense for the purposes of extradition has gone seriously awry, the State Department and the British government last year negotiated a revision of the Anglo-American extradition treaty to clarify that violent crimes in either the U.S. or the U.K. ought never be considered political offenses protected from extradition. This is a normal process; laws are rewritten all the time when Congress thinks the judiciary has misinterpreted a statute. Yet the supplementary treaty has languished in the Senate for almost a year, and is increasingly a point of controversy.

The fundamental point that there is no legitimate recourse to violence for political ends in a democratic society--that extradition to Britain is a different matter than extradition to, say, Syria, Suriname, or South Africa--seams to be lost on some senators. "One person's terrorist is someone else's freedom fighter," opines Kerry. Dodd says, "The principle of political asylum has been an extremely important part of our history for 200 years. It has protected people of every color and stripe." Led by Joe Biden, the Democrats have proposed an alternative treaty explicitly providing that--even in a democratic society such as Great Britain--"insurgents" could murder a policeman or soldier and claim that this was an "offense of a political nature."

State Department officials, including Secretary George Shultz and legal adviser Abraham Sofaer, have charged that the Democrats' opposition is due to sympathy for the terrorists of the IRA. The British, too--rightly angry that their lonely support for President Reagan's raid on Libya is not being reciprocated with help in punishing terrorists through legal means--have taken to claiming that opposition to the treaty is due to "ethnic lobbies." The Times of London recently ran a headline bleating, "The Senators Who Side with IRA," over mug shots of Senators Biden, Dodd, Kerry, and Helms.

For Biden and Dodd, at least, this is near to slanderous. For years they have joined with other leading Irish-American politicians--such as Tip O'Neill, Ted Kennedy, and Pat Moynihan--in roundly condemning the murderous jtactics of the Provisional IRA. Last year they co-signed the annual St. Patrick's Day statement of the congressional "Friends of Ireland," which declared that "political violence is morally abominable as well as inherently antidemocratic; there is no more place for it in Northern Ireland than there is in the United States." What could be clearer than that? Yet Biden, Kerry, Dodd et al. have offered no coherent explanation of why they now seem to believe that it is permissible to murder a policeman or a soldier in a free society. Dodd says: "If you go after a military barracks, I'm not sure, ipso facto, that it should be considered a terrorist act."

This is not to say that there aren't legitimate complaints about the state of affairs in Northern Ireland. The issue, however, is whether there is a peaceful constitutional process in place through which those grievances can be addressed. For all its shortcomings, Northern Ireland remains a democratically governed community. Moreover, the prospects for meaningful progress on the principal grievances have been enhanced since last year, when the British and Irish governments reached agreement on a new arrangement for Northern Ireland. And clear majorities, in both Catholic and Protestant communities in Northern Ireland, have consistently rejected the men of violence in elections.

THE DRAFT treaty is not perfect. It includes a retroactivity provision that raises real civil liberties questions about ex post facto law-making and double jeopardy for those whose cases have already been decided. It also would allow suspects to be extradited for foreign crimes after the statute of limitations would have expired if the crime had been committed in this country. But these problems can be fixed. The heart of this debate, it is increasingly clear, is whether violence is admissible as a means of political expression in democracies.

The Irish Republic extradites murderers to Northern Ireland for punishment. The U.S. should do as much.

COPYRIGHT 1986 The New Republic, Inc.