information, the Department began negotiating a mutually satisfactory agreement with Bauer and her attorney. Subsequently, in November of 1967, Switzerland, on the basis of the incompleted sentence for patricide, obtained a court order certifying that Bauer was subject to extradition. As part of the agreement eventually concluded between Bauer and our representatives, we agreed to use our best efforts to assure that she would not be returned to Switzerland by our Government, despite the existence of this outstanding order of extradition. For her part, Bauer gave crucial testimony in subsequent trials and provided us with intelligence information that was characterized as invaluable by our officials.

In August of 1973, Bauer brought a successful action in the United States District Court for the Southern District of Florida for specific performance of this agreement. The District Court entered an order forever estopping the Government from enforcing the order of extradition outstanding against her. The Court in effect construed the commitment to Bauer as an absolute guarantee that she would not be extradited. Its basis for doing so was her stated recollection of the agreement and the view of our representative that she could have received this impression as the commitment was embellished by representations as to the probable success of our efforts on her behalf as well as assurances that "Washington keeps its deals."

For the primary purpose of asserting Switzerland's interest in these proceedings, the Justice Department appealed the District Court order. However, the Court of Appeals rejected our argument that the order was invalid because Switzerland was an indispensable party to these proceedings affecting her interests and should therefore have been joined. The Court also found it unnecessary to decide whether the commitment to Bauer involved an absolute guarantee that she would not be extradited, apparently believing that her constitutional rights had been violated by failure of the Government to make any effort to assure that she was not returned to Switzerland. Thus, the Court expressed the view that foreclosing extradition was in all probability the only remedy available to her at this time.

However, rather than affirming the District Court order of estoppel-which would have been not only a bad precedent but would have involved, as the Court noted, the judiciary "treading upon delicate international relations," the Court of Appeals has remanded the case to the District Court for "an authoritative declaration of the position of the United States Government” as regards its intent with respect to enforcement of the extradition order.

The Court of Appeals has made quite plain its hope that the matter will not have to be resolved by the judiciary. Equally plain is the Court's inclination to uphold, if necessary, the commitment to Bauer, presumably by affirming an order of estoppel on the theory that individual constitutional rights are superior to the Government's treaty obligations. Given the Court's conclusion that a promise was made but not fulfilled, we find this theory persuasive and, accordingly, request that the outstanding order for Bauer's extradition not be executed.

The Court of Appeals was correct in finding that we had made no effort to prevent Bauer's return to Switzerland. Any impetus to do so was lost when, in October of 1969, she escaped from prison where she was confined pursuant to a sentence received on her guilty plea to reduced charges, which also constituted part of our agreement with her. The Court, however, was receptive to Bauer's position that the escape was effected only because she greatly feared being returned to Switzerland and had been told that the Government, notwithstanding its commitment in this regard, intended to extradite her to Switzerland.

We are not unmindful that Switzerland's interests have been compromised and have taken steps to ensure that a problem of this nature does not recur. Instructions have been issued that any future agreements regarding such matters must be approved in advance by this Department.

However, we must of course deal with the matter in its present posture. We would not wish to countenance a plain violation of Josette Bauer's constitutional rights, and in the circumstances presented, it is our view that all interests would be advanced by a decision not to execute the outstanding extradition order.

We share the hope of the Court of Appeals that this matter will not ultimately have to be resolved by the judiciary, though we have little doubt as to what its resolution will be should it come to that. Therefore, I would be most appreciative of your assistance in resolving this vexing problem which creates difficulties for you in our relationship with Switzerland as well as difficulties for the Department of Justice in its relationship with the judiciary.

We are enclosing for your further consideration a copy of the opinion of the Court of Appeals and will attempt to continue further court proceedings pendíng our receipt of your advice at your earliest convenience.

Deputy Secretary of State Robert S. Ingersoll responded in a letter dated March 19, 1976, as follows:

Your letter of October 9, 1975, relating to the pending extradition of Josette Geisser Bauer has been carefully reviewed by this Department. We have also carefully examined the Extradition Treaty between the United States and Switzerland signed at Washington May 14, 1900 (31 Stat. 1928), and its two supplements (49 Stat. 3192 and 55 Stat. 1140).

While we understand the difficulty presented by the decisions of the courts in this matter and are sympathetic to your concern, which we share, that this matter affecting international relations will be resolved by the judiciary, the treaty in question does not provide discretionary authority to the Secretary of State to withhold extradition properly requested by the Government of Switzerland. Article I, for example, states that the "Government of the United States of America and the Swiss Federal Council bind themselves mutually to surrender such persons as, being... convicted of any of the crimes or offenses enumerated hereinafter in Article II Article II states that extradition "shall be granted for the following crimes and offenses. . . .” Neither District Judge Clyde Atkins in the 1967 extradition

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proceeding, nor this Department, have found applicable any of the defenses enumerated in articles VII, VIII, or IX of the treaty. Nevertheless, mindful of the commitment made by representatives of the Department of Justice, even though without the authorization or approval of the Department of State, to exert best efforts to assure that Ms. Bauer would not be returned to Switzerland, the Department of State has held discussions with representatives of the Embassy of Switzerland and had two exchanges of notes on this subject. After an initial exchange of notes of October 24 and December 11, 1975 (enclosed), in which the Swiss Government maintained its request and expressed the opinion that not granting extradition would violate the obligations of the treaty, a meeting of legal representatives was held on January 13, 1976 (memorandum of conversation enclosed), with an expression of continued strong Swiss interest in the extradition of Ms. Bauer. Finally, a first person note was sent to the Charge d'Affaires of the Embassy of Switzerland urging his government to withdraw its extradition request (enclosed). The response of the new Ambassador, addressed to the Secretary of State and dated March 15, 1976, has just been received (enclosed). For the reasons stated in that note, the Swiss Government continues to maintain its extradition request.

Our repeated attempts at different levels to have the Swiss Government withdraw its extradition request having been unsuccessful, and in the absence of discretion under the treaty, it is my view that the United States Government has made its best efforts to assure that Ms. Bauer will not be returned to Switzerland. I believe the unauthorized assurances of Justice Department representatives can and should require no more.

In this connection, I am pleased to note that your Department has taken steps to ensure that a problem of this nature does not recur. While your letter describes the instructions as being that any future agreements be approved in advance by your Department, I expect that no such approval, directly affecting treaty obligations and the conduct of foreign relations, will be given without the concurrence of the Department of State.

Finally, I note that the Swiss Government throughout has expressed its willingness for its views to be communicated to the court, both through the enclosed documents and through participation in the hearing later this month.

Dept. of State File Nos. P77 0017-4 and P76 0048-1149.

Witness Protection Agreement

In Peroff v. Hylton, 542 F.2d 1247 (1976), the U.S. Court of Appeals for the Fourth Circuit, on October 21, 1976, held that a witness protection agreement between the Department of Justice and an alleged fugitive from justice did not bar extradition of the alleged fugitive to Sweden, since the agreement was designed to give the alleged fugitive protection from underworld assassins and not to protect him from otherwise proper and legal prosecutorial measures. Peroff had sought review of an order authorizing his extradition to

Sweden on charges of securities fraud. The U.S. District Court for the Eastern district of Virginia denied relief, and the U.S. Court of Appeals affirmed.

With respect to the witness protection agreement, the opinion of the Court of Appeals stated:

Peroff complains that he was not permitted to introduce testimony about the protective agreement and the physical risks he would encounter if actually delivered to the custody of Swedish authorities and transported to Sweden. The protective agreement, however, is simply irrelevant to the question before the court. If there are potential assassins in Swedish prisons, it is for Sweden to take measures adequate to secure Peroff's safety and protection. There is no reason to suppose that Sweden cannot do whatever is required to assure Peroff's safety. A denial of extradition by the Executive may be appropriate when strong humanitarian grounds are present, but such grounds exist only when it appears that, if extradited, the individual will be persecuted, not prosecuted, or subjected to grave injustice. Such a reason is not present here. There is no basis for suspecting Sweden's criminal processes, or supposing that Sweden cannot or will not adequately provide for Peroff's protection from criminal elements who may have grievances against him.

The Court also found that the fact that the surrender warrant for Peroff's extradition had been delivered to the Swedish Ambassador did not deprive the Court of habeas corpus jurisdiction to review the order authorizing the extradition where there had been no attempt by Swedish officials to obtain physical custody of Peroff and he was at large on bail.

Doctrine of Specialty

In United States v. Flores, 358 F.2d 939 (1976), decided on July 9, 1976, the U.S. Court of Appeals for the Second Circuit held that the international doctrine of specialty does not purport to regulate the scope of proof admissible into evidence in the judicial forum of the requisitioning state. The Government was appealing a pretrial decision of the U.S. District Court for the Southern District of New York excluding certain evidence from a pending prosecution for conspiracy to sell narcotics as being inadmissible under the terms of an extradition treaty involving Spain and the United States. The extradition order of the Spanish court had expressly limited the extradition to activities after September 3, 1970 (the date on which Spain joined the Geneva Convention of 1936 for the Suppression of Illicit Traffic in Dangerous Drugs) (198 LNTS 299).

The Court of Appeals reversed the District Court's ruling. It observed:

.. unless it is unequivocally clear that Spain was authorized under principles of international law and intended to limit the manner by which United States prosecutors might try a conspiracy case, we would feel constrained to follow domestic evidentiary rules

The international doctrine of specialty, upon which Flores relies, cannot provide him with support, since that doctrine does not purport to regulate the scope of proof admissible into evidence in the judicial forum of the requisitioning state. Instead, the doctrine has more modest roots. In United States v. Rauscher, 119 U.S. 407 (1886), the Supreme Court established as a judicially enforceable principle of our domestic law that an extradited defendant may not be charged and tried for crimes not enumerated in the applicable extradition treaty. See also Valentine v. United States ex rel. Neidecker, 299 U.S. (1936); Factor v. Laubenheimer, 290 U.S. 276 (1933). This later was carried further to provide that even if the treaty specifies crimes for which the defendant may be criminally responsible, prosecution for such offenses will be barred if the asylum state did not grant extradition for such crimes. Johnson v. Browne, 205 U.S. 309 (1907). Consequently, in modern times most of our attention has been directed to deciding whether certain offenses which the government seeks to prosecute fall outside the contemplated scope of the foreign sovereign's extradition decree. . . . It is clear, however, that even as the specialty doctrine has been defined and broadened in this century, it has never been construed to permit foreign intrusion into the evidentiary or procedural rules of the requisitioning state, as distinguished from limiting the jurisdiction of domestic courts to "try or punish the fugitive for any crimes committed before the extradition, except the crimes for which he was extradited." Friedmann, Lissitzyn & Pugh; International Law 493 (1969). Where, as here, a defendant is indicted and tried for the precise offense contained in the foreign extradition order. . . the doctrine does not authorize us to disregard normal evidentiary rules followed by this forum.

Hijacking

On November 15, 1976, the Chambre d'accusation of the Cour d'appel of Paris refused the request of the United States for extradition of five persons to face trial in the United States on hijacking charges. The French court concluded that the political motivation allegations by the fugitives, plus the reception of the fugitives by the Algerian Government as political militants, brought the request for their extradition within the political offense exception in article VI of the U.S.-France extradition treaty of 1909, as supplemented in 1970 (TIAS 7075; 22 UST 410). The court's decision against extradition is final and binding on the French Government.

The five fugitives-George Brown, George Edward Wright, Melvin McNair III, Jean McNair, and Joyce Burgess-were wanted