in the United States under warrants issued on August 8, 1972, by the U.S. District Court for the Southern District of Florida for air piracy in the hijacking of a commercial aircraft in flight, and for aiding and abetting the crime. A Delta Airline flight en route from Detroit to Miami on July 31, 1972, with 94 passengers and a crew of seven aboard, had been hijacked at gunpoint over Savannah. The hijackers demanded $1,000,000 ransom in return for the lives of the passengers and crew and a flight to Algeria. The aircraft landed at Miami where $1,000,000 ransom was placed on board and all passengers released. After landing in Boston for refueling and to pick up an international navigator, the flight arrived in Algeria on August 1, 1972. The three male hijackers at the time of the hijacking were fugitives, two being escapees from prison on sentences for murder and armed robbery, respectively, and the third a U.S. Army deserter. Algeria subsequently returned most of the ransom money.

The hijackers were arrested in Paris on May 26, 1976, by French police at the request of the U.S. Embassy for purposes of extradition. They were also charged with possession of false passports and false travel documents. On July 2, 1976, the United States formally requested their extradition. In a hearing before the Paris Court of Appeals on October 18, 1976, the French Avocat General recommended favorable action on the U.S. request.

In rejecting the U.S. extradition request, the Paris Court of Appeals took note of the fugitives' contention that the charges against them covered a political motive and their claim that the hijacking was done to escape from the segregation to which they were allegedly subjected in the United States because of their black race and their contribution to the "black liberation movement" and the Black Panther party. The Court did not accept the U.S. Government view that there was no evidence of political motivation in the hijacking, or of the accused's involvement in political movements. Concerning the U.S. request for return of Brown to serve the remainder of his prison sentence, the Court postponed consideration pending receipt of additional information from U.S. authorities.

Dept. of State File L/M. For a U.S. memorandum of law of Apr. 3, 1975, and a U.S. note to the French Foreign Ministry of July 7, 1975, in connection with another U.S. extradition request in a hijacking incident (the Holder-Kerkow case), see the 1975 Digest, pp. 168-175. Art. VI of the U.S.-France extradition treaty, as supplemented in 1970, provides:

Extradition shall not be granted in any of the following circumstances:

4. If the offense for which the individual's extradition is requested is of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character. If any question arises as to whether a case comes within the provisions of this subparagraph, the authorities of the Government on which the requsition is made shall decide.

Selective Service Offenses

In United States v. Salzmann, 417 F. Supp. 1139 (1976), the District Court for the Eastern District of New York on July 16, 1976, dismissed without prejudice the complaint against defendant who had been indicted for refusing induction. The dismissal was based on the Government's failure to give defendant a speedy trial. The Court found that the Government had failed to inform Salzmann, who was in Israel at the time he was called for induction, of travel assistance available to him; that it delayed 17 months between the time that defendant's case was referred to it by the draft board before obtaining an indictment; that during the next two and one-quarter years it failed to bring the defendant to trial; and that during the following two years the Government did not indicate readiness for trial. In these circumstances, the Court held that dismissal was required under the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, under the local speedy trial rule, under the Sixth Amendment, under the Federal rule relating to prosecutorial delay, and under the provision of the Selective Service Act (50 U.S.C. App. 462(a)) commanding prosecution as expeditiously as possible. District Judge Weinstein expressed the view that the United States Government was required to request Israel's cooperation in returning defendant for trial regardless of the fact that the U.S.Israel extradition convention of 1963 (TIAS 5476; 14 UST 1707) does not cover draft evasion. Excerpts from Judge Weinstein's opinion follow:

Our treaty with Israel does not require that country to surrender Salzmann. Article 21 of the Israeli Extradition Act prohibits surrender for offenses other than those specified if a treaty requires enumeration, as does the Extradition Convention Between Israel and the United States.

Even if the Federal Government lacks the legal right to demand extradition, it may be required by the due diligence clause to request surrender of the defendants. Unless the asylum country has explicitly denied a request for extradition as a matter of comity (or a request for deportation, which would ordinarily have the same effect), it cannot be assumed that such a request would be denied so that failure to make the request is failure to act with due diligence. . . . Every nation has the sovereign power, under international law, to extradite fugitives if it so elects.

The most widely recognized ground for refusing to cooperate with another country's attempts to obtain an accused is the recently developed political offense exception . . . . There is no reason to believe, however, that Israel would invoke this doctrine. From the record available so far, Salzmann's refusal to appear for induction was not politically motivated, but rather the result of financial

constraint. At no point did he state that he was protesting any policy of the government.

The Supreme Court has not ruled on the precise questions here involved whether the Federal Government is obligated to seek, through diplomatic channels, the return of the felony defendant who has fled to another country. It was held, though, in a speedy trial case, that when "two separate sovereignties" were involved, the former "had a constitutional duty to make a diligent, good-faith effort" to obtain the defendant who was incarcerated in the latter in order to bring the defendant to trial promptly, even though it had no legal right to demand the return of the defendant. ...

Although the extradition treaty between Israel and the United States does not cover selective service offenses, the history of informal cooperation between the two countries in producing fugitives negates any presumption that Israel would have refused to cooperate in returning Salzmann for trial if he were to refuse to return despite an offer of transportation. . .

The... case law and authorities along with the Government's failure to advise the Court, pursuant to the Court's order of May 19, 1976, of any policies or facts to the contrary, make it possible for the Court to judicially notice the following facts . . . :

1. Neither the United States [n]or the State of Israel characterizes violations of military conscription laws as political crimes.

2. The United States follows the policy and practice of endeavoring to procure the return to this country of some indicted defendants without resort to extradition treaties, but does not endeavor to procure the return to this country of defendants indicted for violation of the Selective Service laws or regulations. 3. Israel has produced persons pursuant to requests by the United States despite the fact that no extradition treaty mandated such cooperation.

4. There is a reasonable possibility that Israel would have cooperated in the return of Salzmann had it been asked to do so. In view of these findings, due diligence would require the government to request Israel's cooperation regardless of the fact that the extradition treaty does not cover Salzmann's alleged offense.

There is some ground to suspect that the Government's failure to pursue Selective Service delinquents with the same vigor as it pursues other fugitives may not be due to an evaluation of its chances for success, but rather may be due to policy. . . . A reason for the government's dilatoriness in prosecution of alleged draft offenders was no doubt the unpopularity of the Vietnam war both here and abroad. Allowing draft evaders and military deserters to remain fugitives created a safety valve for the discontented. Aggressively seeking their return and prosecuting them vigorously would have provided a focal point for even stronger antiAmerican demonstrations abroad and established a series of martyrs for the anti-war movement at home. Allowing those who were unwilling to serve in the armed forces to reside unmolested in

foreign countries was not only a humane policy, but also in the Government's best interest. In fact, it may have been so congruent with the national interest that the Government may have had very little choice in the matter.

Whatever the Government's reasons for seeking the return of war related fugitives less vigorously than other alleged felons, whether the reasons are valid or specious, the Government cannot take further advantage of its policy of disparate enforcement by seeking to use the unavailability exception to the six months trial readiness requirement. The benign neglect of selective service fugitives is not only at odds with the due diligence requirement but also at odds with the Speedy Trial Clause of the Constitution generally, and its implementing plans.

U.S.-Australia

Bilateral Treaties

On May 8, 1976, the U.S.-Australia Treaty of Extradition signed on May 14, 1974 (TIAS 8234; 27 UST 957), entered into force, replacing as between the two countries the U.S.-Great Britain Treaty of December 22, 1931 (TS 849; 47 Stat. 2122; applicable to Australia Aug. 30, 1935). On the same date extradition proceedings were begun in the U.S. District Court for the Northern District of California for the extradition to Australia of an individual whose extradition had been requested, and who had been apprehended, under the terms of the earlier treaty. The Court ruled the new treaty applicable to the case and issued a determination that the Australian documents constituting the request for extradition, which were adequate under the 1931 treaty, did not meet the standards of the 1974 treaty. He issued an order requiring the Australian authorities to provide additional documentation.

In response to an inquiry from the Department of Justice, Arthur W. Rovine, Assistant Legal Adviser for Treaty Affairs, Department of State, wrote, in a letter dated July 21, 1976:

In our judgment the 1974 treaty governs this extradition request, and the magistrate was therefore correct in requesting additional documentation insofar as such documentation is required by the 1974 treaty.

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There is no doubt that the 1974 treaty entered into full force and effect on May 8, 1976, pursuant to its own terms (Article XXI (2): .. thirty days after the exchange of instruments of ratification"). Article XXI (4) of the 1974 treaty provides that it shall terminate and replace the 1931 treaty as between the United States and Australia . . . . If the old 1931 treaty is to have continued application to an extradition action such as that here at issue, it must result from an explicit provision in the 1974 treaty, or a

reasonable interpretation of the 1974 treaty Moreover, this matter must be decided having in mind the principle embodied in 18 U.S.C. § 3181 et seq. to the effect that extradition of persons to a foreign country where they have allegedly committed crimes may appropriately take place only pursuant to and during the existence of a treaty of extradition with such foreign country.

Looking first to the provisions of the 1974 treaty, it appears that the contemplated extradition procedures pursuant to that treaty are not limited to those offenses alleged to have been committed only after the entry into force of that treaty. Neither article I nor article II imposes such a limit of time. Article VI of the 1974 convention addresses sufficiency of evidence and would presumably permit a statute of limitation to bar extradition in some instances. However, that article does not inherently limit the application of the 1974 treaty to offenses committed after the entry into force of the 1974 treaty.

It would appear from its terms that the intention of the 1974 treaty is to establish the scheme under which all extraditions will be conducted on and after the date of entry into force of that treaty, including extraditions requested as a result of offenses committed before its entry into force. . . .

We do not believe that sound interpretation of the 1974 treaty permits a different conclusion. The treaty begins by referring in article I to the agreement to"... deliver up ." certain persons in prescribed circumstances. Again in article II (1), "Persons shall be delivered up..." according to specified terms. In paragraphs (2) through (5) of article II the reference is to "extradition," though it appears that the two expressions are intended to have the same meaning. Indeed the two expressions seem to be used interchangeably throughout the treaty. It is clear, looking at the whole of the treaty, that it is intended to govern the "extradition" or "delivering up" of the persons specified under prescribed circumstances.

In this case, the Court may find continuing application of the 1931 treaty only by finding that "extradition" or "delivering up" had so far progressed under the 1931 treaty as to oblige the Court to hold that, for the purposes of this case, "extradition" or "delivering up" had effectively taken place during the life of that treaty.

While the terms "extradition" and "delivering up" are not defined in the 1974 treaty, I believe that the plain meaning and the normal usage of these terms is the actual change of physical custody of the person being sought from the authorities of the requested state to the authorities of the requesting state. The expression "delivering up" would appear susceptible of no other meaning and "extradition" is likewise commonly understood (Black Law Dictionary defines "extradition" as "The surrender by one state of an individual . . .”).

It may reasonably be argued that these terms refer to a larger process and that extradition may be said to have occurred at some time before the physical surrender of the person-for example at the point when the person has been finally ruled extraditable. Without lengthy discussion of that issue, however, it is clear that [in this case] the extradition proceedings had just begun. Neither "extradition" nor "delivering up" (if they are different) had