FRIENDLY, Circuit Judge:
This appeal by the United States and an alternative request by it for mandamus consolidated therewith
The requested extradition was based upon Mackin's indictment in Northern Ireland on charges of attempted murder, on March 16, 1978, of a British soldier, Stephen Wooton, in Andersonstown, Belfast, Northern Ireland; wounding Wooton with intent to do grievous bodily harm, contrary to Section 18 of the Offenses Against the Person Act of 1861; and possession of firearms and ammunition with intent, in contravention of Section 14 of the Firearms Act (Northern Ireland) 1969. Mackin was arrested in Northern Ireland after the incident but was released on bail and failed to appear for trial there, entered the United States illegally and was apprehended by the Immigration and Naturalization Service.
After taking extensive evidence, receiving briefs and hearing argument, the Magistrate delivered a lengthy and thorough opinion. She concluded that the United Kingdom had satisfied its burden, under Article IX(1) of the Treaty, of producing evidence "sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party ..." with respect to the first and third of the offenses charged.
The Magistrate pointed to cases holding or indicating that the political offense exception is not limited to "purely" political offenses against a government, such as treason, sedition and espionage, but extends also to "relative" political offenses, to wit, crimes against persons or property which are incidental to a war, revolution, rebellion or political uprising at the time and site of the commission of the offense, see Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896); In re Castioni,  1 Q.B. 149 (1890); In re Meunier,  2 Q.B. 415 (1894); In re Ezeta, 62 F. 972, 977-1002
As indicated above, the United States has appealed from the Magistrate's decision to deny the request of the United Kingdom, and in the alternative has sought mandamus to require her to grant the request. In addition to challenging the Magistrate's conclusion that Mackin's crime was "of a political character", the Government contends that decision whether an offense falls within Article V(1)(c)(i) is committed exclusively to the executive branch. Mackin contends that the Magistrate's order is not appealable because it is not a final decision of a district court of the United States within 28 U.S.C. § 1291 and that this court lacks power to issue a writ of mandamus under 28 U.S.C. § 1651 because of the requirement in that section that such issuance must be "necessary or appropriate in aid of ... [an issuing court's] jurisdiction and agreeable to the usages and principles of law." If a contrary view should be taken on either of these points, Mackin contends that the applicability of Article V(1)(c)(i) is a question for the judicial branch and that the Magistrate's decision on the merits of that issue was correct.
Discussion of the appealability of orders granting or denying requests for extradition must go back as far as In re Metzger, 46 U.S. (5 How.) 176, 12 L.Ed. 104 (1847) — a case decided just prior to enactment of the predecessor of the present extradition statute and which doubtless led to that statute's adoption, see notes 6 & 8, infra. Although the extradition treaty with France there at issue, 8 Stat. 580 (1848), unlike the Webster-Ashburton Treaty of the previous year with Great Britain, made no provision that the person whose extradition had been requested should be brought before a judge or magistrate "to the end that the evidence of criminality may be heard and considered", President Polk and Secretary of State Buchanan elected to submit the French Government's extradition request to Judge Betts of the District Court for the Southern District of New York, who, after a hearing, committed Metzger to custody to await the order of the President, see In re Metzger, 17 Fed.Cas. 232 (No. 9511) (D.C.S.D.N.Y.1847). Although the Supreme Court thought that in seeking a hearing before a judicial officer the executive had acted "very properly, as we suppose", 46 U.S. (5 How.) at 188-89, it concluded that the case "was heard and decided by the district judge at his chambers, and not in court" id. at 191. In that role the district judge was exercising "a special authority, and the law has made no provision for revision of his judgment. It cannot be brought before the District or Circuit Court; consequently it cannot, in the nature of an appeal, be brought before this court." Id. at 191-92. Since the Supreme Court thus had no appellate jurisdiction, under the most famous of constitutional decisions it likewise could not issue a writ of habeas corpus on Metzger's behalf. Thus the doctrine of the unappealability of extradition decisions by judges and magistrates was born.
That question arose in In re Kaine, 55 U.S. (14 How.) 103, 120, 14 L.Ed. 345 (1852). Kaine was charged by the British Government with a murder in Ireland, apparently in a case having political overtones. Id. at 114-15. The request for extradition was made by the British Consul in New York and heard by a United States commissioner who ordered Kaine to be committed. The Circuit Court declined to issue habeas corpus, and Kaine sought to bring these rulings before the Supreme Court in a number of ways. Justice Curtis, concurring in a careful opinion, concluded that the Commissioner's action was unreviewable on appeal for the reason that, like the judge in Metzger and despite the 1848 statute, he was not exercising "any part of the judicial power of the United States", id. at 119; that the refusal of the Circuit Judge to issue a writ of habeas corpus could not be reviewed since it was not the cause of Kaine's commitment; and that the Supreme Court could not issue the writ on its own account since this would be a prohibited exercise of original jurisdiction.
The decision in Kaine that the Act of August 12, 1848, was not intended to alter the holding in Metzger regarding the non-appealability
and suggested that the foreign government submit a new request. Further evidence of the nonappealability of orders granting extradition can be found in a Report of the Senate Judiciary Committee on the nation's extradition laws. S.Rep.No.82, 47th Cong., 1st Sess. (1882).
The Government suggests that the basis for the nonappealability of extradition orders was altered by the creation of the courts of appeals by the Act of March 3, 1891, 26 Stat. 826, since these courts are not subject to the constitutional limitations confining them to appellate jurisdiction which played a part in the Metzger decision and in Justice Curtis' opinion in Kaine. This, however, relates to the ability of the courts of appeals to exercise original jurisdiction over petitions for writs of habeas corpus, and not to the appealability of decisions under § 3184. It is thus not surprising that courts at every level have continued to state that decisions, even when made by district courts, denying or granting requests for extradition are not appealable under 28 U.S.C. § 1291. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Caplan v. Vokes, 649 F.2d 1336, 1340 (9 Cir. 1981); Abu Eain v. Wilkes, 641 F.2d 504, 508 (7 Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Antumes v. Vance, 640 F.2d 3, 4 n.3 (4 Cir. 1981); Matter of Assarsson, 635 F.2d 1237, 1240 (7 Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 325 (1981); Gusikoff v. United States, 620 F.2d 459, 461 (5 Cir. 1980); Brauch v. Raiche, 618 F.2d 843, 847 (1 Cir. 1980); Hooker v. Klein, 573 F.2d 1360, 1364 (9 Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2 Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976); Greci v. Birknes, 527 F.2d 956, 958 (1 Cir. 1976); United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 729-30 (9 Cir. 1975); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2 Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973); Sayne v. Shipley,
Despite the Government's argument in this case, the general belief with respect to the unappealability of extradition orders has been very recently shared by the Department of Justice and the Department of State. On September 19, 1981, Senator Thurmond, along with several colleagues, introduced "a bill developed over the past 2 years in close cooperation with the Department of Justice and the Department of State to modernize the extradition laws of the United States." 127 Cong.Rec. S9952. Among many other features, the proposed Extradition Act of 1981 confines to the Attorney General the right to file a complaint charging that a person is extraditable to a foreign country, § 3192(a), provides that this may be done only in a United States district court, id., directs that the court certify to the Secretary of State its findings with respect to extraditability, § 3194(e), provides for appeals of such findings to the appropriate United States court of appeals, § 3195(a), and limits the extraditee's rights to seek review by other means, § 3195(c). Secretary of State Haig expressed the particular pleasure of the Department over several provisions of the bill, including one "which for the first time permit[s] appeal from a district court's decision on an extradition request (section 3195)", 127 Cong.Rec. S9953. A legal memorandum accompanying the proposed bill stated in unequivocal terms, 127 Cong.Rec. S9957:
At a hearing held on October 14, 1981, before the Senate Judiciary Committee, Michael Abbell, Director, Office of International
Daniel W. McGovern, Deputy Legal Adviser of the Department of State, said
It is true, of course, that efforts by the Government to resolve an ambiguity in legislation in its favor should not preclude it from arguing, if the efforts have not yet succeeded, that the legislation should be construed in the manner which it asked Congress to make clear. Wong Yang Sung v. McGrath, 339 U.S. 33, 47, 70 S.Ct. 445, 452, 94 L.Ed. 616 (1950); United States v. Southwestern Cable Co., 392 U.S. 157, 169-70, 88 S.Ct. 1994, 2000-2001, 20 L.Ed.2d 1001 (1968); Sands, 2A Sutherland Statutory Construction § 49.10 at 261 (1973). But here the executive branch did not tell Congress that the law was uncertain and would benefit from clarification; it said flatly that the law was the exact opposite from what it contends in this case and that the law needed to be changed. Beyond this, and apart from the massive authority we have cited, what the Government told Congress was right and what it argues to us is wrong.
The only conceivable basis for appellate jurisdiction over orders granting or denying extradition is section 1291 to Title 28 which authorizes appeals to the courts of appeals from "final decisions of the district courts of the United States". In contrast, § 3184 proceedings are to be conducted by "any justice or judge of the United States, or any magistrate authorized so to do by courts of the United States or any judge of a court of record of general jurisdiction of any State". Decisions have noted the difference between § 3184's references to "judges", "justices", and "magistrates" and § 1291's reference to "district courts". Jimenez v. Aristeguieta, 290 F.2d 106, 107 (5 Cir. 1961); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2 Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973). Even when the decision to grant or deny is by a district judge, this still is not a decision of a district court within 28 U.S.C. § 1291. See Jimenez v. Aristeguieta, supra, 290 F.2d at 107. Although the distinction was criticized by the dissenting judge in that case, it goes back to the Supreme Court's 1847 decision in In re Metzger, supra, and we approved of it in Shapiro v. Ferrandina, supra, 478 F.2d at 901 & n.3. It is even clearer that the decision of a magistrate is not a final decision of a district court; when Congress has desired to permit an appeal from a decision of a magistrate directly to a court of appeals, it has said so. 28 U.S.C. § 636(c)(3). There is still greater difficulty in considering the decision of a state judge to be a final decision of a district court. Yet it would be curious if such decisions were nonappealable whereas the decision of a United States judge or magistrate was.
The Government's alternative petition for mandamus under 28 U.S.C. § 1651 encounters, as an initial obstacle, the argument that issuance of the writ is not "necessary
We have considered somewhat similar questions in United States v. Dooling, 2nd Cir., 406 F.2d 192, 197, cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969) and United States v. Weinstein, 2nd Cir., 452 F.2d 704, 708-13 (1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972). In Dooling we issued a writ to compel a district judge to sentence convicted defendants rather than to pursue a course, indicated by him, of dismissing the indictment upon grounds which were in part considered and rejected without leave to renew before trial by another district judge. We considered it not to be a fatal obstacle to issuance of the writ that the Government might not have been able to appeal if the judge had proceeded as he had intended, 406 F.2d at 198. In Weinstein we issued mandamus requiring a district judge to vacate an order dismissing an indictment after having entered a judgment of conviction although the Government could not have appealed under then existing law and the defendant obviously would not. We concluded "that the phrase `in aid of their respective jurisdictions' should not be read so as to prohibit [the courts of appeals] ... from vacating orders, in actions generally subject to their supervision, that were beyond the power of the lower court to make, even though in the particular case there was no frustration of an appeal." 452 F.2d at 711. Quite recently the Third Circuit has upheld its power to issue a writ of mandamus to consider whether the District Court of the Virgin Islands lacked, as it thought, legal authority to convene an investigatory grand jury although no case arising from action of the putative grand jury was or, in the nature of things, could be before the court. United States v. Christian, 3rd Cir., 660 F.2d 892. We thus assume, at least arguendo, that mandamus could issue here if other tests with respect to that extraordinary remedy were met.
We have discussed the standards governing issuance of the writ in a number of recent cases, e.g., American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 280-82 (2nd Cir. 1967); Investment Properties International, Ltd. v. IOS, Ltd., 459 F.2d 705, 707 (2nd Cir. 1972); Kaufman v. Edelstein, 539 F.2d 811, 816-19 (2nd Cir. 1976); National Super Spuds, Inc. v. New York Mercantile Exchange, 591 F.2d 174, 181 (2nd Cir. 1979); and In re Attorney General of the United States, 596 F.2d 58 (2nd Cir. 1979). While some of these cases granted the writ and others denied it, all the opinions agree that mandamus is reserved for "exceptional cases", whatever that may mean, and, more informatively, that "the touchstones are usurpation of power, clear abuse of discretion and the presence of an issue of first impression." American Express Warehousing, supra, 380 F.2d at 283.
The only issue here raised by the Government which might qualify under these standards is its claim that the Magistrate exceeded
The Magistrate's jurisdiction to decide the political offense question
The Government's argument that the Magistrate had no jurisdiction to decide the political offense question begins with the language of the Treaty. Article V(1)(c)(i) speaks of an offense which "is regarded by the requested Party as one of a political character." As a matter of the ordinary meaning of language, "the requested Party" would seem in this case to be the Government of the United States, represented, as is uniformly true in matters of foreign relations, by the President, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20, 57 S.Ct. 216, 220-21, 81 L.Ed. 255 (1936); L. Henkin, Foreign Affairs and the Constitution 45-50, 93 (1972), and not by a judicial officer. The Government asserts that this construction is reinforced by other provisions of the Treaty, notably Articles XIV(1) and XI(1), where it claims the term "requested Party" must mean the Government of the United States and not the courts.
The Government's argument ignores the fact that the "new" language or an equivalent has been used in United States treaties at least since the turn of the century. The Extradition Treaty with Peru, 31 Stat. 1921
The Government's textual argument also ignores the existence of numerous treaties whose language explicitly envisions that courts will decide the political offense question. For example, a 1932 extradition treaty with Greece provides that "[t]he State applied to, or courts of such State, shall decide whether the crime or offense is of a political character", 47 Stat. 2185. See also Treaty Concerning the Mutual Extradition of Criminals with Czechoslovakia, 44 Stat. 2367 (1925); Treaty of Extradition with Albania, 49 Stat. 3313 (1935); Treaty for the Extradition of Fugitives from Justice with Austria, 46 Stat. 2779 (1930). The Government has suggested no reason, and we are unable to envision any, why courts should determine political offense questions under some treaties, but not under others. If the State Department had wanted to change the rule reflected in the above treaties and in the cases cited infra, it would hardly have done so on a piecemeal basis in treaties with individual foreign states and without disclosing its intention to the Senate.
The Government seeks to buttress its textual argument with arguments of policy and analogy. It calls attention to decisions that determination whether a case falls within the exception provided by Article V(i)(c)(ii), to wit, that "the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offense of a political character" lies solely with the executive branch. See In re Lincoln, 228 F. 70, 73-74 (E.D.N.Y.1915), aff'd per curiam, 241 U.S. 651, 36 S.Ct. 721, 60 L.Ed. 1222 (1916); Garcia-Guillern v. United States, supra, 450 F.2d at 1192; In re Gonzalez, 217 F.Supp. 717, 722 (S.D.N.Y.1963). Recognizing the latter principle, the Seventh Circuit in Abu Eain, supra. 641 F.2d at 516-17, perceived no inconsistency between confiding to the courts a decision with respect to past facts and refusing to allow them to probe the motives of a requesting government — a conclusion with which we agree. The Government notes that a judicial decision on the political offense exception may cause difficulties in this country's foreign relations; such difficulties would exist also, indeed might be heightened, if decision were placed solely in the executive branch, unless the political offense exception were to be eviscerated in practice in the case of extradition treaties with nations with which we are allied or whose favor we especially desire. See also I. A. Shearer, Extradition in International Law 197-98 (1971). The Government relies on cases such as The Three Friends, 166 U.S. 1, 17 S.Ct. 495, 41
Moreover, whatever we might decide if we were writing on a clean slate, the rock on which the Government's arguments shatter is the long-standing recognition that courts shall determine whether a particular offense comes within the political offense exception. This principle was in existence at least as long ago as when In re Kaine, supra, was decided in 1852. Four years after enactment of the Act of August 12, 1848, Justice Catron, speaking for four members of the Supreme Court, wrote that "extradition without an unbiased hearing before an independent judiciary ... [is] highly dangerous to liberty, and ought never to be allowed in this country", In re Kaine, supra, 55 U.S. (14 How.) at 113. Although this statement is directed at extradition proceedings in general and not specifically at the political offense issue, Justice Catron's opinion gives no indication that the political offense issue ought to be treated differently from other issues at the extradition hearing. More importantly, an example cited by Justice Catron, relating to the alleged mistreatment of one Jonathan Robbins, suggests that the members of the Court joining in his opinion were of the view that "an unbiased hearing before an independent judiciary" was particularly necessary in cases where the political offense exception is at issue.
In 1799 Jonathan Robbins (also variously referred to as Thomas Nash and Nathan Robbins) was surrendered by the United States to British naval officials, pursuant to Article 27 of Jay's Treaty. The British sought Robbins' extradition for a murder allegedly committed aboard a British naval vessel. Jay's Treaty contained no provision regarding the procedure to be followed in extradition cases, and at the time there was no legislation on the subject. Believing he had a relatively free hand, President Adams arranged the delivery of Robbins by instructing District Judge Bee of South Carolina to hand the extraditee over to the British. Adams' action caused an extraordinary national outcry. See, e.g., 10 Annals of Congress 580-640 (1800). As Professor Moore notes, "[t]he case created great excitement, and was one of the causes of the overthrow of John Adams' administration." 1 Moore, Extradition 550-51 (1922); see also In re Kaine, 55 U.S. (14 How.) at 111-12. The outcry against Adams' action seems to have arisen, in large part, from the widespread perception that Robbins was an American seaman who had been impressed into the British navy and that the murder for which he was charged had occurred either in the course of a mutiny or while fleeing from the British in an escape attempt. See Speech of John Marshall, 10 Annals of Congress 613 (1800), reprinted in, 18 U.S. at 5 Wheat, App. 201, 204-05, 215 (1820). Robbins' supporters apparently conceded that he had committed a murder, yet argued that a murder committed in fleeing from illegal impressment should not be extraditable.
Although the term "political offense" was not current at the time, and apparently was not used in the debates surrounding the Robbins case, 10 Annals of Congress 580-640 (1800), the argument made on Robbins' behalf bears many resemblances to the political offense doctrine. In both instances an otherwise extraditable crime is thought to be rendered nonextraditable by the circumstances surrounding its commission and by the motives of the criminal. Significantly, in later years the Robbins case came to be regarded as centering on the political offense question. As Justice Nelson wrote in Ex parte Kaine, 14 Fed.Cas. 78, 81 (No.
The circumstances of the Robbins case described above assume importance because, as Justice Catron noted in In re Kaine, supra, "[t]hat the eventful history of Robbins' case had a controlling influence on our distinguished negotiator [Daniel Webster], when the Treaty of 1842 was made; and especially on Congress, when it passed the Act of 1848, is, as I suppose, free from doubt." 55 U.S. (14 How.) at 112. With the Robbins case thus firmly in the legislature's mind, it is difficult to avoid the conclusion that when Congress charged commissioners and judges with determining whether evidence exists to "sustain [a] charge under the provisions of ... [a] treaty", 9 Stat. 302, sec. 1, it had no intention of silently excepting the political offense issue from the magistrates' consideration. Rather, the combination of the view that the Robbins case involved the political offense question, and the perception that extradition without judicial oversight was "highly dangerous to liberty and ought never to be allowed in this country", In re Kaine, supra, 55 U.S. (14 How.) at 113, strongly suggests that it was precisely the political offense question that was of the greatest concern to Congress in passing the Act of August 12, 1848. This view is buttressed by the references to the political offense issue in the debates on the act, see Cong. Globe, July 28, 1848 (remarks of Mr. King and Mr. Bedger).
We recognize that Justice Nelson's later opinion as a Circuit Judge in Ex parte Kaine, supra, 14 Fed.Cas. at 81, contained language suggesting that decisions concerning the political offense exception are solely for the executive branch. Justice Nelson wrote "the surrender, in such cases, involves a political question, which must be decided by the political, and not by the judicial, powers of the government. It is a general principle, as it respects political questions concerning foreign governments, that the judiciary follows the determination of the political power, which has charge of its foreign relations, and is, therefore, presumed to best understand what is fit and proper for the interest and honor of the country." We think Justice Nelson misunderstood the import of the Robbins incident, and that Justice Catron's view of the mistrust of exclusion of the judiciary from the extradition process is a far sounder interpretation of the views of the times. Moreover, this view is more consistent with the concern with individual liberties that formed the basis for Justice Nelson's dissenting opinion in In re Kaine, supra, 55 U.S. (14 How.) at 141-42, 147. If there is to be a change in this, the alteration should come from Congress.
The doctrine that decisions with respect to the political offense exception is for the courts was also recognized in In re Castioni, supra,  1 Q.B. 149, although, as the Government points out, there was no need to address the question there since the British Extradition Act of 1870 provided a defense to any person who could "prove to the satisfaction of the ... magistrate or the Court before whom he is brought on habeas corpus, or to the Secretary of State, 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." 33 & 34 Vict., c. 52, § 3(1). In In re Ezeta, 62 F. 972 (N.D.Calif.1894), the court assumed that it had power to determine whether the offense was political. It evidently regarded this as part of its duty, imposed by 18 U.S.C. § 3184, to hear and consider the evidence of criminality and to determine whether there is evidence "to sustain the charge under the provisions of the treaty". In Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896), the Supreme Court reversed a ruling by a district judge discharging, as a political offender, a person whom a magistrate had found not to be one; the Court expressed no disapproval at the magistrate's having decided the question, although saying, id. at 512, 16 S.Ct. at 692, that "[t]he contention that the right of the executive authority to determine what offenses charged are or are not purely political
One reason for the lack of discussion is that the position that the judicial officers designated in § 3184 lack power to determine whether the offense was political is a new one for the executive branch. In 1908, a foreign ambassador wrote to the Secretary of State, proposing that a provision be included in the extradition treaty about to be entered into, whereby the political offense determination would be made by the courts of the requested country. In response, Secretary Elihu Root wrote:
Letter from Secretary of State Root, dated June 12, 1908; quoted in 4 G. Hackworth, Digest of International Law 46 (1942). In 1960 the Assistant Legal Adviser to the Department of State wrote a United States Attorney:
Letter of State Department Assistant Legal Advisor to U.S. Attorney, dated June 22, 1960, concerning In re Mylonas, 187 F.Supp. 716 (N.D.Ala.1960); cited in 6 M. Whiteman, Digest of International Law 842-853 (1968).
citing in n.56 four of the cases cited above. An almost identical statement was made by Deputy Legal Adviser McGovern, p. 4.
It follows that, as the law now stands, both the judicial and the executive branches have recognized that, under § 3184, decision whether a case falls within the political offense exception is for the judicial officer. The Government cites us to no overriding principle which dictates a contrary result. The Court said in Baker v. Carr, 369 U.S. 186, 211, 212, 82 S.Ct. 691, 706, 707, 7 L.Ed.2d 663 (1962), that "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance" and "a court can construe a treaty and may find it provides the answer." While the policy arguments made by the Government are not without force, particularly in an age of spreading terrorism, they are not so overwhelming as to justify us in concluding that the 1848 statute and its successors did not mean that the judicial officer should decide whether the offense for which extradition is sought is political. Whether the national interests would be better served by the position here advocated by the executive branch, which it has asked Congress to adopt in S. 1639, is for that body to determine. We therefore conclude that the Magistrate correctly sustained her own power to decide the political offense question and thus, for reasons heretofore explained, there is no basis for our issuing mandamus.
Mackin's Habeas Corpus Petition
Immediately after the Magistrate's decision the Government refiled its extradition request before District Judge Sand in accordance with the procedure recognized in Hooker v. Klein, supra, 573 F.2d 1360, and applied for a new warrant of arrest. Believing that the question of appealability should be resolved before action by him the judge held this request in abeyance pending a request for a stay to the Magistrate. She granted such a stay pending application to this court for a stay pending expedited appeal, which this court granted. Before we granted the stay, Mackin filed a petition for habeas corpus with this court and a motion for immediate release. Since our stay of the Magistrate's decision will terminate upon the coming down of the mandate, unless the Government should request and we should see fit to grant an extension of the stay pending application for certiorari or the decision of the renewed application before Judge Sand
This need not detain us long. The statute, 28 U.S.C. § 2241, provides that writs of habeas corpus may be granted by "the Supreme Court, any justice thereof, the district courts, and any circuit judge within their respective jurisdictions." A court of appeals is conspicuously absent from this list. It has repeatedly been held that courts of appeals have no jurisdiction to entertain petitions such as Mackin's. Posey v. Dowd, 134 F.2d 613 (7 Cir. 1943); Jensen v. Teets, 219 F.2d 235 (9 Cir. 1955); Loum v. Alvis, 263 F.2d 836 (6 Cir. 1959); Parker v. Sigler, 419 F.2d 827 (8th Cir. 1969). See also FRAP 22(a) and accompanying Notes of Advisory Committee on Appellate Rules.
The Government's appeal is dismissed for lack of jurisdiction. Its alternative application for mandamus is entertained solely on the issue of the Magistrate's jurisdiction to rule on the political offense exception and is otherwise dismissed; the portion entertained is denied on the merits. Mackin's petition for habeas corpus is dismissed for want of jurisdiction. Mackin may recover his costs.
Justice Nelson's lengthy dissent, joined by Chief Justice Taney and Justice Daniel, apparently predicated jurisdiction on the Circuit Court's refusal to issue a writ of habeas corpus; he thought that decision to be "a proper subject to review by this court, by virtue of the writ of habeas corpus." 55 U.S. (14 How.) at 148. On the merits he held that the request must be presented through diplomatic channels and that the Commissioner had no power to act because he had not been specially authorized to do so by a court of the United States.
Again the extraditee had the last laugh. Justice Nelson, sitting as Circuit Judge, later ordered Kaine's release on the grounds, inter alia, that there had been insufficient evidence of Kaine's criminality. Ex parte Kaine, 14 Fed.Cas. 78 (No. 7597) (C.C.S.D.N.Y.1853).
The Act of February 5, 1867, 14 Stat. 385, ultimately vindicated Justice Nelson's position on habeas corpus appealability by providing for an appeal from final decisions of the circuit courts on petitions for habeas corpus. See Benson v. MacMahon, 127 U.S. 457, 8 S.Ct. 1240, 32 L.Ed. 234 (1888); In re Luis Oteiza y Cortes, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464 (1890).
It is notable that the citation of In re Kaine, supra, in the Attorney General's opinions was to Justice Curtis' concurring opinion, which the Department of Justice evidently regarded as embodying the correct view. 6 Op.Atty.Gen. 91, 96; 10 Op.Atty.Gen. 501, 506.
Article XIV(1) of the treaty provides "[t]he requested Party shall make all necessary arrangements for and meet the cost of the representation of the requesting Party in any proceedings arising out of a request for extradition." It does this provision no violence to read it as fixing the international legal obligations of the United States and Great Britain without speaking to the manner in which each nation goes about meeting these obligations as a domestic matter.
Against this Mackin argues that the Government's equation of "the requested Party" with the executive branch does not fit Article V(2) which provides that extradition may be refused on any ground specified by "the law of the requested Party". This same argument applies to the numerous references in the treaty to "the territory of the requested Party", e.g., Arts. VI, VII, VIII, and IX. Likewise, Article VII(5)(a) speaks of certification of arrest warrants by "a judge, magistrate or other competent authority of the requesting Party", a usage inconsistent with the notion that "requested Party" refers specifically to the executive branch.