Congress readies new guidelines for US extradition laws

Washington wants to make it easier for the US legal system to decide whether or not to grant another country's request to send a citizen back home.

All 90 existing US bilateral extradition treaties exempt from return those sought for political offenses. The aim is a guarantee of US neutrality in the internal political disputes of foreign countries.

But deciding what is or is not a political offense, an action that can have far-reaching foreign policy implications, has become an increasingly tough job for the court system of the United States.

Accordingly, Capitol Hill may soon pass along a new set of guidelines to help the courts reach fairer and more consistent judgments.

It was considerably easier for the courts to make these sensitive decisions in days when political dissent was largely confined to such relatively passive forms of protest as treason and sedition. Terrorist acts committed in the guise of furthering a political cause have made the job much tougher. Consider this contrast:

* Britain requested the return for trial of Peter John McMullen, an Irish Republican Army member charged with the bombing of a British military barracks, in which one civilian was killed. But a federal court in California decided in May 1979 that he was not extraditable because of the political context of the crime. Mr. McMullen, who had come to the US on a false passport, ultimately was granted asylum.

* Israel requested the return for trial of Ziad Abu Ein, a young West Bank Palestinian charged with planting a bomb in a Tiberius marketplace which killed two children. His lawyers argued in extradition hearings that dragged on for more than two years that the offense was political, that Mr. Abu Ein had evidence to prove that he was elsewhere on the day of the crime, and that he was convinced he would not receive a fair trial in Israel. But a federal court in Chicago ruled the charge concerned a common rather than a political crime. Mr. Abu Ein, who was then extradited, in June received a life sentence from an Israeli three-judge panel at the close of his trial.

Such variation in court rulings is adding fresh momentum to efforts to reform this country's somewhat antiquated extradition law.

The State Department, which has long been concerned that under present law the US could evolve into a ''haven for terrorists,'' at first wanted to give itself the exclusive power to decide what is or is not a political deed. Indeed, the Chicago court that ruled on Mr. Abu Ein's case had taken the unprecedented step of asking the State Department to testify and appeared to lean heavily on the department's views.

Both the Carter and the Reagan administrations proposed, via lawmakers on Capitol Hill, that the authority for determining whether or not the offense was political be taken from the courts and put exclusively in the hands of the secretary of state.

''Certainly it hurts US foreign relations when we cannot deliver under an extradition treaty a fugitive we're convinced is a terrorist,'' explains State Department deputy legal adviser Daniel W. McGovern.

But human-rights and civil-liberties groups viewed the proposed shift as eroding the constitutional rights of the accused. They warned that the secretary could be subject to intense political pressure and that extradition might easily become a foreign policy tool.

But when the administration's bill acquired an amendment that would subject the secretary of state's decisions to judicial review, State Department enthusiasm for the proposal began to wane.

Now the proposed change in the law, which has been moving rapidly through Congress and is expected to get an affirmative vote in both houses before the October recess, would leave the extradition decisionmaking process with the courts but would offer new guidelines on what is not a political offense. That list of deeds, which could not block extradition, would include airline hijacking, narcotics trafficking, and, except under extraordinary circumstances, crimes such as kidnapping, murder, rape, and those that involve use of a gun.

As he can now, the secretary of state, under the new legislation, could still block extradition if he felt humanitarian concerns or the political motivation of the requesting state required it.

Officially, the Reagan administration has taken no position on the compromise legislation now gaining ground. But most experts in the field view the guidelines, which could result in fairer, more consistent rulings, as an improvement over the status quo.

While most civil libertarians are pleased that the political offense exception will still be decided in court, many view the guidelines offered as much too broad. Under them, anyone taking up arms against an occupier or oppressor who then comes to this country would be considered a common criminal and extraditable, says Abdeen Jabara, a Detroit lawyer who was a member of Abu Ein's US defense team.