Is the United States to become a "haven for terrorists" or a country that extradites foreigners on the flimsiest of pretexts, endangering their human rights?
These are the questions being asked in a case involving a Palestinian, jailed in Chicago for more than a year, who is wanted by Israel on terrorist charges.
And the answer depends on whether is listening to the US State Department r to former US Attorney General Ramsey Clark and varied Palestinian and human rights groups.
The State Department contends that there are ample grounds, includign signed confessions from alleged accomplices, for extraditing 20-year-old Ziad Abu Eain, as Israel requests, and that to do otherwise could make this country a "haven for terrorists."
Mr. Clark, arguing for the defense, says that the evidence is insufficient and that the charge in any event concerns a "political" act, which by definition is exempt from the 1962 US-Israeli extradition treaty.
Mr. Abu Eain, who was arrested by the FBI in August 1979 when he was visiting a sister in Chicago, allegedly planted a bomb in a trash can in the resort city of Tiberius on May 14, 1979, say Israeli officials. The explosion killed two boys and injured 36 others. They insist they have signed confessions in hand to back up the charge.
Clark, a lawyer now active in human rights cases, says that the text of the confessions is in Hebrew, not Arabic, that they were obtained under "inherently coercive" circumstances, and that they have since been retracted. Furthermore, he argues, no less than 12 other witnesses have signed statements insisting that at the time of the explosion, Abu Eain was actually 120 miles away attending the birth of a nephew in a Ramallah hospital.
The case now rests with the US Court of Appeals in Chicago.An initial court ruling last December held that the defendant was extraditable under the law.
At issue for the US court now is not the guilt or innocence of the defendant but whether there is enough evidence on the charge to warrant sending him back and whether the charge concerns a political act or a common crime.
On the State Department's behalf, US Attorney Thomas Sullivan contends that the deed in question was "cowardly" and no more than a common crime. Clark, condemning terrorism but noting that "one man's terrorist is another man's freedom fighter," suggests that the deed, even if committed by the defendant, occurred on the anniversary of Israel's independence and thus was political. "What other possible motive could there be but to change the political system?" asks Clark.
Both sides agree that whatever the judicial decision, the results are likely to be far- reaching.
If extradition is denied, the case " would set an extreme harmful precedent," insists State Department assistant legal adviser Louis Fields. He notes that the political exception that exists in most bilateral extradition treaties usually has been interpreted to include "passive" acts such as treason or sedition.
A key State Department concern is the apparent broadening of that definition in the decision reached in a California court May 1979 in the case of Peter John Gabriel McMullen, a former member of the provisional wing of the Irish Republican Army who arrived in San Francisco under false passport. Great Britain had requested his extradition from the US on grounds that he set a bomb in a military barracks on the British Isles, killing one civilian. The court ruled it a "relative" political offense for which Mr. McMullen could not be extradited.
Arguing that it is "bad enough to have the McMullen precedent," Mr. Fields concedes that the State Department is concerned that the US could become a terrorist refuge if the definition of political acts is broadened to include terrorism.
Clark, on the other hand, says that any decision to extradite Abu Eain could have profound human rights implications. Third party confessions, he says, must not be allowed to substitute for the process of fact-finding and criminal justice.
"The result is to make the individual human being a mere pawn," he says.