Full opinion text
REINHARDT, Circuit Judge: Pursuant to 18 U.S.C. § 3184 (1982) and the governing treaty between the United States and the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), Extradition Treaty of June 8, 1972, United States — United Kingdom, 28 U.S.T. 227, T.I.A.S. No. 8468 [hereinafter cited as Treaty ], the United Kingdom seeks the extradition of William Joseph Quinn, a member of the Irish Republican Army (“IRA”), in order to try him for the commission of a murder in 1975 and for conspiring to cause explosions in London in 1974 and 1975. After a United States magistrate found Quinn extraditable, Quinn filed a petition for a writ of habeas corpus. The district court determined that Quinn cannot be extradited because a long-standing principle of international law which has been incorporated in the extradition treaty at issue — the political offense exception— bars extradition for the charged offenses. The United States government, on behalf of the United Kingdom, appeals. This ease requires us to examine the parameters of a foreign sovereign’s right to bring about the extradition of an accused who maintains that the offenses with which he is charged are of a political character. Ultimately we must determine whether the political offense exception is applicable to the type of violent offenses Quinn is alleged to have committed. We undertake this task with the aid of very little helpful precedent. The United States Supreme Court has discussed the political offense exception only once, and then during the nineteenth century. See Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896). The only time we considered the subject, see Karadzole v. Artukovic, 247 F.2d 198 (9th Cir.1957), the Supreme Court vacated our opinion, see Karadzole v. Artukovic, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958) (mem.), an opinion which, in any event, has subsequently been roundly and uniformly criticized, see Eain v. Wilkes, 641 F.2d 504, 522 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Garcia-Mora, The Nature of Political Offenses: A Knotty Problem of Extradition Law, 48 Va.L.Rev. 1226, 1246 (1962); Lubet & Czackes, The Role of the American Judiciary in the Extradition of Political Terrorists, 71 J.Crim.L. & Criminology 193, 205 (1980). Only one circuit has previously considered in any detail how or whether the exception applies when the accused person or persons have engaged in conduct involving the use of some of the more violent techniques or tactics that have come to mark the activities of contemporary insurgent or revolutionary movements. Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). The few opinions of other circuits that have considered the exception shed no light on the difficult questions we must resolve here. Therefore, we must carefully examine the historie origins of the political offense exception, analyze the various underpinnings of the doctrine, trace its development in the lower courts and elsewhere, and seek to apply whatever principles emerge to the realities of today’s political struggles. In the case before us, we find, for reasons we will explain in full, that the charged offenses are not protected by the political offense exception. We vacate the writ of habeas corpus and remand to the district court. We hold that Quinn may be extradited on the murder charge but that the district court must consider Quinn’s remaining defense to the conspiracy charge before extradition is permitted for that offense. I. BACKGROUND A. The Extradition Treaty The right of a foreign sovereign to demand and obtain extradition of an accused criminal is created by treaty. Ramos v. Diaz, 179 F.Supp. 459, 460-61 (S.D. Fla.1959). In the absence of a treaty there is no duty to extradite, see Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933); Epps, The Validity of the Political Offender Exception in Extradition Treaties in Anglo-American Jurisprudence, 20 Harv.Int’l L.J. 61, 74 (1979); cf Bassiouni, International Extradition: A Summary of Contemporary American Practice and a Proposed Formula, 15 Wayne L.Rev. 733, 734 (1969) (in Western world, “extradition is a matter of favor or comity rather than a legal duty”), and no branch of the United States government has any authority to surrender an accused to a foreign government except as provided for by statute or treaty. Factor v. Laubenheimer, 290 U.S. 276, 287, 54 S.Ct. 191, 193, 78 L.Ed. 315 (1933); Ramos, 179 F.2d at 460-61. The extradition treaty between the United States and the United Kingdom provides for the reciprocal extradition of persons found within the territory of one of the nations who have been accused or convicted of certain criminal offenses committed within the jurisdiction of the other nation. Treaty, supra p. 781, at art. I. Murder and conspiracy to cause explosions, the offenses with which Quinn has been charged, are extraditable offenses under the Treaty. Id. art. III(l), (2). United States citizenship does not bar extradition by the United States. See Charlton v. Kelly, 229 U.S. 447, 467, 33 S.Ct. 945, 952, 57 L.Ed. 1274 (1913); Escobedo v. United States, 623 F.2d 1098,1104-07 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980). However, under the doctrine of “dual criminality,” an accused person can be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations. Factor, 290 U.S. at 293, 54 S.Ct. at 195; Captan v. Voices, 649 F.2d 1336, 1343 (9th Cir.1981); see, e.g., Treaty, supra p. 781, at art. III(l)(a). In addition, there must be evidence that would justify committing the accused for trial under the law of the nation from whom extradition is requested if the offense had been committed within the territory of that nation.' Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); 18 U.S.C. § 3184 (1982); see, e.g., Treaty, supra p. 781, at art. VII(d). United States courts have interpreted this provision in similar treaties as requiring a showing by the requesting party that there is probable cause to believe that the accused has committed the charged offense. See, e.g., Glucksman v. Henkel, 221 U.S. 508, 512, 31 S.Ct. 704, 705, 55 L.Ed. 830 (1911); United States ex rel. Sakaguchi v. Kaululukui, 520 F.2d 726, 729-31 (9th Cir.1975). The doctrine of “specialty” prohibits the requesting nation from prosecuting the extradited individual for any offense other than that for which the surrendering state agreed to extradite. United States v. Rauscher, 119 U.S. 407, 420-21, 7 S.Ct. 234, 241, 30 L.Ed. 425 (1886); Caplan v. Vokes, 649 F.2d at 1343; see, e.g., Treaty, supra p. 781, at art. XII. The treaty between the United States and the United Kingdom provides certain exceptions to extradition, notwithstanding the existence of probable cause to believe that the accused has committed the charged offense. In particular, the treaty specifies that “[ejxtradition shall not be granted if ... the offense for which extradition is requested is regarded by the requested party as one of a political character____” Treaty, supra p. 781, at art. V(l)(c). B. Factual Background Quinn, a United States citizen, was arrested on September 30, 1981 in Daly City, California pursuant to a provisional arrest warrant issued by a United States magistrate upon application of the United States acting for and on behalf of the United Kingdom. On November 4, 1981, the United Kingdom formally requested Quinn’s extradition to face charges of the murder of Police Constable Stephen Tibbie and conspiracy to cause explosions of a nature likely to endanger human life. The duration of the conspiracy with which Quinn is charged is from January 1, 1974 to April 3, 1975, the day before Quinn was arrested for questioning regarding separate 1974 offenses of kidnapping and assault. Quinn was, in fact, charged, tried, and convicted at that time in Ireland, in a special court utilized for the trial of political cases, of membership in an outlawed organization — the IRA. He was imprisoned in Dublin as a “special category prisoner” — a political prisoner incarcerated in a manner akin to prisoner-of-war status — until January 2, 1976. The evidence before the United States magistrate regarding the conspiracy centered around six specific bombing incidents: 1. On January 18, 1974, a hollowed-out copy of the Bible containing a bomb was mailed to and received by Bishop Gerard William Tickle in London. At that time, Bishop Tickle was the Roman Catholic Bishop to the British Armed Forces. Quinn’s fingerprints were found on the wrapping paper around the bomb, which was defused without causing any harm. 2. On January 30, 1974, a letter bomb was sent to the Surrey, England home of Crown Court Judge John Huxley Buzzard who, at that time, was a senior Treasury Prosecuting Counsel. When Judge Buzzard began to open the package, it partially exploded, lacerating his face, hands, and wrist and causing the loss of the ends of two fingers on his left hand. Quinn’s fin'gerprints were on the wrapping around the bomb. 3. On February 4, 1974, a letter bomb was sent to the offices of Max Aitken, Chairman of the Daily Express newspaper in London. Aitken’s assistant secretary, who partially opened the package, believed it looked suspicious and called a security guard. As the security guard picked up the package, it partially exploded and the officer lost most of the fingers on his left hand. Quinn’s fingerprints were found on the book in which the bomb was concealed. 4. On December 20, 1974, a bomb was found in the foyer adjacent to the loading platform at Aldershot Railway Station in Hampshire County, England. The bomb was defused without causing any harm, and the fingerprints of a number of Quinn’s alleged co-conspirators were found on the wrapping paper and bomb mechanisms. 5. On December 21, 1974, a bomb was discovered in an attache case in the archway entrance to the Kings Arms Public House in Warminster, England. The bomb was defused and the fingerprints of Gilhooley, a fugitive who was not indicted as a co-conspirator, were found on its timing mechanism. 6. On January 27, 1975, a bomb was found in a black bag on the front step of the Charco-Burger Grill on Heath Street in London. The bomb was defused and Quinn’s fingerprints were found on the Irish newspaper that had been used to wrap the bomb. Searches of two flats in the London area conducted during this time period revealed explosives, detonators, fuses, and diagrams of bomb construction. Fingerprints matching those of Quinn, his alleged co-eonspirators, and Gilhooley were each found on at least one item at each location. The murder with which Quinn is charged took place on February 26, 1975. On that day, Police Constables Adrian Blackledge and Leslie White were patrolling the West Kensington area of London on foot, looking for burglary suspects. Blackledge saw a man engaged in “suspicious” behavior, such as looking around and changing directions. Blackledge lost sight of the man but later, while White was on a lunch break, saw the suspect reappear from one of a number of houses on Fairholme Road. Blackledge approached the man while he waited at a bus stop, identified himself as a police officer, and asked the man where he had been. The suspect was unable to give Blackledge the address of the house he had emerged from and gave his name as William Rogers. The suspect said he would take Blackledge to the home he had visited, began to walk away, then ran. A chase ensued, and other plainclothes police officers, including Temporary Detective Constable Derek Hugh Wilson, joined in. Police Constable Stephen Tibbie, who was on a motorcycle dressed in civilian clothes, caught up to the suspect, got off his motorcycle, and assumed a crouched position. The suspect shot Tibbie three times and ran, evading the other officers. Tibbie died that afternoon. Blackledge described the suspect as 25-30 years old, with straight, short, light brown hair of about collar length, a heavy build, a slightly tanned complexion, and a “mellow” Irish accent. Wilson estimated the suspect’s height at five feet ten inches. He offered a description of the suspect that differed in only two respects from Black-ledge’s. Wilson described the suspect as slimly built, and said he had dark brown hair. Quinn speaks with an American accent but has been reputed to have assumed an Irish accent on occasion. He normally has a pale complexion. He has a slim build and dark brown hair. On December 12, 1975, British police arrested Quinn’s alleged co-conspirators after a six-day siege with hostages in a flat in London. In the flat they discovered, among other things, a revolver. Bullets fired from this revolver revealed rifling characteristics similar to those on the bullets recovered from Tibbie’s body. Quinn’s alleged co-conspirators became known as the “Balcombe Street Four” during their trial under the British Prevention of Terrorism Act on charges stemming from their activity as members of an Active Service Unit (“ASU”) of the Provisional Irish Republican Army (“PIRA”), a more violent offshoot of the IRA. ASUs are small groups of PIRA members who conducted a series of violent actions in England, including bombings designed to pressure the British government into negotiating independence for Northern Ireland. Quinn’s alleged co-conspirators were tried in a special criminal court in London utilized only for prosecution of “political cases,” and the prosecution at their trial argued that the motive in setting the bombs was purely political. On May 14, 1975, Constable Blackledge was taken to the Special Criminal Court in Dublin, where Quinn was appearing on the charge of being a member of the IRA. Blackledge pointed Quinn out to Rollo Watts of the Special Branch of New Scotland Yard and identified Quinn as the man who had shot Tibbie. On October 8, 1981, Watts was shown a photograph of Quinn taken in San Francisco on September 30, 1981, at the time of Quinn’s arrest by the FBI. Watts identified Quinn as the man that Blackledge had identified in Ireland six years earlier. C. Decisions Under Review After the United Kingdom formally requested Quinn’s extradition, a United States Magistrate conducted preliminary proceedings and a hearing to determine extraditability pursuant to 18 U.S.C. § 3184 (1982). Quinn contended that the conspiracy charge was time barred, that the evidence was insufficient to establish probable cause to believe he had committed the alleged crimes, and that all the offenses for which the United Kingdom seeks his extradition are “offenses of a political character” upon which extradition cannot be based. At the hearing, Quinn introduced evidence regarding activities of the IRA and the PIRA in Northern Ireland and in England that were designed to cause the overthrow of British rule in Northern Ireland. Quinn did not testify at the hearing or otherwise offer any evidence of his own motivation for his alleged participation in the charged crimes. On September 29, 1982, the magistrate rejected Quinn’s defenses and issued a Certification of Extraditibility and Order of Committment to the Secretary of State. The magistrate held that in order to qualify for the protection afforded by the political offense exception, Quinn had to show three elements: that there was a violent political uprising, that he was a member of the uprising group, and that the crimes were committed in furtherance of the uprising. The magistrate concluded that there was a violent political uprising in the United Kingdom at the time of the alleged crimes sufficient to bring into play the political offense exception. However, he found that Quinn had not proved the other two elements of a political offense. According to the magistrate, Quinn’s evidence of his membership in the IRA was of little weight since he had failed to demonstrate that he was a member of the PIRA or of the Active Service Unit that allegedly conducted the bombings. The magistrate also determined that Quinn failed to show that the charged crimes were “in furtherance of” PIRA political goals. According to the magistrate, because the ASUs often acted without guidance from superiors, their targets may have been chosen for personal reasons — such as spite or revenge — rather than out of political motivations. Second, the magistrate determined that the bombings could not be “in furtherance of” the uprising because there was no evidence that any hierarchy within the PIRA had considered their potential effectiveness in promoting the group’s political goals. Third, relying in part on Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981), the magistrate found that the bombings failed to meet the “direct link” test because they were directed at civilians rather than the government the IRA was attempting to displace and they did not take place in Northern Ireland. Quinn contended that the murder of Officer Tibbie was a political offense because it was motivated by the killer’s fear that, if captured, he would be questioned and forced to reveal information about PIRA activities. The magistrate rejected this argument as well, finding that the murder was motivated by a simple desire to escape capture. Quinn filed a Petition for Writ of Habeas Corpus commanding Glen E. Robinson, the United States Marshal, to release him. The district court did not address all of Quinn’s arguments because it determined that the offenses for which extradition is being sought are non-extraditable political offenses. In granting Quinn’s petition, the district court identified three legal errors in the magistrate’s analysis and found that the magistrate erred in its factual findings regarding Quinn’s membership in the PIRA and the killer’s motive for the Tibbie murder. First, the district court held that the magistrate was wrong in requiring Quinn to show, as a separate element, membership in an uprising group. Second, the district court concluded that the magistrate erred in imposing a requirement that the acts potentially be politically efficacious or directed by a hierarchy within the PIRA in order to meet the requirement of being “incidental to” the uprising. Third, the court disagreed with the magistrate’s application of Eain to this case, noting that the motive of the petitioner in Eain, a member of the Palestinian Liberation Organization (“PLO”), in bombing civilians was to drive them out of Israel. Here, in contrast, the court found that the motive was to influence the British government in its relationship with the PIRA and Northern Ireland and that the potential harm to civilians was merely a consequence of the activities designed to influence the government. As to the Tibbie murder, the district court determined that the magistrate erred in finding no political motive. Although it agreed that the killing was the result of an effort to avoid immediate capture, the court said that it was incidental to the uprising because Quinn was trying to avoid a capture that could lead to the discovery of the bomb factory. II. JURISDICTION TO CONSIDER THE POLITICAL OFFENSE EXCEPTION As it has in other recent extradition cases, see, e.g., In re Mackin, 668 F.2d 122 (2d Cir.1981); Eain v. Wilkes, 641 F.2d 504 (7th Cir.), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981), the government contends that both the magistrate and the district court lacked jurisdiction to determine whether the political offense exception bars extradition. According to the government, the language of both the jurisdictional statute and the treaty precludes a judicial determination of whether the exception applies. Moreover, the government contends, such a determination involves political questions that only the executive branch of the government can resolve. Like every court before us that has considered these arguments, see, e.g., Mackin, 668 F.2d at 135-37; Eain, 641 F.2d at 512-18; In re Ezeta, 62 F. 972, 996-97 (N.D.Cal.1894), and like those that have not explicitly considered them but have proceeded to determine whether the exception applies, see, e.g., Ornelas v. Ruiz, 161 U.S. 502, 510-12, 16 S.Ct. 689, 692-93, 40 L.Ed. 787 (1896); In re Doherty, 599 F.Supp. 270 (S.D.N.Y.1984), we believe the government’s contentions to be merit-less. A. The Language of the Statute and the Treaty The government contends that the jurisdictional statute, 18 U.S.C. § 3184, fails to authorize the magistrate to determine whether the political offense exception applies and that the treaty explicitly contemplates an executive branch resolution of the question. According to the government, section 3184’s command that the magistrate consider whether “the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty” authorizes the magistrate to determine only whether there is probable cause to believe the accused committed the offense. The government further notes that the treaty calls for the “requested party” to determine if it regards the offense as one of a political character. See Treaty, supra p. 781, at art. V(l)(c)(ii). According to the. government, the term “requested party” refers to the Secretary of State, not the judiciary. The government’s construction of both the statute and the treaty is in error. The “requested party” language has been used in treaties since at least the turn of the century, see Mackin, 668 F.2d at 132-33 (citing treaties), and has consistently been interpreted to refer to the country, not any particular branch of its government. The language does not undermine the well-established responsibility of the extradition magistrate — and the judiciary on habeas review — to determine whether the charged offense is or is not extraditable. Id.; Captan v. Vokes, 649 F.2d 1336, 1342-44 (9th Cir.1981); Eain, 641 F.2d at 517-18. The determination whether a crime is extraditable “under the provisions of the treaty” includes consideration of whether the crime is nonextraditable because it falls within the political offense exception. See Ezeta, 62 F. at 996-97. We fail to see how the magistrate could determine whether there is probable cause that the defendant committed an extraditable crime without determining whether the charged offense is one for which extradition is prohibited. Nor can we conclude in the absence of explicit language that Congress, in enacting 18 U.S.C. § 3184, intended to restrict the ability of the judiciary to carry out its role in protecting the liberty interests of individuals by requiring us to review extradition orders without considering all aspects of the pertinent question— whether there is probable cause to believe that the accused committed an extraditable offense. B. The Political Question Doctrine The government next argues that because three of the factors enumerated in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), are present in this case, the judiciary should abstain, under the political question doctrine, from determining whether the political offense exception applies. The government contends that determining whether the exception applies requires a policy determination of a kind clearly inappropriate for the exercise of judicial discretion, that different pronouncements from the executive and judiciary on matters necessary to a determination of the applicability of the exception could embarrass the government, and that the issue does not lend itself to resolution through judicially discoverable manageable standards. Other circuit courts have considered and rejected the precise arguments advanced by the government in this case. See Mackin, 668 F.2d at 132-37; Eain, 641 F.2d at 513-18; cf. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 796-98 (D.C.Cir.1984) (Edwards, J., concurring) (political question doctrine is a very limited basis for nonjusticiability and does not bar review of a tort claim for damages consequent to terrorist activities), cert. denied, — U.S. -, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). But see id. at 826 (Robb, J., concurring) (“[TJhere is simply ‘no justiciable standard to the political offense.’ ”) (quoting Extradition Reform Act of 1981: Hearings on H.R.5227 Before the Subcommittee on Crime of the House Committee on the Judiciary, 97th Cong., 2d Sess. 24-25 (testimony of Roger Olson, Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice)). Like these courts, we recognize the executive branch’s interest in matters that touch on foreign policy. However, as did Judge Friendly in Mackin, 668 F.2d at 134, we also recognize the individual liberty concerns at stake in cases of this nature and note the Supreme Court’s long accepted conclusion 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, 55 U.S. (14 How.) 103, 112, 14 L.Ed. 345 (1852). In identifying the specific Baker v. Carr factors that it claims are present in this case, the government begins by noting that in order to consider whether the political offense exception applies, a court must determine whether a political uprising was in progress in the foreign land when the offense occurred. See infra p. 797. The government contends that such a factual finding requires a policy determination. We disagree. We need not determine whether the uprising was “justified” or was motivated by political forces of which we approve. Rather, we must determine simply whether an uprising was in progress. “The existence of a violent political uprising is an issue of past fact: either there was demonstrable, violent activity tied to political causes or there was not.” Eain, 641 F.2d at 514. Furthermore, like the Seventh Circuit, we believe that even if unique, sensitive information that is available to the State Department bears on this factual issue, there are adequate mechanisms — such as in camera disclosure — for ensuring that the material can be produced for judicial consideration. See id. at 514-15. The government also contends that the presence of a second factor enumerated in Baker v. Carr counsels judicial abstention. The government argues that a judicial determination that Quinn’s extradition is precluded by the political offense exception would “recognize” political terrorists and would thus constitute a potentially embarrassing pronouncement different than the pronouncements of the executive branch. Like the Seventh Circuit, see Eain, 641 F.2d at 515, we do not believe the executive branch has refused to recognize the existence of terrorists. Rather, in some cases, it may have refused to recognize the legitimacy of these groups. We fail to see why a judicial acknowledgment that terrorist groups exist would constitute a “recognition” of those groups in the sense of legitimizing their actions. Cf. Tel-Oren, 726 F.2d at 822 (Bork, J., concurring) (noting that judicial acknowledgment of effect of PLO on the foreign relations of the United States does not grant the PLO any form of “official recognition” and is similar to the executive branch’s commenting on the subject of the PLO while continuing to maintain that the group is not deserving of recognition). Far from embarrassing the executive branch, assigning to the judiciary the responsibility for determining when the exception applies actually affords a degree of protection to the executive branch. As a political branch, the executive could face undue pressure when public and international opposition to the activities of an unpopular group create conflicts with the treaty obligation created by the political offense exception. See Epps, supra p. 4, at 84 (“[T]he requesting state is much more likely to be irate if a court deems the fugitive extraditable but the executive reverses that decision.”); cf. Eain, 641 F.2d at 513 (assignment of this determination to judiciary allows executive branch to avoid risk of political and economic sanctions that could result from discretionary executive refusal to extradite) (quoting Lubet & Czackes, supra p. 3, at 200; citing I.A. Shearer, Extradition in International Law 192 (1971); Note, Bringing the Terrorist to Justice: A Domestic Law Approach, 11 Cornell Int’l L.J. 71, 74 (1978)). By assigning the initial determination of when the exception applies to the impartial judiciary — particularly life-tenured Article III judges — Congress has substantially lessened the risk that majoritarian consensus or favor due or not due to the country seeking extradition will interfere with individual liberty. See C. Van den Wijngaert, The Political Offense Exception to Extradition 100 (1980) (“[Administrative decisions with respect to extradition are much more likely to be influenced by political elements than the decisions of the courts.”). The treaty’s assignment to the judiciary of the task of determining the applicability of the political offense excep-. tion “reflects a congressional judgment that that decision not be made on the basis of what may be the current view of any one political administration.” In re Doherty, 599 F.Supp. 270, 277 n. 6 (S.D.N.Y.1984). Nor does the assignment to the judiciary of the initial determination of the applicability of the political offense exception deprive the executive branch of all discretion to determine that a person claiming the protection of that exception should not be extradited. The executive branch has the ultimate authority to decide whether to extradite the accused after a judicial determination that the individual is, in fact, extraditable. Eain, 641 F.2d at 516 (citing In re Ezeta, 62 F. 972 (N.D.Cal.1894)); 18 U.S.C. § 3186 (1982). Although the Secretary of State’s authority to refuse extradition is presumably constrained by our treaty obligations, the contours of executive branch discretion in this area have never been expressly delineated. Bassiouni, supra p. 4, at 756 ([“TJhe statute should probably be interpreted to grant the Secretary only limited discretion to differ from the courts in the matter of treaty interpretation. In fact, the Secretary has always based his refusal to surrender upon a determination that the treaty did not require extradition in that instance____ [T]he Secretary apparently considers his discretion only coextensive with the issues presentable at the extradition proceedings ... [and] has refused surrender infrequently (only twice between 1940 and 1960)____”). Nevertheless, it is clear that the Secretary of State has sole discretion to determine whether a request for extradition should be denied because it is a subterfuge made for the purpose of punishing the accused for a political crime, see In re Lincoln, 228 F. 70 (E.D.N.Y.1915), aff'd, 241 U.S. 651, 36 S.Ct. 721, 60 L.Ed. 1222 (1916) (per curiam), or to refuse extradition on humanitarian grounds because of the procedures or treatment that await a surrendered fugitive, Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9th Cir.1983); Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980); 18 U.S.C. § 3186 (1982). Finally, the government points out the difficulty of defining which offenses are of a political character. It suggests that this difficulty demonstrates an absence of judicially discoverable manageable standards, another factor that, according to Baker v. Carr, counsels for judicial abstention. As in many areas of the law, and as we discuss further in the remainder of this opinion, there has always been debate about the precise contours of the political offense exception. But the absence of perfect predictive ability in discerning whether a given act falls within the exception is not synonymous with an absence of manageable standards. Rather, as with other complex legal problems, the basic standards that guide us in deciding whether the exception applies are refined on a case-by-case basis as new situations arise. The determination whether there was a violent political disturbance in the requesting country at the time of the alleged acts and whether the acts were incidental to the disturbance, see infra pp. 806-10, are mixed questions of law and fact, see Ornelas v. Ruiz, 161 U.S. 502, 509, 16 S.Ct. 689, 691, 40 L.Ed. 787 (1896), that do not require a political judgment. See Eain, 641 F.2d at 516. We fail to see how the judicial construction of 18 U.S.C. § 3184 and the applicable treaty, and the application of these laws to the facts of a given case, differs from all other judicial decisionmaking. As the Supreme Court noted in Baker v. Carr, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” 369 U.S. at 211, 82 S.Ct. at 706-07. The magistrate properly considered the applicability of the political offense exception to the offenses charged against Quinn, and we as well have a responsibility to construe the treaty and to determine whether “it provides the answer.” Id. at 212, 82 S.Ct. at 707. III. STANDARD OF REVIEW A. District Court Review of The Magistrate’s Order The scope of the district court’s review of a magistrate’s extradition order on a petition for writ of habeas corpus is limited to “whether the magistrate had jurisdiction, whether the offence [sic] charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); accord Zanazanian v. United States, 729 F.2d 624, 626 (9th Cir.1984). Preliminarily, the magistrate must determine, and the court must review whether the extradition treaty was in effect and applicable to the case and whether the person named in the complaint is the individual before the magistrate. See Ivancevic v. Artukovic, 211 F.2d 565 (9th Cir.), cert. denied, 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645 (1954). As discussed supra Section II., the political offense question is reviewable on habeas corpus as part of the question of whether the offense charged is within the treaty. See Eain, 641 F.2d at 513-18. The question whether the offense comes within the treaty ordinarily involves a determination of whether it is listed as an extraditable crime and whether the conduct is illegal in both countries, Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933); see supra p. 782-83; these are purely legal questions that the habeas court may review de novo. Kamrin v. United States, 725 F.2d 1225 (9th Cir.1984); Cucuzzella v. Keliikoa, 638 F.2d 105 (9th Cir.1981). Purely factual questions in extradition cases are reviewed under the clearly erroneous standard. See, e.g., Captan v. Vokes, 649 F.2d 1336, 1342 (9th Cir.1981) (finding that accused was a fugitive reviewed under clearly erroneous standard). The magistrate’s probable cause determination “serve[s] only the narrow function of indicating those items of submitted evidence on which the decision to certify extradition is based.” Caplan v. Vokes, 649 F.2d at 1342 n. 10. Because the magistrate’s probable cause finding is thus not a finding of fact “in the sense that the court has weighed the evidence and resolved disputed factual issues,” id., it must be upheld if there is any competent evidence in the record to support it. See Fernandez, 268 U.S. at 312, 45 S.Ct. at 542; Zanazanian, 729 F.2d at 626; Valencia v. Limbs, 655 F.2d 195, 197 (9th Cir.1981). The political offense issue, in contrast to the determinations discussed above, is a mixed question of law and fact. See Ornelas v. Ruiz, 161 U.S. at 509, 16 S.Ct. at 691. Accordingly, the district court must review the magistrate’s determination on this issue in the same manner that an appellate court reviews a district court’s findings on mixed fact and law questions. Review of the application of law to fact depends on whether the determination is “essentially factual” — in which case it is reviewed under the clearly erroneous standard, United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.) (en banc), cert. denied, — U.S.-, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) — or whether it requires the court to consider “legal concepts in the mix of fact and law and to exercise judgment about values that animate legal principles” — in which case the issue is reviewed de novo, id. at 1199-1204. Accordingly, a district court must review the magistrate’s purely factual findings underlying the application of the political offense exception under the clearly erroneous standard, while the mixed determinations at issue — such as the question whether the crime was incidental to a political uprising — must be reviewed de novo B. Appellate Review of the District Court’s Decision As discussed supra Section I.B., the district court disagreed with some of the magistrate’s factual findings and legal determinations, as well as its ultimate conclusion on the mixed questions of whether the charged crimes were political offenses. There is no question that we review the legal questions and mixed questions de novo. McConney, 728 F.2d at 1199-1204. Quinn contends, however, that we should uphold the district court's factual findings unless they are clearly erroneous, while the government urges us to defer to the factual findings made by the magistrate unless they are clearly erroneous. In support of his argument, Quinn contends that Hooker v. Klein, 573 F.2d 1360 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978), requires us to focus on “the findings of fact and conclusions of law made by the district court in granting or denying habeas relief.” See id. at 1368. In that case, however, the habeas court affirmed the extradition court without making specific findings. We focused on the findings of the court that had ordered extradition, which were adopted by the district court that heard the petition for writ of habeas corpus. See also Caplan v. Vokes, 649 F.2d 1336 (9th Cir.1981) (clearly erroneous standard applied to factual findings of district court that had both ordered extradition and denied petition for habeas corpus). It would make little sense for us to ignore the factual findings of the judicial tribunal that made the initial factual determinations and defer, instead, to the differing factual findings made by a similar tribunal that merely reviewed the record of the earlier proceedings and held no evidentiary hearing of its own. Rather, we must determine whether the habeas court erred, as a matter of law, in overruling the magistrate’s factual findings. Accordingly, we will defer to the extradition tribunal’s factual findings unless we agree with the district court that they are clearly erroneous. IV. THE DEVELOPMENT OF THE POLITICAL OFFENSE EXCEPTION A. Origin of the Exception The first-known extradition treaty was negotiated between an Egyptian Pharaoh and a Hittite King in the Thirteenth Century B.C. See I.A. Shearer, supra p. 22, at 5. However, the concept of political offenses as an exception to extradition is a rather recent development. In the centuries after the first known extradition treaty, and throughout the Middle Ages, extradition treaties were used primarily to return political offenders, rather than the perpetrators of common crimes, to the nations seeking to try them for criminal acts. See I.A. Shearer, supra p. 22, at 166; Recent Decisions, The Political Offense Exception to Extradition: A 19th Century British Standard in 20th Century American Courts, 59 Notre Dame L.Rev. 1005, 1008 (1984) [hereinafter cited as 20th Century American Courts ]. It was not until the early nineteenth century that the political offense exception, now almost universally accepted in extradition law, was incorporated into treaties. The French and American revolutions had a significant impact on the development of the concept of justified political resistance, see Declaration des droits de l’homme et du Citoyen du 26 aout 1789, art. 2 (Fr.), incorporated as La preamble de la Constitution de 1791 (Fr.), reprinted in Les Constitutions de la France Depuis 1789, at 33, 33 (S. Godechot ed. 1970) (declaring as an inalienable right “la resistance a l’oppression”); La Constitution de 1793, art. 120 (Fr.), reprinted in Les Constitutions de la France Depuis 1789, supra, at 79, 91 (France “donne asile aux etrangers bannis de leur patrie pour la cause de la liberte.”); The Declaration of Independence para. 1 (U.S.1776) (“[Wjhenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it____”), as did the political philosophers of the time, see J. Locke, The Second Treatise of Civil Government ch. XIX (T. Cook ed. 1947); J.S. Mill, On Liberty and Considerations on Representative Government (R. McCallum ed. 1948). In 1834, France introduced the political offense exception into its treaties, see I.A. Shearer, supra p. 22, at 166-67, and by the 1850’s it had become a general principle of international law incorporated in the extradition treaties of Belgium, England, and the United States as well. See C. Van den Wijngaert, supra p. 22, at 5-14; Epps, supra p. 4, at 62-63. The political offense exception is premised on a number of justifications. First, its historical development suggests that it is grounded in a belief that individuals have a “right to resort to political activism to foster political change.” Note, American Courts and Modem Terrorism: The Politics of Extradition, 13 N.Y.U.J.Int’l L. & Pol. 617, 622 (1981) [hereinafter cited as Politics of Extradition ]; see also In re Doherty, 599 F.Supp. 270, 275 n. 4 (S.D.N.Y.1984) (“The concept was first enunciated during an era when there was much concern for and sympathy in England for the cause of liberation for subjugated peoples.”) (citation omitted). This justification is consistent with the modern consensus that political crimes have greater legitimacy than common crimes. Politics of Extradition, supra p. 31, at 623. Second, the exception reflects a concern that individuals — particularly unsuccessful rebels— should not be returned to countries where they may be subjected to unfair trials and punishments because of their political opinions. See M. Bassiouni, International Extradition and World Public Order 425 (1974); C. Van den Wijngaert, supra p. 22, at 3; Garcia-Mora, supra p. 3, at 1226, 1238. Third, the exception comports with the notion that governments — and certainly their nonpolitical branches — should not intervene in the internal political struggles of other nations. See C. Van den Wijngaert, supra p. 22, at 3, 158, 204; Politics of Extradition, supra p. 31, at 622. B. Comparative Legal Standards None of the political offense provisions in treaties includes a definition of the word “political.” I.A. Shearer, supra p. 22, at 168. Thus, the term “political offense” has received various interpretations by courts since the mid-nineteenth century. GarciaMora, supra, p. 3 at 1230-31; Wise, Book Review, 30 Am.J.Comp.L. 362, 363 (1982) (reviewing C. Van den Wijngaert, The Political Offense Exception to Extradition (1980)); cf. M. Bassiouni, supra p. 32, at 371-72 (inability to define precisely the term “political offense” promotes a necessary flexibility of the concept). Not every offense that is politically motivated falls within the exception. Instead, courts have devised various tests to identify those offenses that comport with the justifications for the exception and that, accordingly, are not extraditable. Within the confusion about definitions it is fairly well accepted that there are two distinct categories of political offenses: “pure political offenses” and “relative political offenses.” See Karadzole v. Artukovic, 247 F.2d 198, 203 (9th Cir.1957), vacated, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958) (mem.); see generally Garcia-Mora, supra p. 3, at 1230; 20th Century American Courts, supra p. 30, at 1009. Pure political offenses are acts aimed directly at the government, see Lubet & Czackes, supra p. 3, at 200, and have none of the elements of ordinary crimes, GarciaMora, supra p. 3, at 1230. These offenses, which include treason, sedition, and espionage, Garcia-Mora, supra p. 3, at 1234; Lubet & Czackes, supra p. 3, at 200, do not violate the private rights of individuals, Garcia-Mora, supra p. 3, at 1237. Because they are frequently specifically excluded from the list of extraditable crimes given in a treaty, see 20th Century American Courts, supra p. 30, at 1009, courts seldom deal with whether these offenses are extraditable, see id., and it is generally agreed that they are not, see Lubet & Czackes, supra p. 3, at 200 (citing In re Ezeta, 62 F. 972 (1894)). The definitional problems focus around the second category of political offenses— the relative political offenses. These include “otherwise common crimes committed in connection with a political act,” Lu-bet & Czackes, supra p. 3, at 200, or “common crimes ... committed for political motives or in a, political context,” 20th Century American Courts, supra p. 30, at 1009. Courts have developed various tests for ascertaining whether “the nexus between the crime and the political act is sufficiently close ... [for the crime to be deemed] not extraditable.” Lubet & Czackes, supra p. 3, at 200. The judicial approaches can be grouped into three distinct categories: (1) the French “objective” test; (2) the Swiss “proportionality” or “predominance” test; and (3) the Anglo-American “incidence” test. See generally Carbonneau, The Political Offense Exception to Extradition and Transnational Terrorists: Old Doctrine Reformulated and New Norms Created, 1 Assoc, of Student Int’l L. Societies Int’l L.J. 1, 11-31 (1977); Garcia-Mora, supra p. 3, at 1239-56; 20th Century American Courts, supra p. 30, at 1009-17. More recent developments allow for further distinctions between the British test and the test employed in the United States. See generally Lubet & Czackes, supra p. 3, at 201-10. The early French test, most clearly represented in In re Giovanni Gatti, [1947] Ann.Dig. 145 (No. 70) (France, Ct.App. of Grenoble)! considered an offense non-extraditable only if it directly injured the rights of the state. See 20th Century American Courts, supra p. 30, at 1010. Applying this rigid formula, French courts refused to consider the motives of the accused. Garcia-Mora, supra p. 3, at 1249-50. The test primarily protects only pure political offenses, see id. at 1235-36 (discussing cases), and is useless in attempts to define whether an otherwise common crime should not be extraditable because it is connected with a political act, motive, or context. Id. at 1252. Because politically motivated and directed acts may injure private as well as state rights, the objective test fails to satisfy the various purposes of the political offense exception. Politics of Extradition, supra p. 31, at 629-30. Nevertheless, this test has one benefit: because it is so limited, it is not subject to abuse; perpetrators of common crimes will not be protected because of alleged political motivations. Id. at 630; Garcia-Mora, supra p. 3, at 1251. In contrast to the traditional French test, Swiss courts apply a test that protects both pure and relative political offenses. The Swiss test examines the political motivation of the offender, see Garcia-Mora, supra p. 3, at 1251, but also requires (a) a consideration of the circumstances surrounding the commission of the crime, see Carbonneau, supra p. 34, at 23-26, and (b) either a proportionality between the means and the political ends, see 20th Century American Courts, supra p. 30, at 1010-11, or a predominance of the political elements over the common crime elements, see Garcia-Mora, supra p. 3, at 1254. At least one commentator has suggested that the first condition of the Swiss test is a requirement of a direct connection between the crime and the political goal — a condition that essentially requires the pres-' ence of a political movement. See GarciaMora, supra p. 3, at 1253 (citing Swiss cases). Others point out that the early Swiss requirement that a crime be incident to a political movement has been explicitly rejected in later cases. See, e.g., Carbonneau, supra p. 34, at 26-28 (citing Swiss cases). More recent Swiss cases concentrate less on the accused’s motive, relying instead almost entirely on an ends-means test under which politically motivated conduct is protected by the exception only if the danger created by the conduct is proportionate to the objectives, i.e., if the means employed are the only means of accomplishing the end and the interests at stake are sufficiently important to justify the danger and harm to others. See Carbonneau, supra p. 34, at 28-29 (citing Swiss cases). The comprehensiveness and flexibility of the “predominance” or “proportionality” test allows it to be conformed to changing realities of a modern world. See GarciaMora, supra p. 3, at 1255. But because the relative value of the ends and the necessity of using the chosen means must be considered, the criteria applied by Swiss courts incorporate highly subjective and partisan political considerations within the balancing test. See C. Van den Wijngaert, supra p. 22, at 158; Politics of Extradition, supra p. 31, at 631. The test explicitly requires an evaluation of the importance of the interests at stake, the desirability of political change, and the acceptability of the means used to achieve the ends. The infusion of ideological factors in the determination which offenses are non-extraditable threatens both the humanitarian objectives underlying the exception and the concern about foreign non-intervention in domestic political struggles. Moreover, it severely undermines the notion that such determinations can be made by an apolitical, unbiased judiciary concerned primarily with individual liberty. See supra pp. 788-89. The “incidence” test that is used to define a non-extraditable political offense in the United States and Great Britain was first set forth by the Divisional Court in In re Castioni, [1891] 1 Q.B. 149 (1890). In that case, the Swiss government requested that Great Britain extradite a Swiss citizen who, with a group of other angry citizens, had stormed the palace gates and killed a government official in the process. Id. at 150-51. Castioni did not know the victim or have a personal grudge against him. The habeas court considered: [W]hether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in' acts of violence of a political character with a political object, and as part of the political movement and [up]rising in which he was taking part. Id. at 159 (per Denman, J.). The court denied extradition, finding that Castioni’s actions were “incidental to and formed a part of political disturbances,” id. at 166 (per Hawkins, J.), and holding that common crimes committed “in the course” and “in the furtherance” of a political disturbance would be treated as political offenses, id. at 156 (per Denman, J.). Although both the United States and Great Britain rely explicitly on Castioni, each has developed its own version of the incidence test. British courts proceeded first to narrow the exception in 1894. In In re Meunier, [1894] 2 Q.B. 415, the court extradited a French anarchist charged with bombing a cafe and military barracks, id. at 415, concluding that anarchist action is not incident to a two-party struggle for political power, id. at 419 (per Cave, J.). The court held that the political offense exception protects those who seek to substitute one form of government for another, not those whose actions disrupt the social order and whose “efforts are directed primarily against the general body of citizens.” Id. The rigid “two-party struggle” requirement of the British incidence test has not survived. More recently, British courts have taken other factors into account, noting that political offenses must be considered “according to the circumstances existing at the time.” Regina v. Governor of Brixton Prison (ex parte Kolczynski), [1955] 1 Q.B. 540, 549 (1954) (per Cassels, J.). In Kolczynski, a British court refused to extradite Polish soldiers who were at risk of being punished for treason although the Polish government officially sought their extradition for common crimes. See id. at 543, 545. No political uprising existed at the time the crimes were committed. Id. at 544. Instead of a distinct uprising, the new British incidence test requires some “political opposition ... between fugitive and requesting State,” Schtraks v. Government of Israel, [1964] A.C. 556, 591 (1962) (per Viscount Radcliffe), and incorporates an examination of the motives of the accused and the requesting country in those situations in which the offense is not part of an uprising, see Lubet & Czackes, supra p. 3, at 202-03. C. Original Formulation of the United States Incidence Test The United States, in contrast to Great Britain, has adhered more closely to the Castioni test in determining whether conduct is protected by the political offense exception. The seminal United States case in this area is In re Ezeta, 62 F. 972 (N.D.Cal.1894), in which the Salvadoran government requested the extradition of a number of individuals accused of murder and robbery. The fugitives maintained that the crimes had been committed while they unsuccessfully attempted to thwart a revolution. See id. at 995. Extradition was denied because the acts were “committed during the progress of actual hostilities between contending forces,” id. at 997, and were “closely identified” with the uprising “in an unsuccessful effort to suppress it,” id. at 1002. However, an alleged act that occurred four months prior to the start of armed violence was held not to be protected by the incidence test despite the accused’s contention that El Salvador’s extradition request was politically motivated. Id. at 986. As we noted at the outset, the Supreme Court has addressed the political offense issue only once. In Ornelas v. Ruiz, 161 U.S. 502, 16 S.Ct. 689, 40 L.Ed. 787 (1896), Mexico sought the extradition of an individual for murder, arson, robbery, and kidnapping committed in a Mexican border town, at or about the time revolutionary activity was in progress. Id. at 510, 16 S.Ct. at 692. The Court allowed extradition on the basis that the habeas court had applied an improper, non-deferential standard of review to the extradition court’s findings. Id. at 511-12,16 S.Ct. at 692-93. It continued by listing four factors pertinent to the political offense inquiry in the case: (1) the character of the foray; (2) the mode of attack; (3) the persons killed or captured; and (4) the kind of property taken or destroyed. Id. at 511, 16 S.Ct. at 692. It found that although the raid (in December 1892) may have been contemporaneous with a revolutionary movement (in 1891), it was not of a political character because it was essentially unrelated to the uprising. The Court noted that the purported political aspects of the crimes were negated “by the fact that immediately after this occurrence, though no superior armed force of the Mexican government was in the vicinity to hinder their advance into the country, the bandits withdrew with their booty across the river into Texas.” Id. Since Ornelas, lower American courts have continued to apply the incidence test set forth in Castioni and Ezeta with its two-fold requirement: (1) the occurrence of an uprising or other violent political disturbance at the time of the charged offense, see, e.g., Garcia-Guillem v. United States, 450 F.2d 1189, 1192 (5th Cir.1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 13 L.Ed.2d 455 (1972); Ramos v. Diaz, 179 F.Supp. 459, 462 (S.D.Fla.1959), and (2) a charged offense that is “incidental to” “in the course of," or “in furtherance of” the uprising, see, e.g., Eain, 641 F.2d at 518; Sindona v. Grant, 619 F.2d 167, 173 (2d Cir.1980); Garcia-Guillem, 450 F.2d at 1192. While the American view that an uprising must exist is more restrictive than the modern British view and while we, unlike the British, remain hesitant to consider the motives of the accused or the requesting state, see Lubet & Czackes, supra p. 3, at 203, 205, American courts have been rather liberal in their construction of the requirement that the act be “incidental to” an uprising, see Garcia-Mora, supra p. 3, at 1244. The American approach has been criticized as being “both underinclusive and overinclusive,” see Lubet & Czackes, supra p. 3, at 203, and as “yielding] anomalous ... results,” see 20th Century American Courts, supra p. 30, at 1013-14. Although these criticisms have some merit, neither flaw in the American incidence test is serious. Some commentators have suggested that the test is underinclusive because it exempts from judicially guaranteed protection all offenses that are not contemporaneous with an uprising even though the acts may represent legitímate political resistance. See, e.g., Lubet & Czackes, supra p. 3, at 203-04. For example, the attempted kidnapping of a Cuban consul, allegedly for the purpose of ransoming the consul for political prisoners held in Cuba, was held by a court not to be a political offense because the act was not “committed in the course of and incidental to a violent political disturbance.” Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir.), cert. denied, 449 U.S. 1036, 101 S.Ct. 612, 66 L.Ed.2d 497 (1980). There are several responses to the charge of underinclusiveness. First, in their critiques, the commentators fail to give sufficient weight to the existence of a number of ameliorative safeguards. For example, review of certifications of extradition by the Secretary of State, see supra pp. 789-90, serves partially to remedy any underinclusiveness problem. If a court finds the accused extraditable, the Secretary has, at the very least, broad discretion to review the available record and conduct a de novo examination of the issues and, if necessary, to consider matters outside the record in determining whether to extradite. See Lubet & Czackes, supra p. 3, at 199. The potential underinclusiveness dangers of the uprising requirement are also mitigated by the fact that purely political offenses are never extraditable. See id. at 206; supra pp. 793-94. Additionally, because of the rule of dual criminality, see supra pp. 782-83, individuals accused of offenses that constitute protected activity under the First Amendment will not be extradited. See Lubet & Czackes, supra p. 3, at 206. Second, it is questionable whether the incidence test is, in fact, underinclusive. While it does not protect all politically motivated offenses, it protects those acts that are related to a collective attempt to abolish or alter the government — the form of political offense that the exception was initially designed to protect, see supra pp. 792-93. Third, any effort to jprotect all crimes that are in some way politically motivated would either require the abandonment of the objective test for determining which offenses fall within the exception— in our view a most undesirable result — or would result in the protection of innumerable crimes that fall far outside the original purposes underlying the exception. A number of commentators suggest, on the other hand, that the American test is overbroad because it makes non-extraditable some offenses that are not of a political character merely because the crimes took place contemporaneously with an uprising. See Garcia-Mora, supra p. 3, at 1246; Lu-bet & Czacke