UNITED STATES COURT OF APPEALS
                             FOR THE FIRST CIRCUIT

                 __________________________________________

                                 No. 97-1084

                 __________________________________________

                          United States of America
                            Respondent, Appellant

                                      v.

                       Lui Kin-hong, a/k/a Jerry Lui
                            Petitioner, Appellee

                 __________________________________________

                       ON APPEAL FROM AN ORDER OF THE
                        UNITED STATES DISTRICT COURT
                 _________________________________________

                BRIEF FOR LUI KIN-HONG, PETITIONER, APPELLEE
                 _________________________________________


                                      Harvey A. Silverglate
                                      BBO#462640
                                      Andrew Good
                                      BBO#201240

                                      SILVERGLATE & GOOD
                                      83 Atlantic Avenue
                                      Boston, MA 02110
                                      Tel (617) 523-5933
                                      Fax (617) 523-7554

                                      February 7, 1997


                         TABLE OF CONTENTS


STATEMENT ON APPELLATE JURISDICTION AND STANDARD OF
REVIEW                                                            1

QUESTION PRESENTED                                                3

SUMMARY OF ARGUMENT                                               3

ARGUMENT                                                          5


I.   THE GOVERNMENT HAS FAILED TO REBUT THE CLEAR AND
     ABUNDANT EVIDENCE IN THE TREATY'S TEXT, ITS
     RESOLUTION OF RATIFICATION, AND ITS LEGISLATIVE
     HISTORY THAT THE TREATY DOES NOT AUTHORIZE LUI'S
     EXTRADITION FOR TRIAL AND PUNISHMENT IN THE COURTS AND
     PENAL SYSTEM OF ANY SOVEREIGN OTHER THAN THE
     UNITED KINGDOM                                               5


     A.   The Government's Interpretation of the Treaty
          Ignores the Function and Settled Meaning of
          Extradition By Treaty                                   6
    
     B.   The Treaty's Political Offense Provisions Clearly Demonstrate
          That the Treaty Does Not Authorize
          Extradition For Trial or Punishment Of a Relator
          By a Sovereign Which Is Not a Party to the Treaty       7

     C.   The Adoption of the Senate's Declaration, in Its
          Resolution of Ratification of the Supplementary
          Treaty, Clearly Shows That the Treaty Does Not
          Authorize Extradition of a Relator for Subjection
          To Trial and Punishment Under a Sovereign Not a
          Party To the Treaty                                    14

     D.   When Read In Light of The Treaty's Political
          Offense Exception, the Warrant, Dual Criminality,
          and Specialty Provisions Also Demonstrate That
          the Treaty Does Not Authorize Extradition For
          Trial or Punishment Of a Relator By a Sovereign
          Which Is Not a Party to the Treaty                     17

     E.   The Cases Principally Relied Upon By the
          Government and the Magistrate Judge Do Not
          Support a Conclusion That the Treaty
          Authorizes Lui's Extradition                           22

     F.   In View of the Clear Intention Expressed in
          All of the Other Provisions of the Treaty,
          Including its Narrowed Political Offense
          Exception, That Relators May Be Surrendered
          Exclusively For Trial in United Kingdom Courts,
          No Contrary Inference Can Be Drawn From the
          Date When the Treaty Went Into Force                   25

     G.   The Issue Is Whether the Treaty Confers
          Jurisdiction on the Courts and the Secretary
          of State to Surrender Lui for Trial and
          Potential Punishment Under PRC Sovereignty In
          Hong Kong -- Not Whether the Treaty Prohibits It       26

     H.   Lui Is Not Urging this Court to Read an
          Exception into the Treaty; Nor Would the Court
          Be Abrogating or Violating the Treaty If It
          Granted Lui's Petition                                 27

     I.   Executive Interpretation of the Treaty Cannot
          Override Either the Treaty's Clear Meaning or
          the Senate's Prerogative                               28

     J.   The District Court's Interpretation of the Treaty
          Is Consistent With the Hong Kong Policy Act            32


II.  CONTRARY TO THE GOVERNMENT'S URGING, THIS COURT SHOULD
     NOT DETERMINE WHETHER, WHEN, AND ON WHAT TERMS
     EXTRADITION RELATIONS WITH POST-REVERSION HONG KONG
     SHOULD CONTINUE, BECAUSE THE CONSTITUTION AND THE HONG
     KONG POLICY ACT REQUIRE THOSE POLICY QUESTIONS TO BE
     DECIDED BY BOTH POLITICAL BRANCHES                         36

     A.   Extradition Policy Toward Post-Reversion Hong Kong: 
          The Chain of Events In the Political Branches          38
         
     B.   The President's Powers and Duties Under the Act        44

III. LUI'S CLAIMS ARE COGNIZABLE UNDER THIS COURT'S HABEAS
     CORPUS JURISDICTION AND ARE NOT NON-JUSTICIABLE UNDER
     THE NON-INQUIRY RULE OR TERLINDEN V. AMES                   46

     A.   Lui's Jurisdictional Challenge Is Of
          Constitutional Dimension                               46

     B.   Adjudication of Lui's Claims Does Not Involve
          Determinations Prohibited By the Non-Inquiry Rule      50

CONCLUSION                                                       55

                        TABLE OF AUTHORITIES

                                   CASES

Cheng Na-Yuet v. Hueston,
734 F.Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991)                        22, 23, 25, 48

Clark v. Duckworth,
906 F.2d 1174 (7th Cir. 1990)                                            2

Factor v. Laubenheimer,
290 U.S. 276 (1933)                                                      9

Fernandez v. Phillips,
268 U.S. 311 (1925)                                             47, 48, 49

Goldwater v. Carter,
444 U.S. 996 (1979)                                                     45

Greci v. Birknes,
527 F.2d 956 (1st Cir. 1976)                                         9, 28

In re Extradition of Howard,
996 F.2d 1320 (1st Cir. 1993)                           2, 6, 7, 9, 17, 51

In re Extradition of Manzi,
888 F.2d 204 (1st Cir. 1989), cert.denied, U.S. (1990)                  49

Koskotas v. Roche,
931 F.2d 169 (1971)                                             47, 48, 49

Matter of Burt, 737 F.2d 1477 (7th Cir. 1984)                           49

Matter of Extradition of Tang Yee-Chun,
674 F. Supp. 1058 (S.D.N.Y. 1987)                               22, 25, 48

Minor v. United States,
396 U.S. 87 (1969)                                                      12

Oen Yin-Choy v. Robinson,
858 F.2d 1400 (9th Cir. 1988),
cert. denied, 490 U.S. 1106 (1989)                          22, 23, 25, 48

Plaster v. United States,
720 F.2d 340 (4th Cir. 1983)                                            49

United States v. Rauscher,
119 U.S. 407 (1886)                                                      6

Sabatier v. Dabrowski,
586 F.2d 866 (1st Cir. 1978)                                            29

Terlinden v. Ames,
184 U.S. 270 (1902)                                                 passim

                           CONSTITUTIONAL PROVISIONS

United States Constitution, Article II, Section 2                   passim

United States Constitution, Amendment 5                             passim

                                   STATUTES

28 U.S.C. § 2241(c)(3)                             1, 2, 4, 46, 47, 49, 50

28 U.S.C. § 2253                                                         1

18 U.S.C. § 3184                                            24, 46, 47, 48

18 U.S.C. §3186                                                     24, 46

Hong Kong Policy Act, 22 U.S.C. § 5701, et. seq.                    passim


                             TREATIES & CONVENTIONS
                            
Extradition Treaty Between the Government of the United
States of America and the Government of the United
Kingdom of Great Britain and Northern Ireland,
June 8, 1972, 28 U.S.T. 227                                         passim

Supplementary Treaty Between the United States of
America and the United Kingdom of Great Britain and
Northern Ireland, June 25, 1985, T.I.A.S. No. 12050                 passim


                           MISCELLANEOUS AUTHORITIES

Excerpts of Supplementary Extradition Treaty
Between the United States and the Kingdom of Great
Britain and Northern Ireland:  Hearing Before the
Senate Comm. on Foreign Relations, 99th Cong.,
1st Sess. (1985)
(statement of Abraham D. Sofaer, Legal Advisor,
Department of State)                                                   11

99th Cong., 2d Sess., 132 Cong. Rec. S 9119-71
(daily ed. July 16, 1986)                                              12

Senate Declaration, 99th Cong., 2d Sess., 132
Cong. Rec. S 9120 (daily ed. July 16, 1986)            12, 14, 15, 21, 27

Hong Kong's Reversion to China and Implications
for U.S. Policy: Hearing Before the Subcomm. on
East Asian and Pacific Affairs of the Senate Comm.
on Foreign Relations, 102nd Cong., 2d Sess., (1992)
(prepared statement of Jamison M. Selby, Deputy
Legal Advisor, Department of State)                            23, 34, 54

Arthur Conan Doyle, The Adventures of the Speckled
Band, quoted in Conners et al., Convicted by Juries,
Exonerated by Science: Case Studies in the Use of DNA
Evidence to Establish Innocence After Trial (U.S.
Department of Justice, National Institute of
Justice: June 1996)                                                    26

U.S. Department of State, United States-Hong Kong
Policy Act Report, March 31, 1995                          35, 36, 39, 44

U.S. Department of State, China Country Report
on Human Rights Practices for 1996," Jan. 1997             35, 36, 39, 44

"Sense of the Senate Resolution," S.Res. 271,
104th Cong., 2d Sess., 142 Cong. Rec. S 7339
(daily ed. June 28, 1996)                                          37, 43

Pub. L. 104-107, Title V, § 576(b), February 12,
1996, 110 Stat. 750                                                    41

Hong Kong Bill of Rights Ordinance, Cap. 383,
8 June 1991 (See Third Affidavit of Counsel
in Support of Jerry Lui's Amended Petition
for a Writ of Habeas Corpus, filed on 11/13/96)                        42

141 Cong. Rec. S 5557 (daily ed. April 7, 1995)
(statement of Sen. Mack)                                               43


      STATEMENT ON APPELLATE JURISDICTION AND STANDARD OF REVIEW

      Lui agrees with the government that the district court has habeas

corpus jurisdiction pursuant to 28 U.S.C. § 2241(c)(3), and that this

Court has jurisdiction pursuant to 28 U.S.C. § 2253 to review the order

entered by the district court.  However, no question of law other than

those decided by the district court are before this Court pursuant to §

2253.  The government includes a second question (concerning "probable

cause") in its statement of issues, as well as argument concerning same at

pp. 46-50 of its brief, and the Appendix (Volume II) includes matter

relating to probable cause claims made by Lui in the district court.  The

order under review expressly did not reach Lui's probable cause claims.

A. 178.  Because § 2253 confers no jurisdiction upon this Court to

determine issues not covered by the district court's order, Lui's brief

does not include any substantive response to the government's probable

cause argument.

     The district court's order was limited to a determination concerning

the jurisdiction of the Magistrate Judge to certify to the Secretary of

State that Lui may be extradited to the United Kingdom's Crown Colony of

Hong Kong ("CCHK") under present circumstances.  Hence that court

expressly did not decide Lui's probable cause nor, indeed, his Due Process

and international law claims.  A. 178.  In addition to the lack of

jurisdiction to consider these claims under 28 U.S.C. § 2253, they are not

ripe for review because the factual record on these claims is voluminous

and Lui is entitled to supplement the factual record in further district

court proceedings in the event that this Court reverses.  While the

parties filed legal and factual submissions concerning these claims, the

district court conducted no proceedings (neither hearings nor oral

argument) pertaining to those submissions.  Accordingly, in the event this

Court were to reverse the district court's order, Lui would be entitled to

a remand for further proceedings pursuant to 28 U.S.C. § 2241(c)(3).  See

Clark v. Duckworth, 906 F.2d 1174 (7th Cir. 1990).

     Lui agrees (Government Brief "GB" at 4) that the district court's

interpretation of the Treaty presents a purely legal question and that

this Court's standard of review is de novo.  In re Extradition of Howard,

996 F.2d 1320, 1327 (1st Cir. 1993).

     The district court made fact-findings concerning the identity of the

sovereign which would try and (if he were convicted) punish Lui, as well

as the stages of, and time that would be consumed by, Hong Kong's criminal

proceedings against Lui were he surrendered to the custody of the CCHK. 

A. 179-181.  Though the government does argue that the district court

exceeded its jurisdiction and decided non-justiciable political questions

when it made these factual determinations, it does not claim that these

findings are erroneous.  Accordingly, no question is raised concerning the

standard of review with respect to the accuracy of these fact findings,

which are therefore conclusively established for purposes of this case.1


                        QUESTION PRESENTED

Did the district court rule correctly that the US-UK Extradition Treaty

does not confer jurisdiction upon the Magistrate Judge to certify to the

Secretary of State that she may surrender Lui to the United Kingdom's

Crown Colony of Hong Kong, where it was established that, if so

surrendered, he would not be tried nor punished by the requesting party

under the treaty, but by a sovereign which has no extradition treaty with

the United States -- the People's Republic of China?

                        SUMMARY OF ARGUMENT

      The government has failed to show that the Treaty's text, in light

of its resolution of ratification and its legislative history, confers

jurisdiction upon the Magistrate Judge to certify to the Secretary of

State that she may surrender Lui to the United Kingdom's Crown Colony of

Hong Kong, where it is established that, if so surrendered, he will not be

tried nor punished by that sovereign, but instead by a sovereign that has

no extradition treaty with the United States -- namely the People's

Republic of China.   Before the Magistrate Judge acquires jurisdiction to

issue the certificate requested here, the Constitution's Treaty

Ratification and Due Process Clauses require the Senate, in the first

instance, to certify that it has confidence in the trustworthiness, and in

the fairness of the legal institutions, of the Hong Kong Special

Administrative Region (HKSAR) of the PRC.  When read separately or

together, there is nothing in the Treaty, nor in the Hong Policy Act,

which constitutes such a Senatorial imprimatur.

      The Hong Kong Policy Act was enacted nearly five years prior to Hong

Kong's reversion, in order to establish a mechanism for making appropriate

changes in US laws relating to Hong Kong, in an orderly, coordinated and

timely manner, including a possible Senate-ratified extradition treaty,

depending upon conditions and events during the period prior to, and

after, the change in sovereignty over Hong Kong.  Due to the PRC's delay

in the diplomatic process, a proposed extradition treaty has yet to

receive the constitutionally required expression of the Senate's reliance

upon the PRC and Hong Kong's post-reversion legal institutions.  This

Court is therefore prohibited by the Constitution from presuming a treaty-

making judgment which has yet to be made by both political branches. 

According to the government, the political question concerning extradition

of persons found in the US to Hong Kong's post-reversion courts and

prisons is to be presented imminently to the Senate for evaluation in

light of current events in Hong Kong's transition to PRC rule.  The

judiciary is powerless to anticipate the Senate or fill the gap. 

      The habeas corpus claim at issue is well within the plain meaning of

28 U.S.C. § 2241(c)(3), and is a constitutional challenge to the

jurisdiction of the Magistrate Judge to issue the requested certificate of

Lui's extraditability.  The grant of habeas relief to Lui does not involve

the court in any non-justiciable inquiry or decision concerning any

question assigned to the political branches by the rule of non-inquiry

generally, nor the opinion in Terlinden v. Ames, 184 U.S. 270 (1902) in

particular.

                               ARGUMENT

I.   THE GOVERNMENT HAS FAILED TO REBUT THE CLEAR AND ABUNDANT EVIDENCE       
     IN THE TREATY'S TEXT, ITS RESOLUTION OF RATIFICATION, AND ITS       
     LEGISLATIVE HISTORY THAT THE TREATY DOES NOT AUTHORIZE LUI'S
     EXTRADITION FOR TRIAL AND PUNISHMENT IN THE COURTS AND PENAL SYSTEM 
     OF ANY SOVEREIGN OTHER THAN THE UNITED KINGDOM.

     The government argues that the Treaty and 18 U.S.C. § 3184  authorize

American courts to certify to the Secretary of State that she may

determine whether Lui should be surrendered for trial and potential

punishment by a sovereign which is not signatory to the Treaty.  Its

argument is that, if the UK's extradition request under the Treaty, on

behalf of its Crown Colony, shows on its face that Lui may be surrendered

for trial and punishment in the courts and prisons of the UK's CCHK, the

Treaty endows the Secretary with discretion to surrender Lui for trial and

punishment in the courts and prisons of a sovereign (here, the Hong Kong

Special Administrative Region of the People's Republic of China, or HK-

SAR) which is not a signatory to the Treaty.  GB at 4.

     In stark terms, the government's argument is that the Treaty's

standards for determining whether a person may be extradited to face trial

and potential punishment in the judicial and penal system of the United

Kingdom's colony may, if satisfied, be relied upon by the courts and the

Secretary of State as legal authority, to surrender that person for trial

and punishment by a sovereign with whom the United States has no

extradition treaty -- the PRC.

A.  The Government's Interpretation of the Treaty Ignores the Function
    and Settled Meaning of Extradition By Treaty.

     Extradition by treaty involves more than the involuntary transfer of

a person from the territory of the United States into the custody and

territory of a requesting sovereign.  In the US, extradition is granted

solely to permit the subjection of that person to trial and potential

punishment by, and under the laws of, the requesting sovereign (our

"treaty partner") in its judicial and penal system.  United States v.

Rauscher, 119 U.S. 407 (1886).  The government's argument is that, if met,

the standards set by the Treaty for Lui's extradition to the UK's colonial

judicial and penal system provide legal authority to surrender Lui for

trial and punishment by a sovereign other than the UK.  This argument

ignores the defining premise and exchange of promises in the US-UK

Extradition Treaty: (1) It is a bilateral treaty; as such, (2) the US

agreed to standards which, if met, would oblige our government to

surrender persons in the US to the custody of the U.K. for trial and

potential punishment under U.K. law and sovereignty, and vice versa; (3)

this "rather distinctive treaty" (In re Extradition of Howard, 996 F.2d

1320, 1323) includes an integrated set of standards which are United

Kingdom-specific; and (4) by its ratification of the Treaty, the Senate

certifies its confidence in the basic fairness of the UK's legal

institutions but not those of any other sovereign.

     The district court (A. 183-184) noted correctly that the Treaty's

bilateral premise and exchange of promises correspond perfectly to the

Supreme Court's definition of extradition:

     ...the surrender by one state or country to another of an individual
     accused or convicted of an offense outside its own territory and
     within the territorial jurisdiction of the other, which, being
     competent to try and punish him, demands the surrender.

Terlinden v. Ames, 184 U.S. 270, 289 (1902)(emphasis supplied).

B.  The Treaty's Political Offense Provisions Clearly Demonstrate That
    the Treaty Does Not Authorize Extradition For Trial or Punishment Of
    a Relator By a Sovereign Which Is Not a Party to the Treaty.

     A prime indicator that the Treaty does not authorize the courts or

the Secretary of State to surrender Lui for trial and potential punishment

in the judicial and penal system of a non-signatory is found in the

provisions which set out exceptions to the obligation to extradite:  the

so-called "political offense" provisions.  The political offense

provisions are crucial, because their text and legislative history

expressly contemplate that the trial and potential punishment of a relator

must occur under the requesting Party's sovereignty.  The political

offense provisions are what caused this Court in In re Extradition of

Howard, supra, to call the Treaty "rather distinctive."

     Article 3(a) of the Supplementary Treaty states:

          Notwithstanding any other provision of this Supplementary

          Treaty, extradition shall not occur if the person sought

          establishes to the satisfaction of the competent judicial

          authority by a preponderance of the evidence that the request

          for extradition has in fact been made with a view to try or

          punish him on account of his race, religion, nationality or

          political opinions, or that he would, if surrendered, be

          prejudiced at his trial, or punished, detained, or restricted

          in his political liberty, by reason of his race, religion,

          nationality or political opinions.

(emphasis supplied).  A. 26.  Thus, in specified circumstances, Article

3(a) permits a judicial inquiry by the courts of the requested Party

concerning the bona fides of the requesting Party's motives in making the

extradition request and into whether the relator's proposed trial, appeal

and punishment in the requesting Party's courts and penal system would be

prejudiced by reason of his "race, religion, nationality or political

opinions." 

     The government does not argue affirmatively that the prosecutorial

authorities, courts and penal system which may be subjected to Article 3

scrutiny under the Treaty are intended by the parties to be the

institutions of a sovereign other than the requesting sovereign.  The

district court noted correctly that Article 3 "looks to the motive of the

requesting sovereign, not some non-signatory nation." A. 187.

     Rather than argue untenably that Article 3 scrutiny was

affirmatively intended to be applied to the judicial or penal system of

any sovereign other than a Treaty signatory, the government argues

negatively that "there is nothing in its [Article 3's] language that

requires the judicial officer to find a continuity of sovereignty through

trial and punishment" (GB at 17; bracketed material supplied), thereby

suggesting that Article 3 is ambiguous or can be read to mean that the

sovereign that tries or punishes the extraditee need not be the UK.  In

order to resolve this issue, this Court should look to the Treaty's

legislative history, as the district court did (A. 188-190), to be certain

of the meaning of the text and the parties' intentions. Factor v.

Laubenheimer, 290 U.S. 276, 294-95 (1933); In re Extradition of Howard,

supra , 996 F.2d at 1326; Greci v. Birknes, 527 F.2d 956, 958 n.4 (1st

Cir. 1976).  This Court relied upon such legislative history materials to

interpret Article 3 of this very Treaty in In re Extradition of Howard,

supra, 996 F.2d at 1331, concluding: "There is no indication that the

defense was meant as a slur upon, much less an indictment of, the British

legal system."  Ibid.(emphasis supplied).

     The narrowed political offense exception in the Supplementary

Treaty, as initially proposed by the President and the U.K., was amended

by the Senate during the ratification process, and the amended text was

then approved by the President and the UK.  See generally, Jerry Lui's

Addendum of Legislative Materials Cited ("Add.") at 3-43.  The two

principal proponents of ratification of the original version of the

Supplementary Treaty, Abraham D. Sofaer, State Department Legal Adviser,

and D. Lowell Jensen, Deputy Attorney General, relied heavily upon two

factors as a justification for departing, in the US/UK Treaty, from the

traditional and broader political offense provision found in virtually all

other American extradition treaties.  The justification was based upon the

special United States-United Kingdom extradition relationship.  They

argued for ratification of a narrowed political offense exception to

replace the traditional formulation on the following grounds:  (1) The

proposed Supplementary Treaty would apply to the United Kingdom alone, a

stable democracy in which the political process is available to redress

legitimate grievances, and hence politically-based terrorism is not

justified; and, (2) the judicial systems of the United Kingdom and the

United States are very similar and provide a high degree of assurance that

extraditees would be fairly tried and punished:

     Moreover, by using a bilateral treaty to implement this principle,
     we would not alter our extradition laws across the board.  Instead,
     we are able to decide whether to limit the exception on a nation-by-
     nation basis.

     We have chosen the United Kingdom, Mr. Chairman, as our first
     partner in this enterprise in part because of the recent
     United States court decisions I have described.  But the
     United Kingdom is also an ideal nation with whom to begin this
     process from the moral and political point of view.  It is our
     longest and closest ally.  As Mr. Jensen points out in his
     testimony, it was our first treaty partner to agree to an
     extradition regime.  The United Kingdom has one of the most
     open political systems in the world.  It tolerates all
     nonviolent forms of dissent and allows even bitter opponents
     to participate in the political system.

     In addition, the British system of justice provides
     fundamentally fair treatment to all, including both Republican
     and Loyalist terrorists....

     The Diplock courts afford defendants the essential components of
     procedural fairness:  Open trials, witnesses may be called and cross
     examined, the prosecution has the burden of proving guilt beyond a
     reasonable doubt, the defendant has the right to legal counsel and
     an absolute right to appeal.  One of the judges who refused to
     extradite a PIRA terrorist recognized the fundamental fairness of
     the judicial system used in Northern Ireland terrorist cases.  I
     have quoted his statement in this respect in my written testimony,
     and it is instructive.

Supplementary Extradition Treaty Between the United States and the Kingdom

of Great Britain and Northern Ireland:  Hearing Before the Senate Comm. on

Foreign Relations, 99th Cong., 1st Sess. 4-5 (1985) (statement of Abraham

D. Sofaer, Legal Advisor, Department of State).  Add. 7.

     Several Senators expressed doubt about narrowing the political

offense exception because of concern that the fairness of UK courts had

been compromised in Northern Ireland's Diplock Courts.  Id at 29; Add. 18. 

Mr. Sofaer addressed these reservations about the fairness of the United

Kingdom's Diplock courts by assuring the Senate that the Supplementary

Treaty was definitely not suited to extraditions for trial and punishment

in the courts and penal systems of non-democratic regimes:

     Senator Dodd:  ...But would you like to see this kind of
     treaty adopted as a boilerplate language for all extradition
     treaties around the globe?

     Judge Sofaer:  Absolutely not.

     Senator Dodd:  Why not?

     Judge Sofaer:  Because there are nations with whom we will not
     make this kind of treaty.

     Senator Dodd:  Why not?

     Judge Sofaer:  First of all, most significantly, there are
     nations where there is no open system of political opposition
     and dissent.  Second of all is where the system of justice is
     fundamentally unfair.  We would not make this kind of treaty
     with those nations.

     Id. at 20.2  Add. 15.  Before the Senate voted, Sen. Eagleton recounted

the steps the Foreign Relations Committee took to arrive at the text

reported favorably to the floor.  He explained that the narrowing of the

political offense exception was approved by the Committee expressly

because of the due process protections available to extraditees in the

United Kingdom's courts even if compromised to some degree in the Diplock

courts.  99th Cong., 2d Sess., 132 Cong. Rec. S 9119-71 (daily ed. July

16, 1986) at S 9166-7; Add. 38-39.

     This legislative history shows that in all American extradition

treaties prior to the Supplementary Treaty, including the 1972 Treaty with

the U.K., the political offense exception was available to a relator as a

potential defense to a U.K. extradition request for all extraditable

offenses, including economic offenses such as bribery.  This previously

unbroken tradition of broad availability of the political offense

exception reflected a recognition that a foreign government is capable of

mounting a politically abusive prosecution for any offense, be it theft,

bribery, fraud, kidnapping, or murder.  However, for the first time in the

history of American extradition relations, the Supplementary Treaty with

the UK made the political offense exception completely unavailable with

respect to all but a few extraditable offenses, and made it unavailable

for economic offenses.  Article 3(b) of the Treaty limits the availability

of the political offense exception, set forth in Article 3(a), to cases in

which the relator's extradition is sought for certain violent crimes and

weapons offenses specified in Article 1 of the Supplementary Treaty:3

     In the United States, the competent judicial authority shall only

     consider the defense to extradition set forth in paragraph (a) for

     offenses listed in Article 1 of this Supplementary Treaty.

     The government hoists itself on its own petard by arguing (GB at 16-

17 and 31) that the inapplicability of the political offense exception to

Lui's bribery case diminishes its significance in resolving the issues

concerning the meaning of the Treaty as a whole.  America's willingness to

remove the political offense exception defense in this Treaty for

relators, such as Lui, who are sought for economic offenses such as

bribery, was predicated on the fact that relators authorized by its terms

to be extradited would be prosecuted, tried and potentially punished

exclusively in the UK's courts and penal system.  Surely the Senate would

not agree to narrow the protection against political persecution in a

treaty which authorizes extraditions to PRC courts, and it made clear that

it did not in fact do so when it ratified this Treaty. 

C.   The Adoption of the Senate's Declaration, in Its Resolution of   
     Ratification of the Supplementary Treaty, Clearly Shows That the
     Treaty Does Not Authorize Extradition of a Relator For Subjection To
     Trial and Punishment Under a Sovereign Not a Party To the Treaty.

     The Senate did not content itself with the legislative record of the

State Department's assurances that the Treaty's text would be

inappropriate for use in extraditions for trials by any non-democratic or

totalitarian regime.  The Senate enacted a Declaration in its

Resolution of Ratification, which states:

          The Senate of the United States declares that it will not give
     its advice and consent to any treaty that would narrow the political
     offense exception with a totalitarian or other non-democratic regime
     and that nothing in the Supplementary Treaty with the United Kingdom
     shall be considered a precedent by the executive branch or the
     Senate for other treaties.

132 Cong. Rec. S 9120 (daily ed. July 16, 1986).  Add. 44.  The

Declaration and legislative history make it clear that, if the Senate then

had an inkling that someday the Treaty would be used to extradite people

to stand trial in PRC courts: (1) at a minimum, the Senate's Advice and

Consent would have to be sought; and (2) upon exercising its prerogative,

the Senate might decide that the safeguards against political and

discriminatory prosecution (not to mention other provisions) would have to

be completely different.  See  A. 190.

     Contrary to the government's argument (GB at 33-34), the district

court did not label post-reversion Hong Kong as a non-democratic or

totalitarian regime.  The court did fix that label on China -- just as the

State Department does every year in its Human Rights Reports (Add. 93) --

as a basic fact from which to infer that the Declaration means, at a

minimum, that by giving its advice and consent for extraditions to the

United Kingdom, the Senate has not given approval for extraditions to any

political subdivision of the PRC, including post-reversion Hong Kong. 

Hong Kong is not a sovereign.  At present, it is under United Kingdom

sovereignty.   In a few weeks, it will be part of the PRC.4  The Senate's

Declaration certainly means that those who negotiated and ratified the

Treaty never intended it to be relied upon by the courts or the Secretary

of State to extradite Lui to Hong Kong under circumstances where he would

be subjected to trial and punishment under PRC sovereignty, without the

Senate having first having concluded that post-reversion Hong Kong will be

sufficiently different from the rest of China to warrant an extradition

relationship based on a treaty which was adopted for America's

relationship with one of the world's oldest and most stable democracies,

the United Kingdom.

     The Senate's Declaration also means that the inclusion of a narrowed

safeguard against political and discriminatory prosecutions in extradition

relationships with any foreign sovereign other than the UK requires a

treaty that has been approved by the Senate.  The Senate has yet to

exercise its Advice and Consent concerning treaty safeguards against

political and discriminatory prosecutions to cover trials in Hong Kong's

post-reversion courts and sentences in its prisons.  Under the due process

and treaty ratification clauses, it is for the Senate to revisit

extradition policy toward Hong Kong.  This will occur when the Executive

presents a proposed treaty. See Proposed Treaty attached to Affidavit of

Jamison Borek; A. 28.Clearly, the Senate demands and expects to be

consulted if the Administration wishes to apply the Treaty's provisions to

a non-democratic sovereign.  Consequently, the Executive has consistently

stated, both before and after enactment of the 1992 Hong Kong Policy Act,

that it would seek Advice and Consent.  See infra at 34 & 39.  No such

treaty is currently in force.  This Court should reject the government's

invitation to trench upon the Senate's prerogative by stretching the

Treaty beyond the breaking point merely to effectuate Lui's extradition to

face trial and punishment in Hong Kong's PRC-controlled courts and

prisons.

D.   When Read In Light of The Treaty's Political Offense Exception, the
     Warrant, Dual Criminality, and Specialty Provisions Also Demonstrate
     That the Treaty Does Not Authorize Extradition For Trial or
     Punishment Of a Relator By a Sovereign Which Is Not a Party to the
     Treaty.

     The government argues (GB at 12-20) for an untenable interpretation

of the Treaty, as if its political offense provision were severable from

and irrelevant to the meanings of its warrant, dual criminality and

specialty provisions. On the contrary, every treaty provision should be

interpreted consistently and coherently with every other provision.

     First, the government's argument ignores the significance of the

political offense exception within the fully integrated Treaty.  Article

3(a) is designed to protect a relator from being extradited if he can

prove to the extradition judge that, if surrendered, he would suffer

political or discriminatory prosecution, or abuse in the requesting

country's criminal justice system.  As the Supplementary Treaty's

legislative history shows, American extradition treaties have

traditionally included a political offense exception, all the while

providing the means to assure that international fugitives be brought to

justice.  This "rather distinctive treaty" must be read as a whole because

it establishes an "historic", albeit carefully delimited, "re-balancing"

of international cooperation in criminal law enforcement with the policies

underlying the political offense exception.  In re Extradition of Howard,

supra at 1330.

     Second, and most importantly for this case, the Treaty includes a

narrowed political offense exception.  The balance between authorized

extraditions and those that are barred by the political offense exception

in this Treaty is United Kingdom-specific.

     Contrary to the government's argument, the warrant clause does not

mean that process demanding the surrender of the relator for trial in the

courts of the requesting sovereign authorizes the requested Party to

surrender him for trial in the courts of any other sovereign.  To read the

warrant provision in any other way is nonsensical.  Such a reading would

also be inconsistent with the premise underlying the political offense

exception -- that one extradited under the Treaty is certified for trial

in UK courts exclusively.5

     Similarly, there would be untenable dissonance between the Treaty's

provisions, if the dual criminality provision, which assures that the

charged offense is criminal under the laws of both treaty partners, were

to authorize extradition for trial in PRC courts.  The Treaty does not

constitute America's agreement to extradite people to face bribery

charges, as the PRC might define and apply bribery law, but only to face

prosecution and punishment for bribery as the UK defines and applies its

bribery laws.6  A contrary conclusion is nonsensical and inconsistent with

the narrowed political offense exception.

     The same analysis applies to the government's argument concerning

the specialty provision.  According to the government, Article XII of the

Treaty has no bearing on whether the Treaty authorizes Lui to be

surrendered by the Secretary to be tried or punished by the PRC.  The

government asserts that specialty protection may be waived by the

Secretary, and therefore the Secretary could surrender Lui to the PRC or

any other sovereign once he is certified as extraditable at the request of

the UK.

     Such an interpretation of the Treaty's specialty provision cannot be

reconciled with a political offense exception designed to protect against

political persecution at the hands of relatively benign UK authorities. 

Does it make sense to suggest, as the government has, that a relator

certified as extraditable at the request of the UK may be surrendered by

the Secretary to face the courts of a sovereign other than the UK, even

though the danger of political or discriminatory prosecution may be

entirely different than in the UK?

     Under Article XII's rule of specialty, which must be read together

with the warrant, dual criminality, and political offense provisions, the

personal jurisdiction and custodial power over the relator which are

conferred upon the requesting sovereign by a surrender pursuant to the

Treaty, is conferred to allow for the adjudication of the surrendered

person's guilt solely under the criminal laws of the requesting sovereign

and, in the event of conviction, punishment in the penal system of that

sovereign alone.

     Another aspect of Article XII's specialty protection requires an

express undertaking by the requesting Party that, before the relator may

be charged and proceeded against for an offense other than those for which

he certified extraditable, the requesting Party must provide him with a

30-day opportunity to return, at the conclusion of his trial or sentence,

to the territory of the sovereign from whence he was surrendered.  When

read in light of the ratification history, this provision in Article XII

and the warrant requirement together establish a central element of the

Treaty, to wit:  Jurisdiction and custodial power over the relator

surrendered under the terms of the Treaty are conferred by the requested

Party exclusively upon the prosecutorial and judicial arms of the

requesting party, our trusted treaty partner.  It is evident that no one

intended that the Article XII specialty assurances given to the US by our

treaty partner the UK, would be transferred, by the fact of Hong Kong's

reversion to PRC sovereignty, to a sovereign that is not only not the US's

treaty partner, but is precisely the kind of non-democratic, totalitarian

sovereign that the Senate warned against in the Declaration.

     Contrary to the Magistrate Judge's view (A. 229), nothing in Article

XII nor any other provision of the Treaty authorizes certification of Lui

to the Secretary so that she alone may decide, in her discretion, whether

or not to surrender Lui.  The Magistrate Judge envisions such an exercise

of discretion by the Secretary, based upon her unilateral determination

that, among other things, the PRC -- a sovereign which is neither the

requesting Party nor even a signatory to the Treaty -- would nonetheless

abide by Article XII and the rule of specialty.  However, in the instant

case it is conclusively established that if Lui were surrendered to Hong

Kong, he would be tried and, if convicted, punished by the PRC (A.

126-128, 238-243).  Nowhere does the Treaty's text or legislative history

authorize a relator's surrender to Hong Kong for such a trial and

punishment.7

E.   The Cases Principally Relied Upon By the Government and the
     Magistrate Judge Do Not Support a Conclusion That the Treaty
     Authorizes Lui's Extradition.

     In determining that the Treaty authorizes Lui's extradition, the

Magistrate Judge relied heavily upon Oen Yin-Choy v. Robinson, 858 F.2d

1400 (9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Cheng Na-Yuet v.

Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977 (11th Cir.

1991); and Matter of Extradition of Tang Yee-Chun, 674 F. Supp. 1058

(S.D.N.Y. 1987), as does the government.  None of these cases support the

Magistrate Judge.

     First, none of those Courts were aware of the evidence presented

here that several provisions of the Treaty (not just Article XII), when

read in light of the history of its adoption, require the conclusion that

the Treaty does not authorize Lui to be extradited to Hong Kong in

circumstances where he would be subjected to trial and punishment in the

judicial and penal systems of the PRC.8  To the extent the Oen and other

Courts addressed the issue of whether a relator may be surrendered to Hong

Kong even though his potential sentencing exposure extended beyond the

reversion date, these courts wrongly inferred that, because the 1984 Joint

Declaration was known to exist at the time that the Supplementary Treaty

was ratified in 1986, the parties to the Treaty impliedly authorized

relators extradited under the Treaty to be subject to the PRC penal

system.  See Oen, 858 F.2d at 1404; Cheng 734 F.Supp. at 993 (quoting

Oen).  This conclusion is clearly in error in the face of the actual

record made at the time of the Treaty's adoption.9  Further, as the record

surrounding the subsequently enacted Hong Kong Policy Act shows, the

United States had not yet determined whether the PRC would implement its

undertakings under the Joint Declaration, and the only thing that was

known as late as 1992 about American treaty relations (including

extradition relations) with post-reversion Hong Kong was that American and

PRC intentions remained unknown. See Hong Kong's Reversion to China and

Implications for U.S. Policy: Hearing Before the Subcomm. on East Asian

and Pacific Affairs of the Senate Comm. on Foreign Relations, 102nd Cong.,

2d Sess., 17 (1992) (prepared statement of Jamison M. Selby, Deputy Legal

Advisor, Department of State) quoted infra at 33-34.    

     Contrary to the government's argument (GB at 19-20), America's

extradition treaties and laws have never been interpreted and applied as

if they authorize the Secretary to do anything which is not expressly

prohibited, to a relator who has been certified extraditable.  A person is

determined to be extraditable with respect to only certain offenses and

may be surrendered by the Secretary for trial and punishment exclusively

by the requesting sovereign.  Under the Treaty and the extradition

statutes, 18 U.S.C. §§ 3184 and 3186, a person is not certified

extraditable on terms which confer on the Secretary exclusive and

unlimited discretion to surrender the relator for trial and punishment by

any sovereign whose criminal justice system enjoys the Executive's

confidence, even if that sovereign is not a treaty partner.10

F.   In View of the Clear Intention Expressed in All of the Other
     Provisions of the Treaty, Including its Narrowed Political Offense
     Exception, That Relators May Be Surrendered Exclusively For Trial in
     United Kingdom Courts, No Contrary Inference Can Be Drawn From the
     Date When the Treaty Went Into Force. 

     Undaunted by the evidence that the Treaty does not authorize the

instant extradition, the government argues (GB at 20-21) that, because the

reversion event was known at the time the Treaty was ratified and made

applicable to Hong Kong, the absence of a provision expressly prohibiting

extraditions to HK-SAR courts supports an inference that the Treaty

authorizes extradition of Lui for trial and punishment in the PRC.  Yet

the record is replete with evidence that rebuts any such inference.11

G.   The Issue Is Whether the Treaty Confers Jurisdiction on the Courts
     and the Secretary of State to Surrender Lui for Trial and Potential
     Punishment Under PRC Sovereignty In Hong Kong -- Not Whether the
     Treaty Prohibits It. 

     The government would prefer this Court to avoid inquiring whether

the Treaty authorizes Lui's extradition for trial in PRC-controlled Hong

Kong, because a negative answer to that inquiry is overwhelmingly proven

by the evidence.  The government wants to deflect the Court from inquiring

whether the Treaty authorizes Lui's extradition, by asking the Court to

determine instead whether the Treaty expressly prohibits Lui's

extradition.  The government's effort to reverse the question presented

fails for two reasons. 

     First, when American courts consider jurisdictional and similar

questions concerning the existence and scope of government power to

deprive persons of liberty, it must show that its power is expressly

established by law.  Ours is a government of limited powers, and one set

of limitations is contained in the Due Process Clause of the Fifth

Amendment.  The existence of government power to extradite Lui for trial

in the PRC cannot be inferred as urged by the government.  Such power must

be expressly conferred upon the Magistrate Judge and the Secretary by a

Senate-ratified treaty with the PRC.  To frame the question by asking

whether any law, including the Treaty, expressly prohibits Lui from being

extradited for trial and punishment in the PRC is to ignore the

fundamental premise of our free society: A government of limited powers

which may deprive persons of liberty only by Due Process of Law.

     The issue in this case is:  Does the Treaty authorize Lui to be

certified as extraditable for trial and potential punishment by a

sovereign other than United Kingdom?  The question is not:  Does the

Treaty expressly prohibit such an extradition?

     Second, even if the issue were framed to inquire whether the U.K.

Treaty prohibits extradition of a relator for trial and punishment in the

PRC, Lui is entitled to habeas relief, because the Senate enacted a

Declaration in its Resolution of Ratification which affirmatively

prohibits the use of the Treaty, without the Senate's approval, to

extradite anyone for trial or punishment in PRC courts.

H.   Lui Is Not Urging this Court to Read an Exception into the Treaty;
     Nor Would the Court Be Abrogating or Violating the Treaty If It
     Granted Lui's Petition.  

     In its brief the government argues that by granting Lui's petition

this Court would effectively "abrogate" the Treaty.  The government

accuses the district court of reading an "exception" into the Treaty which

would exclude extraditions of persons to face trial in PRC courts.  To the

contrary, the evidence is overwhelming that the Treaty does not authorize

the surrender of persons for trial or punishment in Hong Kong's PRC

courts.  Moreover, the Senate's Declaration affirmatively prohibits the

use of its provisions for such a surrender without a new treaty ratified

by the Senate.  Similarly, the government argues that the Court would

"violate" the Treaty were it to grant Lui's petition.  To the contrary,

extradition of Lui at the request of the UK, which would subject him to

trial and punishment in PRC courts, would violate the Treaty.  Because

Lui's continued incarceration is predicated on a violation of the Treaty,

the extradition laws, and the Constitution, he is entitled to habeas

corpus relief.

I.   Executive Interpretation of the Treaty Cannot Override Either the
     Treaty's Clear Meaning or the Senate's Prerogative.

     The government admonishes the Court to heed the executive's

interpretation of the treaties the Secretary is charged with implementing,

and argues that "while not conclusive," such interpretation "must be given

considerable weight, and will be controlling unless contrary to the plain

language of the treaty." (GB at 39).  The government concedes that

executive interpretation is not the final word, since this Court has so

held.  Greci v. Birknes, 527 F.2d 956 (1st Cir. 1976).  However, if one

indeed gives "considerable weight" to the executive's interpretation, then

it is clear that the US/Hong Kong extradition relationship governing

trials in the post-reversion era requires Senate ratification, since the

executive has stated to the Congress and to the Senate, time and again,

that the US/UK treaty will have to be replaced by a new treaty (Add. 74),

and the executive has confirmed that it would submit the new treaty for

ratification.12

     This Court has noted that executive interpretation and practice are

to be given weight in interpreting treaties, along with such factors as

"the history of the relations between the two countries, the terms of the

current extradition treaty, the official position of the Department of

State, and the relevant rules of law."  Sabatier v. Dabrowski, 586 F.2d

866, 869 (1st Cir. 1978).  It is established that, if Lui were

surrendered, he would be tried and potentially punished by the PRC.  The

history of relations between the US and the PRC, insofar as extradition is

concerned, is crystal clear:  We have never had an extradition treaty with

China.  As for the "terms of the current extradition treaty," as we have

argued here, the Senate that ratified the US/UK treaty made it clear that

it was an inappropriate vehicle for extraditions to the courts of any

other sovereign, particularly a non-democratic, authoritarian sovereign. 

The "official position of the Department of State," as noted, is that

extradition to post-reversion Hong Kong would require a new Senate-

ratified treaty.  Finally, the phrase "relevant rules of law" surely must

include the Advice and Consent Clause, since the Constitution is an

extraordinarily "relevant rule of law" when it comes to apportioning power

between and among the branches of government.

     This Court was on firm footing in noting the importance of "relevant

rules of law."  In the only case in which the Supreme Court has opined on

the subject, the Court noted the relevance of the practice of the two

treaty partners.  In Terlinden v. Ames, 184 U.S. 270 (1902), the issue was

whether the US extradition treaty entered into with a predecessor

component of the German Empire was still in force and effect by the time

the Empire subsumed the earlier entities with which the US had such

treaties.  The Court noted that the "convention in question is regarded as

in force both by the United States and by the German Empire," and it

considered the interpretation, understanding, and practice by the two

sovereigns to be of importance in the judicial interpretation of the

treaty.

     However, the government derives no support from Terlinden,

notwithstanding a brave effort in its brief. (GB at 5, 25-26). In the

first place, the predecessor entity which ultimately was melded into the

German Empire was a treaty partner of the United States.  The Court

described the historical process by which the Empire was formed as one of

"absorption" (184 U.S. at 283) and the creation of a "composite" state

(184 U.S. at 285).  "It does not necessarily follow," concluded the Court,

"that the Kingdom of Prussia [with which the U.S. had an extradition

treaty] lost its identity as such."  (184 U.S. at 285)  As the district

court correctly ruled, Hong Kong's reversion to the PRC is quite

different.  Hong Kong was never a sovereign, as was Prussia.  Hong Kong

was a colony, under UK sovereignty, and, shortly, will become part of the

territory of a different sovereign -- the PRC.  Thus, Terlinden does not

help the government's position.

     Furthermore, the Court in Terlinden, in delineating the proper

spheres for the executive and judicial branches, respectively, stated: 

"The treaty is therefore a law made by the proper authority, and the

courts of justice have no right to annul or disregard any of its

provisions, unless they violate the Constitution of the United States." 

184 U.S. at 288 [emphasis added].  Only after noting the controlling role

of the Constitution, and of the branch charged with constitutional

interpretation and enforcement, did the Court proceed to the language

concerning the primacy of the "Executive Department of the government to

conduct our foreign relations."  "The decisions of the Executive

Department in matters of extradition, within its own sphere, and in

accordance with the Constitution, are not open to judicial revision," and

only when the executive acts "regularly and constitutionally...under the

acts of Congress" is judicial intervention "by writs of habeas corpus"

inappropriate.  Id. at 289 [emphasis added].

     The Secretary of State will have an enormous amount of leeway, to be

sure, in managing an extradition relationship between the US and the HK-

SAR -- once two-thirds of the Senate agree that such a relationship should

be put into place.  Until that political decision is made by the Senate,

this Court may not be enlisted to provide a judicially-fashioned deus ex

machina to provide the Department of Justice with an unauthorized and

unconstitutional extradition relationship with its counterpart in Hong

Kong.  By affirming the district court, this Court would not be destroying

an extradition relationship; it would simply be refusing to usurp the

Senate in creating one.

J.  The District Court's Interpretation of the Treaty Is Consistent With
    the Hong Kong Policy Act.

     The government claims (GB at 34-35) that the district court's

interpretation of the Treaty is "at odds" with the Hong Kong Policy Act,

since the Act expresses "support" for the Sino-British Joint Declaration. 

However, by declaring "its wish to see full implementation of the

provisions of the Joint Declaration" in 22 U.S.C. § 5701(2)(emphasis

supplied), Congress did not state that China had or would implement its

terms.  Neither did the President make any such statement in 22 U.S.C. §

5701(3).  Read as a whole, the Act establishes a mechanism which requires,

where constitutionally required treaty-making is involved (as in

extradition relations), decision-making by both political branches

concerning the PRC's hoped-for implementation of the Joint

Declaration.

     The government claims that the first sentence of § 5721(b) is a

legislative determination that the existing UK Treaty authorizes

extraditions to courts and prisons under PRC sovereignty, or even that

such extraditions should continue after reversion, "where possible." GB at

35.  The government's argument suffers from three defects.

     First, the first sentence of § 5731 does not carry the meaning

ascribed to it by the government.  As the district court correctly ruled,

"the Act is only evidence that Congress supports the continuation of

treaties with Hong Kong according to their own terms." A. 196 (emphasis in

original).  The Treaty does not authorize extraditions of persons whose

surrender would subject them to the custody of courts and prisons under

PRC sovereignty, and the first sentence does nothing to change that.

     Second, the government quotes part of a sentence from the Act's

legislative history (GB at 35) -- "the most important existing agreement

that was concluded as a treaty" -- to misleadingly suggest that the UK

Extradition Treaty, above all others, would likely remain in force beyond

the reversion date because of the importance of extradition.  The

Legislative history states that exactly the opposite is true.  The phrase

misleadingly quoted by the government is part of an answer the State

Department's Legal Adviser gave to the following question put by the

Senate Committee on Foreign Relations: "Will pre-1997 international

agreements between the U.S. and Hong Kong continue in force after July 1,

1997?"  The State Department replied:

     Answer:  Under ordinary rules of international law, when part of the
     territory of one state becomes territory of another state, the
     international agreements of the predecessor state cease to have
     effect in respect of that territory and the international agreements
     of the successor state come into force there.  Under these
     principles, unless the United States and the PRC agree to a
     different rule, all U.S. bilateral agreements that now apply to Hong
     Kong will cease to do so after reversion, and U.S.-P.R.C. agreements
     will then begin to apply in Hong Kong.

          The Joint Declaration and the Basic Law (the PRC statute that
     implements the Joint Declaration) provide that international
     agreements to which the PRC is not a party but which are implemented
     in Hong Kong "may remain implemented in the Hong Kong Special
     Administrative Region."  This suggests that the PRC may intend for
     some of our current agreements to continue in force.  We are
     reviewing this issue, but have not yet reached a firm understanding
     of either the process to be followed or which agreements merit
     retention.

          Whether U.S. bilateral agreements currently applied in Kong
     could continue in force without new legislation would depend on a
     case by case analysis of the authority on which each agreement was
     concluded.  Most of the bilateral U.S.-U.K. agreements that now
     apply to Hong Kong were concluded as executive agreements and, we
     believe, could be continued in force -- assuming international legal
     issues are resolved -- without new legislation.  With respect to the
     most important existing agreement that was concluded as a treaty--
     on extradition -- we are now negotiating with the Hong Kong
     Government on a new treaty, to replace the existing U.S.-U.K.          
     agreement, which would continue in force after reversion to the PRC.
     Consistent with U.S. practice in the extradition area, we intend to
     seek Senate advice and consent to such a treaty if negotiations are
     successful.

[government-quoted phrase bolded]  Hong Kong's Reversion to China and

Implications for U.S. Policy: Hearing Before the Subcomm. on East Asian

and Pacific Affairs of the Senate Comm. on Foreign Relations, 102nd Cong.,

2d Sess., 17 (1992) (prepared statement of Jamison M. Selby, Deputy Legal

Advisor, Department of State).  Add. 49.  In reality, the legislative

history states that some bilateral agreements, such as certain executive

agreements with the Crown Colony, could remain in force post-reversion,

provided that the PRC agrees.  However, important treaties, such as the UK

extradition treaty, will lapse upon reversion, and a new treaty will have

to be negotiated and submitted for Senate ratification. The district court

properly cited and quoted from this same legislative history in rejecting

the government's Hong Kong Policy Act arguments and in reaching the

following conclusion concerning the Act:

     It is apparent, therefore, that Congress passed the Act with the
     understanding that any extradition to China for trial and punishment
     would require the approval of a new treaty with Senate advice and
     consent.

A. 195-196.

     Third, the government's argument concerning the Act ignores the last

sentence of § 5721(b), which states:

     If in carrying out this subchapter, the President determines that
     Hong Kong is not legally competent to carry out its obligations
     under any such treaty or other international agreement, or that the
     continuation of Hong Kong's obligations or rights under any such
     treaty or other international agreement is not appropriate under the
     circumstances, such determination shall be reported to the Congress
     in accordance with section 5731 of this title.
     [emphasis supplied].

     In the President's Hong Kong Policy Act Report dated March 31, 1995,

Congress was informed that, as of that date, an extradition treaty had

been initialled by the PRC and the United States, and that, after the

parties formally sign the proposed treaty, it would be submitted for

Senate ratification.  A. 260.  The President's report was issued pursuant

to §§ 5721(b) and 5731 of the Policy Act, and for that reason it

constitutes a determination by the President as to whether it would be

appropriate for the existing US-UK extradition treaty to continue beyond

the reversion date.  By reporting that a new treaty would be submitted for

ratification, the President effectively and unambiguously determined that

"the continuation of Hong Kong's obligations or rights under any such

[extradition] treaty ... is not appropriate under the circumstances....  §

5721(b)(bracketed word and emphasis supplied).  See also § 5731(5)(Report

must itemize "treaties and other international agreements with respect to

which the President has made a determination described in the last

sentence of section 5721(b)..." (emphasis supplied)).

     The President's 1995 Hong Kong Policy Act Report is not mentioned in

the government's brief because it directly contradicts its erroneous

assertion that, by enacting the Act, Congress and the President stated and

agreed that the existing Treaty (with its narrowed political offense

provision) should continue in force through and beyond the reversion date. 

The reality is that both the President and the Congress have always

agreed to just the opposite extradition treaty policy --  the existing

Treaty does not authorize, and is not appropriate for, extraditions of

persons to PRC courts and prisons, and the President has stated that it

will take a new, Senate-ratified extradition treaty with the PRC for that

to occur.  Unanticipated delays and obstacles encountered by the executive

in obtaining Senate ratification do not justify the judiciary's filling in

the gap.

II.  CONTRARY TO THE GOVERNMENT'S URGING, THIS COURT SHOULD NOT DETERMINE
     WHETHER, WHEN, AND ON WHAT TERMS EXTRADITION RELATIONS WITH
     POST-REVERSION HONG KONG SHOULD CONTINUE, BECAUSE THE CONSTITUTION AND
     THE HONG KONG POLICY ACT REQUIRE THOSE POLICY QUESTIONS TO BE
     DECIDED BY BOTH POLITICAL BRANCHES.

     Having failed to show, by reference to its text, resolution of

ratification, or legislative history that the UK Treaty reflects the

Senate's imprimatur of faith in the fairness and humane treatment that

will be afforded by PRC courts and prisons in post-reversion Hong Kong,

the government claims nonetheless that the courts are empowered to certify

that the Executive alone may determine what impact Hong Kong's reversion

to China should have on extraditions to Hong Kong's post-reversion

criminal justice system, including Lui's extradition. ("...the reversion

issue should be left for the Secretary of State to consider, who alone has

the tools and the power to evaluate this issue and to take whatever

action, if any, is appropriate..."  (GB at 27, emphasis supplied)  The

treaty ratification and due process clauses as well as the Hong Kong

Policy Act require this Court to insist that extraditions to post-

reversion Hong Kong be certified for the Secretary's action only after the

Senate has exercised its power of Advice and Consent.

     As will be detailed below, the complex policy issues involved in

whether, and on what terms, there should be continuity in extradition

policy toward post-reversion Hong Kong present political questions likely

to become extremely controversial in the Senate in the immediate future. 

By amending the Hong Kong Policy Act in 1996, Congress insisted that

Senate prerogatives be respected.  The amendment required more detailed

Presidential reporting under the Act concerning China's implementation of

the Joint Declaration.  The newly-required additional reporting is highly

pertinent to the Senate's impending decision whether Hong Kong's post-

reversion legal institutions and criminal justice system merit continued

extradition relations.  Further, the Senate has been actively expressing

its views as a legislative body concerning China's apparent non-compliance

with the Joint Declaration, as in its 1996 "sense of the Senate"

resolution.  See infra at 43.  Add. 86.

     The extradition policy question presented by this case has yet to

reach the Senate because the submission of a proposed treaty has been

delayed by an unexpectedly prolonged diplomatic negotiation with the PRC.

For purposes of deciding this case, however, it is clear that the

extradition magistrate and the Secretary, aided by the courts, may not

certify and then surrender Lui for post-reversion trial and punishment in

the territory of Hong Kong without the constitutionally required Advice

and Consent of the Senate.  Upholding the government's appeal would be to

arrogate to the judiciary and the executive a decision concerning

extradition policy toward post-reversion Hong Kong, which the Constitution

commits in the first instance to both political branches.

     A.   Extradition Policy Toward Post-Reversion Hong Kong:  The Chain
         of Events In the Political Branches.

     The Hong Kong Policy Act became law on October 24, 1992.  It

establishes a mechanism which was to be used during the nearly five-year

period leading up to the reversion to make whatever legal changes were

necessary by reason of that anticipated event.  It was recognized that

some of the legal changes would involve purely executive action, and

others would require the participation of both political branches.  To the

extent that circumstances would warrant and permit, these changes were to

be put in place and ready to come into effect on the reversion date.

     In order to aid the Senate in this process, Section 301 of the Hong

Kong Policy Act (22 U.S.C. § 5731) requires periodic Presidential

reporting to Congress concerning, inter alia:

     (1) significant developments in United States relations with Hong
     Kong, including a description of agreements that have entered into
     force between the United States and Hong Kong;

     (2) other matters, including developments related to the change in
     the exercise in sovereignty in Hong Kong or United States relations
     with Hong Kong;....

As previously noted, the President's March 1995 Hong Kong Policy Act

Report stated that a new extradition treaty applicable to post-reversion

Hong Kong would be required and was being negotiated.  That report states

in pertinent part (Add. 74):

          In July 1994, the U.S. and Hong Kong initialed a new
     extradition treaty to apply to the HKSAR in the period following        
     1997.  This agreement awaits final PRC approval in the Sino-British
     Joint liaison group (JLG).  This agreement will then be submitted to
     the U.S. Senate for ratification.

Though a proposed treaty was initialled and submitted for PRC approval in

the Joint Liason Group in July 1994, it was not approved in that body for

nearly 2 1/2 years, and was not signed until December 20, 1996.  The

proposed treaty is still awaiting transmittal by the President to the

Senate for ratification.  Declaration of Jamison Borek ¶2; A. 24.

     The delay in treaty-making which would authorize extraditions to

Hong Kong's post-reversion courts and prisons has created the obstacle to

Lui's extradition.  The Act clearly contemplates that, if possible, the

question of extradition relations with post-reversion Hong Kong's courts

and prisons would be resolved by a ratification debate that would result

in a treaty (if one be ratified at all) which would be in place prior to

the reversion date, but ready to come into force on July 1, 1997. 

Thereafter, the President would monitor post-reversion events, and if he

were to observe that China is not allowing Hong Kong its promised

autonomy, he would have the power, and the expressed support of Congress,

to terminate the treaty or treaties any time "on or after July 1, 1997." 

22 U.S.C. § 5722(a).  The ratification of such a treaty or treaties well

in advance would have closed any gap that otherwise was destined to

appear, for such a treaty would have been an expression of the Senate's

power to declare that extraditions to the Hong Kong SAR's courts and

prisons had its imprimatur.  This would, of course, have precluded any

argument, such as Lui makes here, that a pre-reversion extradition request

that would result in a post-reversion trial was not authorized.  Instead,

China's extraordinarily long delay in initialling a draft post-reversion

treaty caused the executive to fail to submit a treaty to the Senate in a

timely manner; indeed, that initialled treaty has not yet been submitted

for ratification, and reversion is almost upon us.

     Thus was a twilight zone created, into which Jerry Lui fell.  As a

result, the executive branch finds itself without Senatorial authorization

for pre-reversion extraditions for post-reversion trials.  In the absence

of such authorization from its co-equal political branch, it seeks the aid

of its co-equal judicial branch.  The government's problem, of course, is

that Article II, § 2 of the Constitution has not allocated this political

judgment to the judiciary.  There may well be a contest between the

executive branch and the Senate of this question -- and all signs point to

such a battle happening sooner rather than later -- but it is a contest

which neither prudence nor the Constitution entrusts to the judicial

branch.

     During this period of delay (and while this case was pending), the

reporting provision of the Hong Kong Policy Act (22 U.S.C. § 5731) was

amended, on February 12, 1996.  Prior to the 1996 amendment, the Act did

not require the filing of a Presidential report during 1996.  Because of

the 1996 amendment, a Presidential report was required to be filed not

later than March 31, 1996.  Moreover, the 1996 legislation asserts that

there were "deficiencies" in the previously submitted Presidential Reports

under the Act and requires additional detailed reporting of information: 

          In light of the deficiencies in reports submitted to Congress
     pursuant to section 301 of the United States-Hong Kong Policy Act
     (22 U.S.C. 5731), the Congress directs that the additional report
     required to be submitted under such section by subsection (a) of
     this section [requiring an additional report to be submitted not
     later than Mar.31, 1996] include detailed information on the status
     of, and other developments affecting, implementation of the Sino-
     British Joint Declaration on the Question of Hong Kong, including --
          (1) the Basic Law and its consistency with the Joint
     Declaration;
          (2) the openness and fairness of elections to the legislature;
          (3) the openness and fairness of the election of the chief
     executive and the executive's accountability to the legislature;
          (4) the treatment of political parties;
          (5) the independence of the judiciary and its ability to
     exercise the power of final judgment over Hong Kong law; and
          (6) the Bill of Rights.

Pub. L. 104-107, Title V, § 576(b), February 12, 1996, 110 Stat. 750

(emphasis supplied).  Add. 85.

     Congress's insistence upon detailed executive reporting not later

than March 31, 1997, about the independence of Hong Kong's judiciary as

well as its power of final judgment concerning Hong Kong law, and the

status of Hong Kong's Bill of Rights Ordinance (Add. 87), focusses

directly on currently fast-breaking events during Hong Kong's transition

to PRC sovereignty.  It is thus highly pertinent to extradition policy

over which the Senate has pivotal control under the Constitution.

     The legislative history of this amendment, which was sponsored by a

Co-Chair of the Congressional Caucus on Hong Kong, Senator Connie Mack,

shows that Congress is insisting on detailed information, which it must

receive on or before March 31, 1997, pertinent to upcoming Hong Kong

treaty ratification debates, including the impending extradition treaty

debate, because of concern over China's actions leading up to the

reversion:

          The People's Republic of China's manipulation of the joint
     liaison group is part of the People's Republic of China's 10-year
     pattern of reneging on its commitments under the joint declaration. 
     Notwithstanding the recent public relations tour though the United
     States by Lu Ping, Beijing's top Hong Kong official, the People's
     Republic of China has repeatedly displayed its contempt for the
     joint declaration.  Five years ago this week, in April 1990, Beijing
     codified significant deviations from the joint declaration in the
     basic law, the so-called miniconstitution for post-1997 Hong Kong
     that Beijing wrote and rubberstamped in its National People's
     Congress.  The basic law subordinates the Hong Kong Legislature to
     the Beijing-appointed executive, and assigns the power of judicial
     interpretation to the standing committee of the National People
     [sic] Congress rather than to Hong Kong's judges.  The basic law's
     provisions on the legislature may become moot however, since the
     People's Republic of China has promised or threatened to dismantle
     the Legco and Hong Kong's two other tiers of government.

          Beijing also threatens to abolish the Bill of Rights, enacted
     by the Legco in 1991 in reaction to the Tiananmen Square Massacre,
     and over the objections of the Hong Kong government.  Finally, a
     high official of the Chinese supreme court has suggested that
     Beijing will replace Hong Kong's common law system, which is
     synonymous with individual rights and the rule of law with a civil
     law system.  China's own civil law system is explicitly subordinated
     to the Communist Party.

          The status of plans for establishing a high court before 1997
     is cause for concern as well, and here the report's brief treatment
     of the issue is troubling.  The details of a Court of Final Appeal,
     to replace the Privy Council in London, as the territory's highest
     court were agreed to in the joint declaration.  The U. S.-Hong Kong
     Policy Act report mistakenly accepts the 1991 agreement between the
     British Government of Hong Kong and China as a basis for the Hong
     Kong government's legislation implementing the court.  The 1991
     agreement explicitly violates the joint declaration and basic law.
     Accordingly, democratic legislators plan to amend it to bring it
     into accord with the joint declaration.

141 Cong. Rec., S 5557 (daily ed. April 7, 1995)(statement of Sen. Mack);

Add. 83.

     Shortly after Congress amended the Hong Kong Policy Act, the Senate

on June 26, 1996 adopted a Sense of the Senate Resolution protesting that

China's intention to abolish Hong Kong's Legislative Council, which was

elected for a 4-year term expiring in 1999, and to appoint a provisional

legislature to replace the elected legislature as of July 1, 1997, "would

be a violation of the Joint Declaration."  S.Res.271, 104th Cong., 2d

Sess.; Add. 86.

     This chain of legislative events, the text of the Act (as amended),

and its legislative history all signify that: (1) contrary to the

government's argument, the Secretary of State has no power to act alone in

determining in the first instance whether persons found in the US may be

extradited to the PRC's courts and prisons in Hong Kong; (2) nothing in

the Hong Kong Policy Act can be relied upon as an expression of

Congressional assent to such extraditions; and, (3) the district court

ruled correctly that the Treaty, alone or in combination with the Act,

does not provide the courts with jurisdiction to certify to the Secretary

that she may surrender Lui to Hong Kong for trial or punishment under PRC

sovereignty.

     B.   The President's Powers and Duties Under the Act.

     The government argues erroneously (GB at 35) that "[T]he Act 

reemphasizes the principle of the rule of non-inquiry that it is the

Executive's role to make judgments about foreign countries and their

ability to fulfill treaty obligations."  Presidential determinations under

the last sentence of § 5721(b) do not include the power to determine

whether persons found in the United States may be extradited to post-

reversion Hong Kong's courts and prisons.  That power is reposed in both

political branches by the Constitution.  Neither does the §5721(b)

"determination" power confer on the President the ability to amend the UK

treaty to authorize such extraditions.  All that this provision does is

recognize the President's power to: (1) determine which Hong Kong-related

treaties currently in force are required by law to be replaced by new

treaties that will require Senate ratification, and report that

determination to Congress (as was done with respect to the UK extradition

treaty in the 1995 Hong Policy Act Report, as noted, supra at 39); (2)

determine and report which other international agreements (executive

agreements not requiring ratification) will be replaced, amended, or

terminated for legal or other reasons; and, (3) determine and report that

an extant treaty or executive agreement will be terminated upon reversion.

     It is true that neither the Congress nor the courts have any power

under the Act or otherwise to interfere with or overrule the President's

power to terminate treaties and other international agreements, and the

statements to this effect in the Policy Act are thus simply a recognition

of settled law.  See Goldwater v. Carter, 444 U.S. 996 (1979).  The lack

of power in the Congress and the judiciary to participate in executive

decisionmaking concerning the termination of such treaties and agreements

in no way prevents courts from exercising their habeas jurisdiction to

determine whether a request made under an existing treaty is authorized by

its terms.

     The obstacle faced by the government is that Lui's claims do not

involve treaty termination, but rather enforcement of the Treaty's

requirement that a relator extradited under its terms be tried solely

under UK sovereignty.  What the government is lacking is a clear

expression from the Senate in the form of a treaty which authorizes

extraditions to post-reversion Hong Kong.  Treaty ratification is a very

specific genus of legislative activity.  When the Senate goes about the

task of giving its Advice and Consent to a treaty proposed by the

executive, there is no doubting the nature of the activity, and there is

no misreading the outcome: a treaty is voted either up or down.  Nowhere

in the Act can one find anything resembling treaty ratification.  In the

absence of such authorization, any decision to extradite someone in Lui's

position to Hong Kong for trial and punishment under PRC sovereignty is

unauthorized by law and usurps Senatorial authority.

III. LUI'S CLAIMS ARE COGNIZABLE UNDER THIS COURT'S HABEAS CORPUS
     JURISDICTION AND ARE JUSTICIABLE UNDER THE NON-INQUIRY RULE AND
     TERLINDEN v. AMES.

     A.   Lui's Jurisdictional Challenge Is Of Constitutional Dimension.

     The government argues that the District court, and hence this Court,

lack habeas corpus jurisdiction to determine Lui's claims, GB at 43-46,

and also suggests that the habeas jurisdiction in extradition cases

conferred on Article III courts by 28 U.S.C. § 2241(c)(3) merely mirrors

the Magistrate Judge's jurisdiction under 18 U.S.C. § 3184, which need not

be exercised by an Article III judge. GB at 8-12.

     Article III courts have habeas corpus jurisdiction to determine

Lui's claims that he is being held in custody "in violation of the

Constitution or laws or treaties of the United States."  28 U.S.C. §

2241(c)(3).  At all times material to Lui's amended petition for a writ of

habeas corpus (A. 252), Lui was (and remains) in custody because of the

Magistrate Judge's detention order, issued concurrently with his

certification to the Secretary of State that she may extradite Lui to Hong

Kong. (A. 231).  Relying upon uncontradicted evidence that, if extradited

to Hong Kong, Lui would not be tried and, if convicted, punished by the

sovereign which requested extradition, namely the UK, Lui claims, inter

alia, that the Magistrate Judge's certification and detention order

violate: (1) the extradition laws, 18 U.S.C. § 3184 and 3186; (2) the

Treaty; and (3) his right under the Fifth Amendment's Due Process Clause

and the Constitution's treaty ratification clause, Article II, § 2, not to

be extradited to face trial and potential punishment in the judicial and

penal system of any foreign sovereign which does not have in force a

Senate-ratified extradition treaty with the United States.  Hence, Lui's

claims literally fit within the plain meaning of the Congressional grant

of habeas corpus jurisdiction in 28 U.S.C. § 2241(c)(3), and nothing in

the government's brief shows that they are not covered by the statute's

categories of cognizable claims.13

     In addition to the support for the district court's jurisdictional

ruling found in the text of the habeas corpus statute, the district court

correctly determined that Lui's claims are within the scope of habeas

corpus jurisdiction in extradition cases, recognized in Fernandez v.

Phillips, 268 U.S. 311, 312 (1925) and quoted in Koskotas v. Roche, 931

F.2d 169, 171 (1971), in that they require the court "to determine whether

the magistrate had jurisdiction...."  A. 198.  A determination of whether

the Magistrate Judge had jurisdiction includes a determination of whether,

under the circumstances presented, he had power to grant the request of

the United Kingdom to certify Lui for surrender by the Secretary of State

to Hong Kong.  Resolution of the jurisdictional question referred to in

Fernandez and Koskotas involves determining whether the Magistrate Judge

has the power to grant the relief requested by the party seeking relief. 

Taking this correct view of what is included in determining "whether the

magistrate has jurisdiction," the district court stated:

     This court has the responsibility of determining whether the Treaty,
     together with 18 U.S.C. § 3184, grants the Magistrate Judge the
     authority to permit extradition.  If the Magistrate Judge lacks the
     authority to do so, he lacks jurisdiction.

Id. at 28.  The district court correctly ruled that it has habeas corpus

jurisdiction, since Lui's petition asserted that the Magistrate Judge

lacked authority to order him detained and certified as extraditable to

Hong Kong in the face of the conclusively established that, if

surrendered, he would face trial and punishment in non-UK courts and

prisons, in violation of the Treaty, the extradition statutes, and the

Constitution.

     Cases cited by the district court likewise support its

jurisdictional ruling.  A. 199, (citing cases where the courts asserted

jurisdiction and decided the cases, including Oen Yin-Choy v. Robinson,

858 F.2d 1400 (9th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); Cheng

Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), aff'd, 932 F.2d 977

(11th Cir. 1991); and Matter of Extradition of Tang Yee-Chun, 674 F. Supp.

1058 (S.D.N.Y. 1987)).  Though it certainly constitutes an attack upon the

jurisdiction of the extradition Magistrate Judge, Lui's constitutional

claim under the Fifth Amendment's Due Process Clause and the Treaty

Ratification Clause comes within the habeas corpus jurisdiction even if

viewed as a claim that does not challenge the Magistrate Judge's

jurisdiction.

     This Court has "recognize[d] that serious due process concerns may

merit review beyond the narrow scope of inquiry in extradition

proceedings."  Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991),

quoting In re Extradition of Manzi, 888 F.2d 204, 206 (1st Cir. 1989),

cert.denied, U.S. (1990).  Other courts have recognized that, in view of

the body of decisions which have expanded the protections afforded by the

Due Process Clause since the 1925 decision in Fernandez v. Phillips,supra,

habeas corpus jurisdiction in extradition cases has correspondingly

expanded to include power to consider "not only jurisdictional defects

which are of constitutional dimension," of which Lui's claim is one, but

due process claims which are not attacks on the jurisdiction of the

extradition judge.  See Matter of Burt, 737 F.2d 1477, 1482-85 (7th Cir.

1984); Plaster v. United States, 720 F.2d 340, 347-49 (4th Cir. 1983). 

Thus, Lui's claims challenge the jurisdiction of the Magistrate Judge to

certify and detain him, but even if this were not so, the habeas corpus

jurisdiction created by 28 U.S.C. §§ 2241(c)(3) and the Constitution's

Habeas Corpus Clause provide more than adequate support for the district

court's ruling that it had jurisdiction to reach the merits of Lui's

claims.14

     B.   Adjudication of Lui's Claims Does Not Involve Determinations
         Prohibited By the Non-Inquiry Rule.

     The government's argument (GB 21-27) that Lui's claims require the

habeas corpus court to decide non-justiciable questions should be

rejected.  The district court made it clear that it was neither passing

upon nor making predictions concerning the fairness of justice in post-

reversion Hong Kong.  A. 191-192.  This Court would not be intruding into

either of these areas were it to affirm the district court's ruling,

because the non-inquiry rule functions in this case to protect the

Senate's prerogative to render Advice and Consent, in the first instance,

before the Secretary of State ever determines whether persons found in the

United States should, through surrender to Hong Kong custody, be subjected

to trial and punishment under PRC sovereignty.

     None of the non-inquiry cases cited by the government are applicable

here, because none involved an extradition request which, if granted,

would have subjected the relator to trial and potential punishment by a

sovereign other than the requesting party under the extradition treaty. 

     In In re Extradition of Howard, 996 F.2d 1320, 1330 n.6 (1st Cir.

1993), this Court stated that the rule of non-inquiry is not based on the

constitutional doctrine of separation of powers.  According to Howard,

Article III courts do not lack the authority or capacity to determine

whether a relator would receive a fair trial and humane punishment in the

requesting sovereign's judicial and penal system.15   Rather, the rule of

non-inquiry defers to the determination of both political branches,

expressed in an executed and ratified extradition treaty, that "the treaty

partner's justice system [is] sufficiently fair to justify sending accused

persons there for trial."  Id. at 1329 (emphasis and bracketed word

supplied), and expresses comity toward the judicial system of the

requesting sovereign (our nation's treaty partner) that would, pursuant to

treaty, try and potentially punish.

     The doctrine of non-inquiry, and the principles of deference and

comity it embodies, are simply inapplicable here because it is

conclusively established that Lui will neither be tried nor punished in

the judicial and penal system of our nation's treaty partner, the UK.  The

Treaty does not embody any determination by the political branches that

Lui or anyone else would be treated fairly by the PRC.  Hence, no

deference is owed to any other branch's determination concerning the

fairness of PRC justice; nor is any comity owed to the PRC, which is not

America's extradition treaty partner.  What is owed is deference and

comity to the United States Senate.

     The government argues (GB at 28-31) that the district court exceeded

the limit on habeas corpus jurisdiction set out in Terlinden v. Ames,

supra:

          We concur in the view that the question whether power remains
     in a foreign state to carry out its treaty obligations is in its
     nature political and not judicial, and that the courts ought not to
     interfere with the conclusions of the political department in that
     regard.

184 U.S. at 288 (1902), and that the district court misread Terlinden. 

The above-quoted statement concerned the reviewability in habeas corpus

jurisdiction of the State Department's judgment concerning the nature of

the change of sovereignty that had occurred when the Kingdom of Prussia

was merged within the German Empire, and the effect of that change in

sovereignty, under international law, on treaties to which the Kingdom of

Prussia was a signatory.  The Court declined to disturb the State

Department's judgment that the Kingdom of Prussia's sovereignty had not

been extinguished when it was subsumed under the sovereignty of the German

Empire, and the Court therefore declined to review the executive's

judgment that the Empire had become a party to the treaties under the

international law doctrine of state succession.

     The above-quoted statement reflects judicial deference to the

executive concerning its international law determination concerning the

nature of the change in sovereignty which had occurred in Germany as an

instance of state succession, with corresponding effects on treaties which

were extant prior to the change.  The district court correctly ruled that

the nature of the change in Hong Kong's sovereignty is not a state

succession and, in doing so, it in no way intruded upon nor overruled the

State Department's determination as to its nature and effects on treaties

under international law. Indeed, the district court's ruling is entirely

consistent with the State Department's own international law determination

concerning the nature of the change in sovereignty in Hong Kong, which was

that it is not a state succession.  Indeed, it is uniformly recognized

that a change in sovereignty is about to take place in Hong Kong.  It is

not a situation akin to those dealt with in the cases cited at GB 30,

where sovereign entities survived wars, or where former colonies attained

independence and stepped into the shoes of their former colonial masters

by agreeing to fulfill the obligations of extant treaties to which the

colonial power had been the US's treaty partner.  The situation in the

instant case appears to be unprecedented -- the peaceful transfer of a

colony from one sovereign to become part of the territory of another,

where the US has extradition relations with the former but not with the

latter.

     When asked by the Congress to classify Hong Kong's change in

sovereignty under international law and its effect on pre-reversion

treaties ("Will pre-1997 international agreements between the US and Hong

Kong continue in force after July 1, 1997?"), the State Department

replied:

     Answer: 
     Under ordinary rules of international law, when part of the
     territory of one state becomes territory of another state, the
     international agreements of the predecessor state cease to have
     effect in respect of that territory and the international agreements
     of the successor state come into force there.  Under these
     principles, unless the United States and the PRC agree to a
     different rule, all U.S. bilateral agreements that now apply to Hong
     Kong will cease to do so after reversion, and U.S.-PRC agreements
     will then begin to apply in Hong Kong.

Hong Kong's Reversion to China and Implications for U.S. Policy: Hearing

Before the Subcomm. on East Asian and Pacific Affairs of the Senate Comm.

on Foreign Relations, 102nd Cong., 2d Sess., 17 (1992) (prepared statement

of Jamison M. Selby, Deputy Legal Advisor, Department of State)(emphasis

supplied).  Add. 49.

     According to the State Department, what is about to occur in Hong

Kong is roughly comparable to the ceding of Spain's colony, Puerto Rico,

or Russia's colony, Alaska, to the United States, except that Hong Kong

will not become a colony of the PRC (as was the case initially when Puerto

Rico and Alaska became part of US territory); instead, it will become a

"Special Administrative Region" of the PRC.  The district court correctly

recognized, as the State Department has, that the Crown Colony of Hong

Kong "will experience 'cessation' of independent existence" (A. 182),

which the Terlinden Court contrasted with what had occurred in

the case of the Kingdom of Prussia becoming consolidated into the German Empire.  184

U.S. at 283.

     Thus, the district court did not misread Terlinden.  The court

correctly recognized that the limit on habeas corpus jurisdiction set out

in Terlinden occurred in the context of a state succession and hence is

inapposite.  Because Hong Kong will cease to be part of the territory of

one sovereign and will become part of the territory of another, Terlinden

does not preclude the district court from making a factual inquiry to

identify which sovereign will try and potentially punish Lui were he

certified to the Secretary of State and surrendered.  Neither does

Terlinden inhibit the power of the habeas corpus court to interpret the

Treaty to determine whether it authorizes Lui's extradition.

     In short, the district court got it exactly right.
   
                          CONCLUSION

     For all the foregoing reasons, the district court should be affirmed.

Dated: February 7, 1997

                                      Respectfully submitted,

                                      Harvey A. Silverglate
                                      BBO#462640
                                      Andrew Good
                                      BBO#201240
                                      Silverglate & Good
                                      83 Atlantic Avenue
                                      Boston, MA 02110
                                      (617) 523-5933