Ordinola v. Hackman

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

WILMER YARLEQUE ORDINOLA, 
Petitioner-Appellee,
v.
JOHN HACKMAN, Acting United  No. 06-6126
States Marshal for the Eastern
District of Virginia,
Respondent-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:05-cv-00847-GBL)

Argued: September 18, 2006

Decided: February 22, 2007

Before WILLIAMS and TRAXLER, Circuit Judges,
and Thomas E. JOHNSTON, United States District Judge for the
Southern District of West Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Johnston concurred. Judge Traxler wrote
a separate concurring opinion.

COUNSEL

ARGUED: Michael Alan Rotker, UNITED STATES DEPART-
MENT OF JUSTICE, Criminal Division, Washington, D.C., for
2 ORDINOLA v. HACKMAN
Appellant. Meghan Suzanne Skelton, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee. ON
BRIEF: Jason E. Carter, UNITED STATES DEPARTMENT OF
JUSTICE, Criminal Division, Office of International Affairs, Wash-
ington, D.C.; Paul J. McNulty, United States Attorney, Jeanine Line-
han, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellant. Michael
S. Nachmanoff, Acting Federal Public Defender, Alexandria, Vir-
ginia, for Appellee.

OPINION

WILLIAMS, Circuit Judge:

Pursuant to the bilateral Extradition Treaty between the United
States and Peru, see Extradition Treaty, U.S.-Peru, July 26, 2001, S.
Treaty Doc. No 107-6 ("Extradition Treaty"), the United States Gov-
ernment seeks to extradite Wilmer Yarleque Ordinola, a Peruvian
national, to Peru so that he can stand trial for the alleged crimes of
aggravated homicide, aggravated kidnapping, forced disappearance of
persons, inflicting major intentional injuries, and delinquent associa-
tion. Before a magistrate judge, Ordinola claimed, inter alia, that he
was not extraditable because his alleged crimes fit within the Treaty’s
exception for political offenses. The magistrate judge, acting as the
finder of fact, disagreed, finding that Ordinola’s offenses could not be
defined as political for purposes of the Treaty. Ordinola filed a peti-
tion for a writ of habeas corpus, and the district court granted the writ,
determining that the political offense exception barred extradition in
this case. The Government appealed. For the reasons identified below,
we conclude that the magistrate judge did not err in finding Ordinola
extraditable. We therefore vacate the district court’s grant of the writ
and remand for reentry of a Certification of Extraditability.

I.

A.

In the late 1960s, Abimael Guzman, a Peruvian philosophy profes-
sor and leader of a faction of Peru’s Communist Party, founded the
 ORDINOLA v. HACKMAN 3
radical left-wing guerrilla movement known as Sendero Luminoso, or
"the Shining Path." The Shining Path has since been described as a
"highly organized guerrilla organization with a Maoist communist
ideology dedicated to the violent overthrow of Peru’s democratic gov-
ernment and social structure." Sotelo-Aquije v. Slattery, 17 F.3d 33,
35 (2d Cir. 1994). By the mid-1980s, the Shining Path had grown
from a relatively small regional movement into a much larger and
more dispersed one that engaged in numerous acts of violence against
Peruvian government officials, peasants, journalists, professors,
teachers, and others. At its height, the Shining Path was characterized
as "[s]ophisticated, well-organized," and "probably the most brutal,
vindictive, and elusive terrorist insurgency in the Western Hemi-
sphere." (J.A. at 138 (The Threat of the Shining Path to Democracy
in Peru: Hearing Before the Subcomm. on Western Hemisphere
Affairs of the H. Comm. on Foreign Affairs, 102d Cong. 47 (1992)
(statement of Gabriela Taranzona-Sevillano, Visiting Prof. of Int’l
Studies, Davidson Coll.)).)

In 1990, newly elected Peruvian president Alberto Fujimori
enlisted Vladimiro Lenin Montesinos, former Advisor to the Peruvian
National Intelligence Service, as a military advisor. Together, Fuji-
mori and Montesinos provided the military with vast power and
resources to fight the Shining Path,1 responding to the group’s insur-
gency with tactics that nearly matched the Shining Path’s in brutality.
The result was Fujimori’s creation of a military establishment that
was described as "institutionally corrupt," clouded by "the worst
human rights record in the hemisphere," and characterized by "a per-
sistent record of indiscriminate action against rural populations" stem-
ming from a "belief that popular terror, in and of itself, is a recipe for
success [against the Shining Path]." (J.A. at 110, 112 (The Threat of
the Shining Path to Democracy in Peru: Hearing Before the Sub-
comm. on Western Hemisphere Affairs of the H. Comm. on Foreign
Affairs, 102d Cong. 19, 21 (1992) (statement of Gordon H. McCor-
mick, senior social scientist, RAND Corp.)).)
1
In September 1992, Peruvian officials captured Abimael Guzman,
who was still acting as the Shining Path’s leader. The Peruvian courts
convicted Guzman and sentenced him to life imprisonment.
4 ORDINOLA v. HACKMAN
During 1991, in connection with this strategy, Fujimori created a
special operations paramilitary squad known as the Grupo Colina, or
"Colina Group," and commissioned the group to combat the Shining
Path.2 Ordinola, a veteran of the Peruvian army with experience in
military intelligence, was assigned to the group and later became
"group chief," meaning that he was coordinator for one of the Colina
Group’s three subgroups.

B.

Peru’s extradition request alleges that Ordinola, while serving in
the Colina Group, kidnapped and murdered noncombatant civilians
on four separate occasions in 1991 and 1992. The allegations related
to these four incidents are recounted below.

2
Toward the end of 2000, Fujimori’s government collapsed amidst a
significant political corruption scandal. The Peruvian Congress declared
Fujimori morally unfit for service; subsequently, Fujimori went into exile
in Japan and tendered his resignation. Upon taking office, Alejandro
Toledo, Fujimori’s successor, directed his administration to investigate
the Colina Group’s actions in the early 1990s.
In 2005, Fujimori traveled from Japan to Chile to launch his political
comeback. He was arrested shortly thereafter at the behest of the Peru-
vian government, and is currently awaiting Peru’s request for extradition.
See Tyler Bridges, Massacres could doom Fujimori’s legal case; The
death-squad killings in Barrios Altos and La Cantuta are the most seri-
ous charges facing former President Alberto Fujimori back in Peru, The
Miami Herald, Nov. 9, 2005, at A1. Some of the charges against Fuji-
mori are for his role in "using a death squad to kill 25 people in two inci-
dents known as La Cantuta and Barrios Altos." Peru seeks Fujimori
extradition, BBC News, Mar. 1, 2006. Ordinola has likewise been
charged for his involvement in the Barrios Altos and La Cantuta massa-
cres. In addition, Montesinos has been sentenced to 20 years’ imprison-
ment for brokering a deal to send 10,000 assault rifles to Colombian
guerrillas and 15 years’ imprisonment for corruption charges. Simon
Romero, World Briefing Americas: Peru: New Conviction For Ex-Spy
Chief, N.Y. Times, Sept. 23, 2006, at A5. He has also been charged with
various crimes for his connection with the Colina Group.
 ORDINOLA v. HACKMAN 5
1. The Barrios Altos Case.

On the evening of November 3, 1991, two trucks containing Colina
Group agents, including Ordinola, traveled to the Barrios Altos neigh-
borhood in Lima, Peru, where a pollada — a social function typically
held for fund-raising purposes — was taking place in the yard of an
apartment complex. Dressed in ski masks and carrying machine guns
with silencers, Ordinola and around ten other agents left the trucks,
entered the apartment complex yard, and began shooting at the people
attending the pollada. The agents killed fifteen people, including an
eight-year-old boy, and seriously injured four others.3

Julio Chiqui Aguirre, a Colina Group agent who participated in the
attack, identified Ordinola as an active participant in the shootings
and as the killer of the eight-year-old boy. In connection with the
massacre, Peru has charged Ordinola with Aggravated Homicide,
Inflicting Major Intentional Injuries, and Delinquent Association, in
violation of Articles 108, 121, and 317 of the Peruvian Criminal
Code.

2. La Cantuta Case.

On July 17, 1992, Ordinola and other Colina Group agents traveled
to La Cantuta University. The agents, who were armed, wearing ski
masks, and carrying shovels and lime,4 entered the student dormito-
3
In 2001, The Inter-American Court of Human Rights found that Peru,
which had accepted international responsibility for the massacre, had
violated "the right to life embodied in Article 4 of the American Conven-
tion on Human Rights" with respect to the fifteen dead and "the right to
humane treatment embodied in Article 5 of the American Convention on
Human Rights" with respect to the four injured. Barrios Altos Case,
Inter-Am Ct. H.R. (Ser. C) No. 75 (2001), available at
http://www1.umn.edu/humanrts/iachr/C/75-ing.html.
4
Lime, or calcium oxide (CaO), is commonly used in the burial of
bodies in open graves because the compound suppresses the odor of
decomposing bodies. See Wikipedia, Calcium oxide, http://
en.wikipedia.org/wiki/Calcium_oxide (last visited Nov. 29, 2006); see
also Rice v. Paladin Enters., 128 F.3d 233, 238 (4th Cir. 1997) (noting
that lime can be used when burying bodies "to prevent the horrible odor
of decomposition").
6 ORDINOLA v. HACKMAN
ries and forced approximately fifteen students outside. One of the
agents singled out nine of the fifteen students because they allegedly
had terrorist connections. The agents also forced a university profes-
sor out of his home because of an alleged link to terrorism.

Ordinola and the other Colina Group agents loaded the professor
and nine students into several trucks and drove them to a location on
the Ramiro Priale Highway. There, the agents made them dig
trenches, forced them into the holes, shot and killed them, and buried
them. One or two days later, several agents, including Ordinola,
exhumed the bodies, moved them to another location, and incinerated
them because they were concerned that the bodies might be discovered.5
For this incident, Peru has charged Ordinola with Aggravated Homi-
cide, Aggravated Kidnapping, and Forced Disappearance of Persons,
in violation of Articles, 108, 152, and 320 of the Peruvian Criminal
Code.

3. The Barrientos Case.

On May 1, 1992, Peruvian Army General Juan Rivero Lazo sum-
moned leaders of the Colina Group to a meeting with Jorge Fung
Pineda, a private property owner who had friends in the Peruvian mil-
itary. Pineda told the agents that some of his workers at his cotton
mill were demanding higher wages and improved machinery. Pineda
asked the agents to link the workers to terrorism and to "teach them
a good lesson." (J.A. at 23.)

Later that day, Ordinola and other Colina Group agents, while
dressed as civilians, armed themselves and kidnapped nine of the
workers, taking one person from the road while he was riding a bicy-
cle and the other eight from their homes. Ordinola and the other
agents killed all nine people and buried them at a nearby farm. Before
5
Eight Colina Group officers were convicted in 1994 for the La Can-
tuta killings. In 1995, however, following Fujimori’s landslide reelection
victory, Peru’s congress enacted a law granting amnesty to all military
personnel accused of human-rights violations between 1980 and 1995,
including the Colina Group members convicted for their role at La Can-
tuta. See Lawrence J. Speer, Amnesty for military drives wedge into
Peru, The Washington Times, July 2, 1995, at A7.
 ORDINOLA v. HACKMAN 7
they left, the agents painted "written marks and phrases regarding the
‘Shining Path’ with red paint" around the scene to make it appear that
the crimes were perpetrated by the Shining Path. (J.A. at 9, 24.) For
this incident, Peru has charged Ordinola with Aggravated Homicide
and Aggravated Kidnapping, in violation of Articles 108 and 152 of
the Peruvian Criminal Code.

4. The Bustamante Case.

In June 1992, Pedro Yauri Bustamante was living in Huacho, Peru,
and working as director of the daily news program called, "Punto
Final," which aired on a local radio station. On the show, Bustamante
and his call-in listeners frequently criticized the Fujimori government.
The Fujimori administration had classified Bustamante as a subver-
sive activist because he had previously been investigated for terrorist
activities.

On June 22, 1992, Major Santiago Martin Rivas called members of
the Colina Group, including Ordinola, to a meeting and told them that
the next day they would carry out an operation in Huacho. On June
23, the agents, armed and carrying shovels, lime, and ski masks, left
the grounds of the former Peruvian Intelligence Service and traveled
in two vehicles to an area near the beach. Major Rivas directed one
group of agents to stay at the beach and dig a grave in the sand and
directed the other group to kidnap Bustamante and bring him back to
the beach.

Around 2:00 a.m. on June 24, 1992, the assigned group broke into
Bustamante’s house, tied up him and his father, confiscated several
documents, and forced Bustamante into the agents’ vehicle. The
agents drove him to the beach, where Major Rivas interrogated Busta-
mante. Bustamante refused to answer Rivas’s questions because he
knew they were going to kill him anyway. The group forced Busta-
mante to dig the rest of his grave, and Agent Luis Ortiz Mantas fatally
shot Bustamante in the head. The agents then buried Bustamante.
Agent Aguirre identified Ordinola as a participant in Bustamante’s
abduction and murder. For this incident, Peru has charged Ordinola
with Aggravated Homicide and Aggravated Kidnapping, in violation
of Articles 108 and 152 of the Peruvian Criminal Code.
8 ORDINOLA v. HACKMAN
C.

Ordinola entered the United States on February 20, 2001, and filed
a petition for political asylum on June 22, 2001. On November 12,
2003, pursuant to the bilateral Extradition Treaty with the Republic
of Peru, the United States Department of State received four Diplo-
matic Notes from the Peruvian Embassy requesting that United States
authorities obtain provisional arrest warrants in connection with the
extradition of Ordinola.6

On September 24, 2004, a United States magistrate judge issued a
provisional arrest warrant for Ordinola pending his extradition. On
June 10, 2005, the magistrate judge, having previously held an extra-
dition hearing pursuant to 18 U.S.C.A. § 3184 (West 2000) and the
terms of the Treaty, found that probable cause existed to believe that
Ordinola had committed the alleged crimes. Turning to the question
of whether Ordinola’s crimes were extraditable under the Treaty, the
magistrate judge first found that the charged crimes satisfied the dual
criminality requirement.7 The magistrate judge next concluded that
Ordinola’s alleged crimes did not fit within the political offense
exception to extradition. The magistrate judge ruled that although
Ordinola’s alleged crimes occurred during a severe political uprising,
the crimes were not sufficiently incidental to the uprising and thus did
not fall within the exception. He reasoned that any political intentions
Ordinola had in committing the alleged crimes were not enough to
render the acts political offenses in light of the fact that Ordinola
6
Coincidentally, on November 26, 2003, the U.S. Department of
Homeland Security, Immigration, and Customs Enforcement arrested
Ordinola in Northern Virginia for immigration fraud under 18 U.S.C.A.
§ 1546 (West 2000). Ordinola subsequently pleaded guilty to those
charges and was sentenced to time served.
7
The dual criminality requirement ensures that the charged conduct is
considered criminal and punishable as a felony in both the country
requesting the suspect and the country surrendering the suspect. See
Extradition Treaty, U.S.-Peru, July 26, 2001, S. Treaty Doc. No 107-6,
art. II, sec. 1 ("Extradition Treaty") ("An offense shall be an extraditable
offense if it is punishable under the laws in both Contracting States by
deprivation of liberty for a maximum period of more than one year or by
a more severe penalty.").
 ORDINOLA v. HACKMAN 9
committed the crimes against noncombatant civilians and engaged in
acts that violated the laws of armed conflict and international stan-
dards of civilized conduct. Accordingly, the magistrate judge certified
Ordinola’s extradition to the Secretary of State.

On July 20, 2005, Ordinola filed a petition for a writ of habeas cor-
pus in the Eastern District of Virginia, alleging that he was being held
in violation of the Extradition Treaty. On November 21, 2005, the dis-
trict court granted the writ, concluding that the magistrate judge had
properly found probable cause to believe that Ordinola committed the
charged crimes but had wrongly concluded that Ordinola’s offenses
did not fit within the political offense exception. The court concluded
that Ordinola’s crimes were sufficiently incidental to the political
uprising because the Peruvian government led Ordinola to believe
that the victims of Ordinola’s crimes were terrorists. As such, the
court reasoned that Ordinola did not knowingly kill innocent civilians.

The Government timely appealed. We have jurisdiction under 28
U.S.C.A. § 1291 (West 2006).

II.

The political offense exception to extradition forbids countries
from extraditing people who are accused of offenses that are "politi-
cal" in nature. Like the vast majority of modern-day extradition trea-
ties, the extradition Treaty between the United States and Peru
provides a political offense exception:

Extradition shall not be granted if the offense for which
extradition is requested constitutes a political offense.

Extradition Treaty, art. IV, sec. 2. Unfortunately, however, these trea-
ties do not define "political offense." Accordingly, we are forced to
rely on judicial constructions, history, purpose, and State Department
interpretations to determine the phrase’s meaning. See United States
v. Al-Hamdi, 356 F.3d 564, 570 (4th Cir. 2004) ("When the text [of
the treaty] is ambiguous or unclear, we turn to nontextual sources for
guidance."). Although the exception has been ingrained in our coun-
try’s extradition treaties for well over a century, this Circuit has never
10 ORDINOLA v. HACKMAN
expressly addressed the exception. We do so now, beginning with an
explanation of the exception’s history and purpose.

Extradition requests are of ancient origin.8 Extradition was the pro-
cess by which states requested the surrender of "pure" political
offenders, i.e., those accused of treason and contemptuous behavior
toward the monarch. M. Cherif Bassiouni, International Extradition:
United States Law and Practice 594 (4th ed. 2002). The first known
extradition treaty — representing "one of the oldest documents in dip-
lomatic history" — was entered into by the Egyptians and Hittites
circa 1280 B.C. Id. at 32. The political offense exception to extradi-
tion, however, is a far more recent development, tracing its begin-
nings to the Enlightenment ideals encapsulated in the French and
American revolutions.

These ideals supported a belief that people possessed an inalienable
right to resist and abolish tyrannical governments. See, e.g., The Dec-
laration of Independence para. 1 (U.S. 1776) ("We hold these truths
to be self-evident . . . . That whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter
or to abolish it . . . ."). It was with these ideals in mind that Thomas
Jefferson, as Secretary of State in 1792, recommended against enter-
ing into an extradition treaty with Spain:

[M]ost Codes extend their definitions of treason to acts not
really against one’s country. They do not distinguish
between acts against the government and acts against the
Oppressions of the government. The latter are virtues: yet
have furnished more victims to the Executioner than the for-
mer. Because real treasons are rare: Oppressions frequent.
The unsuccessful Struggles against Tyranny have been the
chief Martyrs of Treason laws in all countries. . . . [W]e
should not wish then to give up to the Executioner the
Patriot who fails, and flees to us.
8
The Old Testament, for example, recounts the story of a Levite concu-
bine who was raped by a band of Benjamites until she died. The other
tribes of Israel demanded extradition of the guilty men. The Benjamites
refused, leading to a war in which the Benjamites were largely destroyed.
See Judges 20.
 ORDINOLA v. HACKMAN 11
Letter from Thomas Jefferson to William Carmichael and William
Short (Apr. 24, 1792), in 6 The Works of Thomas Jefferson (Corre-
spondence 1789-1792), at 447-48 (Paul Leicester Ford ed., 1904)
(emphasis in original).

The theory underpinning the political offense exception, then, is as
old as our country.9 The exception was deemed necessary to protect
those people who justly fought back against their government oppres-
sors to secure political change. In 1843, a decade after nations such
as Belgium, France, and Switzerland included the political offense
exception in their extradition treaties, the United States followed suit.
Bassiouni, supra, at 599-600.

Traditionally, there have been two categories of political offenses:
"pure" and "relative." The core "pure" political offenses are treason,
sedition, and espionage. Vo v. Benov, 447 F.3d 1235, 1241 (9th Cir.
2006). "Pure" political offenses do not have any of the elements of a
common crime because "[s]uch laws exist solely because the very
political entity, the state, has criminalized such conduct for its self-
preservation." Bassiouni, supra, at 604. Such crimes are perpetrated
directly against the state and do not intend to cause private injury.
Most extradition treaties preclude extradition for "pure" political
offenses. "Relative" political offenses, on the other hand, are common
crimes that are so intertwined with a political act that the offense itself
becomes a political one. Id. at 607-08. As evidenced by this discus-
9
Arguments sounding in the exception were made in the famous extra-
dition case of Jonathan Robbins at the turn of the Nineteenth Century.
The British requested Robbins’s extradition for his role in a mutiny
aboard a British ship. Although Robbins claimed he was an American
impressed into service by the British and was seeking to restore his lib-
erty, President Adams came to the unpopular conclusion that Robbins
should be extradited. See United States v. Robbins, 27 F. Cas. 825
(D.S.C. 1799) ("[Robbins] was warranted by the most sacred rights of
nature, and the laws of nations, to have recourse to violence in the recov-
ery of that liberty, of which he had been unjustly deprived."); see also
Ex Parte Kaine, 14 F. Cas. 78, 81 (S.D.N.Y. 1853) ("It was the appre-
hension of the people of this country, at the time, that the offence of Jon-
athan Robbins . . . was a political offense. . . . Assuming such
apprehension to have been well founded, the intense public indignation
that followed was creditable to the nation.").
12 ORDINOLA v. HACKMAN
sion, while "pure" political offenses are easy to identify, determining
whether a common offense is "relatively" political requires close
attention to the specific facts at issue.

Most American courts addressing "relative" political offenses have
developed a two-prong test to determine whether an offense is suffi-
ciently political to fall within the exception. Known as "the incidence
test," it asks whether (1) there was a violent political disturbance or
uprising in the requesting country at the time of the alleged offense,
and if so, (2) whether the alleged offense was incidental to or in the
furtherance of the uprising. See, e.g., Vo, 447 F.3d at 1241. We, too,
adopt the incidence test as our lodestar.

III.

Pursuant to 18 U.S.C.A. § 3184, a magistrate judge has jurisdiction
to review the evidence to determine whether an extradition request
can be sustained under a treaty.10 If the magistrate determines that the
10
18 U.S.C.A. § 3184 (West 2000) provides:
Whenever there is a treaty or convention for extradition between
the United States and any foreign government, . . . any justice or
judge of the United States, or any magistrate judge authorized so
to do by a court of the United States, or any judge of a court of
record of general jurisdiction of any State, may, upon complaint
made under oath, charging any person found within his jurisdic-
tion, with having committed within the jurisdiction of any such
foreign government any of the crimes provided for by such treaty
or convention, . . . issue his warrant for the apprehension of the
person so charged, that he may be brought before such justice,
judge, or magistrate, to the end that the evidence of criminality
may be heard and considered. . . . If, on such hearing, he deems
the evidence sufficient to sustain the charge under the provisions
of the proper treaty or convention, . . . he shall certify the same,
together with a copy of all the testimony taken before him, to the
Secretary of State, that a warrant may issue upon the requisition
of the proper authorities of such foreign government, for the sur-
render of such person, according to the stipulations of the treaty
or convention; and he shall issue his warrant for the commitment
of the person so charged to the proper jail, there to remain until
such surrender shall be made.
 ORDINOLA v. HACKMAN 13
suspect is extraditable, it must then certify the question to the Secre-
tary of State, who is entrusted with the ultimate executive power of
determining extradition. 18 U.S.C.A. § 3186 (West 2000). Thus,
before extradition can take place, an applicable treaty must exist, and
the suspect must be able to challenge application of the treaty by both
judicial and executive review.

In Ornelas v. Ruiz, 161 U.S. 502 (1896), the Supreme Court
explained that the political offense extradition question presents "a
question of mixed law and fact, but chiefly of fact." Id. at 509. The
Court, however, afforded broad deference to the magistrate’s finding
of extraditability, explaining that it was reviewing to determine only
whether the magistrate "had no choice, on the evidence, but to hold
. . . that this was a movement in aid of a political revolt . . . and that
acts which contained all the characteristics of crimes under the ordi-
nary law were exempt from extradition because of the political inten-
tion of those who committed them." Id. at 511 (emphasis added).

This "no choice" language brings to mind the substantial evidence
or clear error standard employed by courts today. For example, in
deciding under the substantial evidence standard whether to reverse
the immigration agency’s decision to deny asylum,11 we will uphold
the decision unless the petitioner can show that the evidence he pre-
sented would have "compelled" a reasonable factfinder to conclude
otherwise. See, e.g., I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992). Ornelas’s standard of review also meshes nicely with the lan-
guage of § 3184, which instructs the factfinder to sustain the charge
under the provisions of the treaty if "he deems the evidence suffi-
cient." 18 U.S.C.A. § 3184.

Thus, we are left with a standard of review that recognizes the
political offense question as a mixed question of law and fact, but
11
Although opposites, asylum, which involves the request of an indi-
vidual, and extradition, which involves the request of a state, historically
have been linked. See generally M. Cherif Bassiouni, International
Extradition: United States Law and Practice 153-82 (4th ed. 2002). That
said, "extradition and asylum proceedings are not related, and the legisla-
tive authority on which extradition relies is different from that of asy-
lum." Id. at 174.
14 ORDINOLA v. HACKMAN
mostly of fact. Ornelas, 161 U.S. at 509. On habeas review, we must
grant a magistrate’s factual findings great deference and affirm the
decision unless it is "palpably erroneous in law" and a reasonable
factfinder would have had "no choice" but to conclude that the
offender was acting in furtherance of a political uprising. Id. at 509,
511.

IV.

The Government argues that the district court failed to afford the
magistrate judge’s opinion proper deference and that it misapplied the
political offense exception because Ordinola’s offenses were not inci-
dent to the political uprising in Peru.12 It contends that if allowed to
stand, the opinion would extend the narrow doctrine "to virtually
every misdeed, no matter how heinous, committed by a person pur-
porting to act under a political cloak." (Appellant’s Br. at 29.)
Ordinola, on the other hand, argues that the district court did not err
and that there exists a close nexus between Ordinola’s alleged actions
and his political objective. We agree in principle with the Govern-
ment.

A.

There is no direct appeal for an individual found to be extraditable
by a magistrate. See Collins v. Miller, 252 U.S. 364, 369 (1920).
12
There also exists a colorable argument that the exception applies only
to those fighting government oppression, and therefore not to govern-
ment actors. See In the Matter of the Requested Extradition of Suarez-
Mason, 694 F. Supp. 676, 705 (N.D. Cal. 1988) (concluding that "the
principles underlying the political offense exception are ill-served by
extending its protection to former government officials"). The Govern-
ment expressly declined to make this argument, and we will not do so
sua sponte in the absence of full argument by the parties. We note, how-
ever, that although such a limitation finds strong support in the history
and original purpose of the rule, no such limitation can be inferred from
the plain language of the Treaty. We further note that in this age of guer-
rilla warfare, where different factions often control individual pockets of
a country in the midst of a civil war, it might be beyond the judiciary’s
competency to determine whether the nominal government party is in
fact the ruling party in any particular situs.
 ORDINOLA v. HACKMAN 15
Rather, a writ of habeas corpus is the only available means to chal-
lenge the magistrate’s finding. A judge conducting habeas review of
an extradition case is subject to substantial limitations and is not free
"to rehear what the magistrate has already decided." Fernandez v.
Phillips, 268 U.S. 311, 312 (1925). The magistrate’s decision there-
fore "cannot be reviewed on the weight of the evidence." Ornelas,
161 U.S. at 509. "[H]abeas corpus is available only to inquire whether
the magistrate had jurisdiction, whether the offense charged is within
the treaty and, by a somewhat liberal extension, whether there was
any evidence warranting the finding that there was reasonable ground
to believe the accused guilty" of the asserted crimes. Fernandez, 268
U.S. at 312. Under habeas review, "the political offense question is
reviewable . . . as part of the question of whether the offense charged
is within the treaty." Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.
1986).

As an initial matter, then, the district court plainly erred in review-
ing de novo the entirety of the magistrate judge’s decision and afford-
ing his factual findings no deference. For one of many examples, the
district court’s finding that "Ordinola did not knowingly murder inno-
cent civilians," (J.A. at 528), is contradicted by the magistrate judge’s
opposite finding that Ordinola’s victims "were clearly civilians." (J.A.
at 31.) As another example, the magistrate judge found that the young
boy allegedly murdered by Ordinola "as he was running to help his
dying father was almost certainly not a terrorist." (J.A. at 31.) The
district court, however, rejected this finding as "irrelevant" because of
its independent factual finding that "several of the Shining Path mem-
bers themselves barely reached adolescence before participating in the
insurgency’s violent and brutal tactics." (J.A. at 527.)

Such rejection of the magistrate judge’s factfinding was improper
because the district court was not free to "to rehear what the magis-
trate has already decided." Fernandez, 268 U.S. at 312. Rather, as a
habeas court, the district court was constrained by the same standard
of review that is articulated in the discussion above for this Court.
Because the magistrate judge was the factfinder and its decision was
not subject to direct appeal, the district court erred by not paying sub-
stantial deference to the magistrate judge’s factual findings. See, e.g.,
Quinn, 283 F.2d at 792 (explaining that "[i]t would make little sense
for us to ignore the factual findings of the judicial tribunal that made
16 ORDINOLA v. HACKMAN
the initial factual determinations and defer, instead, to the differing
factual findings made by a [later] tribunal that merely reviewed the
record of the earlier proceedings"); Eain v. Wilkes, 641 F.2d 504, 508
(7th Cir. 1981) ("The scope of habeas corpus review in extradition
cases is a limited one, according due deference to the magistrate’s ini-
tial determination."). Thus, although the district court was free to
make its own legal conclusions so long as they were supported by the
magistrate judge’s factual findings, it was not free to ignore or misin-
terpret those findings in an effort to reach a desired legal conclusion.

B.

To fall within the political offense exception, Ordinola’s alleged
actions must have been incidental to or in furtherance of a violent
political uprising in Peru. Although Ordinola’s actions occurred in the
course of a violent political uprising, he cannot show that the magis-
trate judge erred in finding that those actions were not in furtherance
of quelling the uprising.

As an initial matter, we — like the magistrate judge and district
court — have little trouble in agreeing that the alleged actions here
occurred during the course of a violent political uprising. The Peru-
vian government and the Shining Path were engaged in a violent
struggle for control of the country. According to one expert’s opinion
of the situation in 1992, "[a]pproximately 50 percent of Peruvian ter-
ritory and approximately 65 percent of the country’s population [was]
under a state of national emergency." (J.A. at 108 (The Threat of the
Shining Path to Democracy in Peru: Hearing Before the Subcomm.
on Western Hemisphere Affairs of the H. Comm. on Foreign Affairs,
102d Cong. 17 (1992) (statement of Gordon H. McCormick, senior
social scientist, RAND Corp.)).) Clearly, then, it is appropriate to
describe the situation in Peru at the time of Ordinola’s alleged actions
as "a political revolt, an insurrection, or a civil war." Ornelas, 161
U.S. at 511.

The more difficult question is whether Ordinola’s alleged offenses
were incident to the political uprising. First, we recognize that it
makes little sense to ask whether his actions were in furtherance of
or "in aid" of the uprising. See id. Ordinola, acting on behalf of the
Peruvian government, was attempting to defeat, not aid, the uprising.
 ORDINOLA v. HACKMAN 17
Accordingly, we must slightly alter the question and instead ask
whether Ordinola’s actions were incident to or in furtherance of quell-
ing the violent uprising.

The parties disagree over the extent to which this test is subjective
or objective. The district court, for example, focused in part on its
independent factual finding that Ordinola had no "knowledge regard-
ing the innocence of the civilians" at the time of the attacks and thus
intended to quell the uprising via his actions. (J.A. at 526-27.) The
Government contends that it is a mistake to focus on the intentions,
or motives, of the accused. Instead, the Government argues, courts
must concentrate on the act itself, as the Treaty exempts political
offenses, not politically motivated offenders.

We conclude that courts must look at the question both subjectively
and objectively, although the objective view must usually carry more
weight. Courts have long recognized the relevancy of subjective
motives in the political offense context. See, e.g., In re Castioni
[1891] 1 Q.B. 149, 158 (1890) (Opinion of Denman, J.) ("It must at
least be shown that the act is done in furtherance of, done with the
intention of assistance, as a sort of overt act in the course of acting
in a political matter, a political uprising, or a dispute between two par-
ties in the State as to which is to have the government in its hands."
(emphasis added)); Ornelas, 161 U.S. at 511 (inquiring whether the
acts "were perpetrated with bona fide political or revolutionary
designs"). We read these cases to mean that for a claimant to come
within the protections of the political offense exception, it is neces-
sary, but not sufficient, for the claimant to show that he was politi-
cally motivated. In other words, a claimant whose common crime was
not subjectively politically motivated cannot come within the excep-
tion regardless of whether the offense itself could be described as an
objectively "political" one.13
13
By way of example, consider a hostage situation where the hostage
takers demand the release from prison of their revolutionary leader as the
condition for the release of the hostages. But this demand is in fact a ruse
to distract the government and its hostage negotiators. The true interest
of the hostage takers is in buying time so that they can break into a large
vault containing valuables housed in the same building as the hostages.
Thus, although the offense could be viewed as objectively political, the
offenders have only a monetary motive and therefore could not take
advantage of the political offense exception. For a cinematic variation of
this example, see Die Hard (20th Century Fox 1988).
18 ORDINOLA v. HACKMAN
Aside from the subjective component, a claimant must also show
that the offense was objectively political. See, e.g., Bassiouni, supra,
at 602 (explaining that a test that focuses solely on motives "fails to
appreciate the distinction between the nature of the offense and the
motives of the actor"). This is because the Treaty itself exempts polit-
ical offenses, and a political motivation does not turn every illegal
action into a political offense. The Treaty, then, cannot be read to pro-
tect every act — no matter how unjustifiable and no matter the victim
— simply because the suspect can proffer a political rationale for the
action. See, e.g., Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990)
("Political motivation does not convert every crime into a political
offense."); Escobedo v. United States, 623 F.2d 1098, 1104 (5th Cir.
1980) ("An offense is not of a political character simply because it
was politically motivated.").

Here, we assume without deciding that Ordinola’s actions were
politically motivated. The magistrate judge did not explicitly address
the question; instead, he focused on the objective side of the inquiry.
The district court, on the other hand, appeared to base its grant of the
writ on its independent conclusion that Ordinola was politically moti-
vated. We see no reason to delve into this inquiry because, as
explained below, we conclude that Ordinola is charged with offenses
that are not political under the Treaty.

To determine whether a particular offense is political under the
Treaty, we must look to the totality of the circumstances, focusing on
such particulars as the mode of the attack and the identity of the vic-
tims, for example. In Ornelas, the Supreme Court examined Mexico’s
extradition request for a member of a band of armed men who
attacked and killed a group of Mexican soldiers and civilians. Ornelas
claimed that he was part of a border revolutionary movement and that
his actions were in furtherance of that movement. Ornelas, 161 U.S.
at 510-11. In a similar procedural posture to this case, the magistrate
determined that the acts were not of a political character, but the dis-
trict court disagreed on habeas review. In reviewing the Govern-
ment’s appeal, the Supreme Court queried whether the magistrate had
"no choice, on the evidence, but to hold, in view of the character of
the foray, the mode of attack, the persons killed or captured, and the
kind of property taken or destroyed," that Ornelas’s offenses were
political. Id. at 511. In answering that question in the negative, the
 ORDINOLA v. HACKMAN 19
Supreme Court found it relevant that, inter alia, "private citizens"
were the victims of some of the assaults, private property was taken,
and Ornelas was part of a bandit group, acting without "uniforms or
flag." Id. at 510.

In examining the Colina Group’s modes of attack, the magistrate
judge noted that Ordinola was being charged for his role in killing fif-
teen people when the Colina Group "opened fire on [a] crowd of men,
women, and children." (J.A. at 19.) He also noted that Ordinola and
other Colina Group agents made a group of students "dig trenches,
forced them into the holes, killed them with gunfire, and buried
them." (J.A. at 20-21.) Likewise, masked agents kidnapped a director
of a news program, forced him to dig his grave, and killed him by
shooting him in his head. Finally, the magistrate judge found that the
agents acted on behalf of a friend of the military — who was per-
turbed by his workers’ demands for higher wages — by kidnapping
and murdering the men and then decorating the scene with Shining
Path symbols to make it appear that the men had fallen victim to the
Shining Path. The mode of these attacks does not favor Ordinola.
They suggest a level of indiscriminate, clandestine killing based on
suspect intelligence and political favors, as well as subsequent cover-
ups that attempted to conceal the murders and destroy evidence. See,
e.g., Matter of Extradition of Marzook, 924 F. Supp. 565, 577
(S.D.N.Y. 1996) (rejecting political offense exception because of
indiscriminate killings of civilians that approach "crimes abhorrent to
human nature").

Ordinola fares no better when looking to "the persons killed."
Ornelas, 161 U.S. at 511. None of the victims at issue here were
armed at the time of attack or engaging in any overt hostility toward
the Peruvian government. The magistrate judge accordingly found
that "the victims in this case were clearly civilians, and of those who
were alleged to have terrorist connections, evidence of such connec-
tions is tenuous at best." (J.A. at 31.) In so finding, the magistrate
judge noted, inter alia, that the little boy who was killed while running
to aid his dying father "was almost certainly not a terrorist, and the
same can most likely be said for the other partygoers." (J.A. at 31.)
The magistrate judge also found that the factory workers were tar-
geted not because they were terrorists, but "because their boss wanted
20 ORDINOLA v. HACKMAN
to retaliate against them for demanding better working conditions."
(J.A. at 31.)

Recognizing the exceeding difficulty in attacking the sufficiency of
the evidence supporting the magistrate judge’s findings that the vic-
tims were not active members of the Shining Path, see Ornelas, 161
U.S. at 512 ("It is enough if it appear[s] that there was legal evidence
on which the [magistrate judge] might properly conclude that the
accused had committed offenses within the treaty as charged. . . ."
(emphasis added)); cf. Anderson v. City of Bessemer, 470 U.S. 564,
574 (1985) (holding that a reviewing court may not reverse a plausi-
ble account of the evidence "even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differ-
ently"), Ordinola instead contends that the civilian status of the vic-
tims is not especially relevant in this instance.14 We disagree.

Ordinola relies on language from Quinn v. Robinson,15 where the
14
The district court suggested that it could not examine the status of the
victims because "to do so would intrude upon the internal affairs of
Peru." (J.A. at 528.) Of course, this begs the unanswered questions of
how and why.
The district court further suggested that the exception must apply to
government actors "seeking to protect their legal order as opposed to pro-
tecting a terrorist organization’s violent attempts to overthrow the gov-
ernment." (J.A. at 522.) This distinction is nonsensical. There is no
reason to assume that the two are mutually exclusive. First, one could
decide that the political offense exception does not apply to "terrorists"
while at the same time deciding that it does not apply to government
actors seeking to protect the legal order, or vice versa. Second, when
government actors "protect their legal order" through legal means, there
can be no extradition. Extradition is only proper for acts that are crimi-
nalized in both nations. Regardless, to assuage the district court’s fears
of protecting terrorists, we note that the Treaty itself provides that "of-
fenses related to terrorism, as set forth in multilateral international agree-
ments to which both Contracting States are parties" shall not be
considered to be political offenses. Extradition Treaty, art. IV, sec. 2.
15
Quinn was a member of the Irish Republican Army whom Great
Britain sought to extradite for murder and bombings. Quinn v. Robinson,
783 F.2d 776, 781 (9th Cir. 1986). The Ninth Circuit, in a splintered
 ORDINOLA v. HACKMAN 21
Ninth Circuit concluded that "there is no justification for distinguish-
ing . . . between attacks on military and civilian targets." Quinn, 783
F.2d at 810. In support of this "non-judgmental" contention, the court
noted its view that "[i]t is for the revolutionaries, not the courts, to
determine what tactics may help further their chances of bringing
down or changing the government." Id.

We respectfully disagree with this conclusion and hold that there
are in fact sound justifications for distinguishing between civilian and
governmental — or in this case, revolutionary — targets. The first
justification, of course, is that the Supreme Court has held that the
civilian status of the "persons killed" is relevant. Ornelas, 161 U.S.
at 511. Moreover, both the Second and Seventh Circuits have
addressed the question and have concluded, like we do, that the status
of the victims is relevant.16 See Ahmad, 910 F.2d at 1066 (holding that

opinion with all three members of the panel writing, concluded that the
political offense exception did not apply. Judge Reinhardt’s lead opinion
ultimately concluded that London (the site of the crimes) was not the
situs of an ongoing rebellion. In dicta, however, Judge Reinhardt
described a "liberal" test to decide whether the criminal action was
closely connected or in furtherance of the political movement. Quinn,
783 F.2d at 809. Judge Fletcher dissented on the situs issue, but joined
Judge Reinhardt’s interpretation of the incidence test. Judge Duniway
concurred in the situs holding, but rejected Judge Reinhardt’s dicta. The
Quinn majority saw no justification for a "strict nexus standard" because
in its view, it was "the ‘uprising’ component that plays the key role in
ensuring that the incidence test protects only those activities that the
political offense doctrine was designed to protect." Id. at 806, 809. We
disagree because focusing so intently on the presence of an uprising will
push courts dangerously close to protecting "isolated acts of social vio-
lence undertaken for personal reasons . . . simply because they occurred
during a time of political upheaval, a result we think the political offense
exception was not meant to produce." Eain v. Wilkes, 641 F.2d 504, 521
(7th Cir. 1981).
16
Recently, Judge Rymer argued in dissent that an en banc panel of the
Ninth Circuit should overrule Quinn and "instead follow the approach
articulated by the Supreme Court in Ornelas." Barapind v. Enomoto, 400
F.3d 744, 753 (9th Cir. 2005) (en banc) (Rymer, J., dissenting). Judge
Rymer explained:
22 ORDINOLA v. HACKMAN
an attack on a commercial bus full of innocent civilians was not a
political offense despite the existence of a political motivation); Eain,
641 F.2d at 521 (holding that "the indiscriminate bombing of a civil-
ian populace is not recognized as a protected political act").

Second, it must be remembered that we are interpreting the Treaty
to define the term "political offense." In doing so, we must afford
"great weight" to the meaning attributed to the provision by the State
Department, as it is charged with enforcing the Treaty. Sumitomo
Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982); see also
Al-Hamdi, 356 F.3d at 570 (granting "substantial deference" to the
State Department’s interpretation of provisions of the Vienna Con-
vention). The State Department has previously expressed the view
that "the political offense exception is not applicable to violent attacks
on civilians," Ahmad v. Wigen, 726 F. Supp. 389, 402 (E.D.N.Y.
1989), aff’d, 910 F.2d 1063 (2d Cir. 1990), and at oral argument,
Government counsel informed us that the department continues to
generally adhere to that view.

Third, the status of the victims has been an important factor since
the inception of the political offense exception. See, e.g., Ahmad, 726
F. Supp. at 404 ("In finding no distinction between targets, the Ninth
Circuit ignored the fact that the civilian status of victims has been a
significant factor in the political offense calculus since the nineteenth
century."). In fact, aside from Ninth Circuit caselaw, we can find no
other American authority stating that the civilian status of victims is
irrelevant. Rather, the precedents and authorities stand firmly on the
opposite front. See, e.g., Ornelas, 161 U.S. at 511; Ahmad, 910 F.2d

I believe we must overrule Quinn, because indiscriminate vio-
lence against innocent persons should not qualify for the political
offense exception to extradition, even if politically motivated.
Nor should the propriety of committing common crimes be left
to the perpetrators’ discretion. And civilians are different from
the military. Overruling Quinn would realign us with the two cir-
cuits that have addressed attacks on non-combatant civilian tar-
gets and held them to be unprotected.
Id. at 756. We find her dissent persuasive.
 ORDINOLA v. HACKMAN 23
at 1066; Eain, 641 F.2d at 520-21; Manuel R. Garcia-Mora, Crimes
Against Humanity and the Principle of Nonextradition of Political
Offenders, 62 Mich. L. Rev. 927, 944 (1964) ("[T]he means by which
hostilities are conducted must be legitimately connected with the war
to be characterized as political. It can scarcely be denied that the com-
mission of atrocities during the conduct of hostilities or during bellig-
erent occupation has no connection with furthering the legitimate
policy of the State."); Steven Lubet & Morris Czackes, The Role of
the American Judiciary in the Extradition of Political Terrorists, 71
J. Crim L. & Criminology 193, 202 (1980) ("[A]n offense having its
impact upon the citizenry, but not directly upon the government, does
not fall within the political offense exception.").

Fourth, by refusing to examine the scope of the attack, the mode
of the attack, and the victims of the attack, the Ninth Circuit’s
approach results in defining a political offense as any common crime
that occurs during a political uprising so long as the accused claims
a political motive connected to the uprising. As explained above, we
must reject such a subjective test. See also Eain, 641 F.2d at 521
(explaining the danger of abusing a treaty to protect criminals "simply
because [their crimes] occurred during a time of political upheaval").

Accordingly, the magistrate judge’s reasonable finding that
Ordinola’s alleged offenses were carried out against innocent civilians
largely dooms Ordinola’s argument. Because that finding was legiti-
mately made, it simply cannot be said that the magistrate judge had
no choice but to define Ordinola’s alleged actions as political offenses.17
17
As an alternative holding, the magistrate judge found that "even
assuming arguendo that the victims had more demonstrable ties to the
Shining Path, Mr. Ordinola’s alleged actions still fail to fall within the
political offense exception, for they violate the laws of armed conflict."
(J.A. at 31.) Ordinola argues that this was clear error. Because we hold
that the magistrate judge did not err in its primary holding, we need not,
and do not, reach the merits of its alternative holding. We note, however,
that there exists support for both sides of the argument. Compare United
States ex rel Branko Karadzole v. Artukovic, 170 F. Supp. 383, 392 (S.D.
Cal. 1959) (finding that the political offense exception applies and reject-
ing the necessity of any inquiry into whether the accused’s actions con-
stituted "so-called war crimes"), with Ahmad v. Wigen, 726 F. Supp. 389,
408 (E.D.N.Y. 1989) (holding that an action cannot be defined as a polit-
ical offense if it "violate[s] the Law of Armed Conflict").
24 ORDINOLA v. HACKMAN
To have been considered political offenses, Ordinola’s actions would
had to have been in some way proportional to or in furtherance of
quelling the Shining Path’s rebellion. See id. at 521 (noting that the
"legitimacy of a cause does not in itself legitimize the use of certain
forms of violence especially against the innocent" (internal quotation
marks and alteration omitted)). The magistrate judge did not err in
recognizing that terror, for terror’s sake, was not a sufficient method
of quelling the Shining Path’s uprising. Cf. id. ("The exception does
not make . . . the cold-blooded murder of civilians incidental to a pur-
pose of toppling a government, absent a direct link between the perpe-
trator, a political organization’s political goals, and the specific act.");
Lubet & Czackes, supra, at 202 ("An offense which is intended only
to disrupt the social order, but not to maintain or alter the government,
is not political.").

C.

Finally, both parties suggest that we make inferences based on the
motives of the requesting government. For example, Ordinola con-
tends that "a new government seeks to punish [him as a] member[ ]
of a former government for [his] conduct in suppressing a violent
uprising." (Appellant’s Br. at 29.) The Government, for its part, points
out that this is not a "new government" comprised of the revolution-
aries Ordinola once fought; rather, it is the same democratically
elected government — albeit a different administration — that
requests Ordinola’s extradition. Although the Government’s interpre-
tation is correct on the facts, the motives of the requesting govern-
ment are irrelevant to our decision. The Treaty states that extradition
will be denied "if the executive authority of the Requested State deter-
mines that the request was politically motivated." Extradition Treaty,
art. IV, sec. 3 (emphasis added). Any question into the Peruvian gov-
ernment’s motivations is therefore well beyond this Court’s legitimate
realm of authority under the Treaty and must be addressed solely to
the Secretary of State.18 See Eain, 641 F.3d at 513 ("It is the settled
18
There exists a plausible policy argument that extradition of former
government officials should as a rule not be denied in cases like this,
when it is the same government requesting the former official for prose-
cution. We cannot endorse such an argument, which finds no support in
 ORDINOLA v. HACKMAN 25
rule that it is within the Secretary of State’s sole discretion to deter-
mine whether or not a country’s requisition for extradition is made
with a view to try or punish the fugitive for a political crime, i.e.,
whether the request is a subterfuge."); cf. United States v. Kin-Hong,
110 F.3d 103, 111 (1st Cir. 1997) ("[I]t is not that questions about
what awaits the relator in the requesting country are irrelevant to
extradition; it is that there is another branch of government, which has
both final say and greater discretion in these proceedings, to whom
these questions are more properly addressed.").

V.

For the reasons outlined above, the district court erred in granting
Ordinola’s petition for a writ of habeas corpus. In affording proper
deference under habeas review to the magistrate’s decision, we sim-
ply cannot say that the magistrate judge had "no choice" but to find
that the common crimes Ordinola is alleged to have committed

the text of the Treaty or the history of the exception. Moreover, if any-
thing is for sure, it is that our treaties forbid the extradition of someone
charged with pure political offenses, such as treason. There is no justifi-
cation for abandoning judicial enforcement of that long-standing rule in
certain cases simply because the treason was committed by a former gov-
ernment official seeking regime change.
Consider, for example, Soviet government officials who became disen-
chanted with communist ideology during the Cold War and sought to
provide classified information to the United States as a means of institut-
ing regime change in Russia. See Edward Jay Epstein, The Spy War,
N.Y. Times Magazine, Sep. 28, 1980, at 34 (chronicling such spies). If
one of those spies fled to the United States, and the Soviet government
charged him with treason and sought his extradition as a former govern-
ment employee, the United States judiciary would be required to certify
him to the Secretary of State as extraditable under the rule noted above.
Aside from the fact that this theory finds no support in the plain language
of the Treaty or in the historical application of the political offense
exception, the absurd result reached in the above hypothetical is alone
enough to condemn the proposed rule. See Walton v. Johnson, 440 F.3d
160, 181 (4th Cir. 2006) (en banc) (Williams, J., concurring) (explaining
that there is good reason to reject a test when the "test founders in a
hypothetical case that could come before the court").
26 ORDINOLA v. HACKMAN
against noncombatant civilians were political offenses under the
Treaty with Peru. We therefore must vacate the district court’s grant
of the writ, and remand for reentry of a Certification of Extradita-
bility. We note, however, that judicial review is not the only recourse
available to Ordinola, as he is free to contest his extradition before the
United States Secretary of State.

VACATED AND REMANDED

TRAXLER, Circuit Judge, concurring:

I agree that the magistrate judge correctly certified pursuant to 18
U.S.C.A. § 3184 (West Supp. 2006) that Ordinola may be surrendered
to Peru under the terms of the Extradition Treaty between the United
States and Peru. Accordingly, I concur in the result reached by the
majority opinion vacating the grant of habeas relief by the district
court and directing reentry of the certification of extraditability.
Because I would follow a different analytical approach, however, I
write separately.

I.

The Judiciary’s Limited Role in International Extradition Cases

Extradition is "the surrender by one nation to another of an individ-
ual accused or convicted of an offense outside of its own territory,
and within the territorial jurisdiction of the other [nation], which
. . . demands the surrender." Terlinden v. Ames, 184 U.S. 270, 289
(1902). There is no general duty under international law, however, for
a sovereign nation to surrender an accused fugitive upon demand. See
Factor v. Laubenheimer, 290 U.S. 276, 287 (1933). The right of one
sovereign to demand that another sovereign extradite an accused
criminal arises, if at all, by treaty; thus, no duty to surrender an
alleged fugitive to a foreign government exists apart from an extradi-
tion treaty. See id.; see also United States v. Alvarez-Machain, 504
U.S. 655, 664 (1992) ("Extradition treaties exist so as to impose
mutual obligations to surrender individuals in certain defined sets of
circumstances, following established procedures.").
 ORDINOLA v. HACKMAN 27
Because extradition is a creature of treaty, "the power to extradite
derives from the President’s power to conduct foreign affairs." Sidali
v. INS, 107 F.3d 191, 194 (3d Cir. 1997); see U.S. Const. art. II, § 2,
cl. 2. Extradition, therefore, is an executive function rather than a
judicial one. See, e.g., Martin v. Warden, 993 F.2d 824, 828 (11th Cir.
1993). It involves a "diplomatic process carried out through the pow-
ers of the executive, not the judicial, branch." Blaxland v. Common-
wealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.
2003). The decision to extradite is one that is "entirely within the dis-
cretion of the executive branch, except to the extent that the statute
interposes a judicial function." Lopez-Smith v. Hood, 121 F.3d 1322,
1326 (9th Cir. 1997).

Still, the judiciary plays a limited role in the overall extradition
process, as prescribed by Congress in the Extradition Act. See 18
U.S.C.A. §§ 3181-3186 (West 2000 & Supp. 2006); see Sidali, 107
F.3d at 194 ("[T]he judiciary has no greater role than that mandated
by the Constitution, or granted to the judiciary by Congress." (internal
quotation marks omitted)). The essential function served by an extra-
dition court under the statute is "to determin[e] an individual’s eligi-
bility to be extradited," meaning that the court must "ascertain[ ]
whether a crime is extraditable under the relevant treaty and whether
probable cause exists to sustain the charge." Vo v. Benov, 447 F.3d
1235, 1245 (9th Cir.), cert. denied, 127 S. Ct. 317 (2006). A primary
purpose of the extradition statute is to "interpos[e] the judiciary
between the executive and the individual," Austin v. Healey, 5 F.3d
598, 604 (2d Cir. 1993), as well as provide a means of "independent
review" of executive action. Martin, 993 F.2d at 828. The extradition
court’s statutory inquiry is simply a "preliminary examination to
determine whether a case is made out which will justify the holding
of the accused and his surrender to the demanding nation." Lo Duca
v. United States, 93 F.3d 1100, 1104 (2d Cir. 1996) (internal quota-
tion marks omitted). Therefore, the "judicial officer who conducts an
extradition hearing . . . performs an assignment in line with his or her
accustomed task of determining if there is probable cause to hold a
defendant to answer for the commission of an offense." Id. (internal
quotation marks omitted); cf. In re McMullen, 989 F.2d 603, 611 (2d
Cir. 1993) (en banc) ("What is at issue in the proceeding . . . is not
punishability but prosecutability." (internal quotation marks omit-
ted)). Thus, there is no direct appeal from the extradition court’s
28 ORDINOLA v. HACKMAN
determination that an individual is or is not subject to extradition
habeas corpus provides the only means of review. See Eain v. Wilkes,
641 F.2d 504, 508-09 (7th Cir. 1981).

Ultimately, the decision whether to surrender a person found eligi-
ble for extradition remains a discretionary one committed to the exec-
utive branch. The judiciary has no power to order the extradition of
the alleged fugitive. After the extradition court completes its limited
inquiry, the executive, through the Secretary of State, makes a discre-
tionary decision whether extradition, although permissible under the
statute, is appropriate based on "factors affecting both the individual
defendant as well as foreign relations in deciding whether extradition
is appropriate." Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006)
(internal quotation marks omitted).

In addition to the limits established by statute, federal courts have
developed various self-limiting principles that "ensure, among other
things, that the judicial inquiry does not unnecessarily impinge upon
executive prerogative and expertise." United States v. Kin-Hong, 110
F.3d 103, 110 (1st Cir. 1997). These judicially-created doctrines keep
extradition courts within the bounds of the limited judicial inquiry set
by statute and serve as a barrier to the expansion of the judiciary’s
role through habeas review.

One such limiting doctrine, for example, is the rule of non-inquiry,
pursuant to which courts refrain from delving into and assessing the
competence of the requesting government’s system of justice. See id.
at 110-11. Questions about the procedural fairness of another sover-
eign’s justice system or whether the individual to-be-surrendered
faces inhumane treatment are within the purview of the executive
branch. See id. at 111 ("It is not that questions about what awaits the
relator in the requesting country are irrelevant to extradition; it is that
there is another branch of government, which has both final say and
greater discretion in these proceedings, to whom these questions are
more properly addressed."). Likewise, it is a question for the execu-
tive branch, not the courts, whether the requesting nation is sincere in
its demand for extradition or is merely using the process as a subter-
fuge to exact revenge against an opponent of the government. See
Eain, 641 F.2d at 513. The rule of non-inquiry, then, "serves interests
of international comity by relegating to political actors the sensitive
 ORDINOLA v. HACKMAN 29
foreign policy judgments that are often involved in the question of
whether to refuse an extradition request." Hoxha, 465 F.3d at 563.

Courts also assume a deferential posture when it comes to deter-
mining the existence or continuing validity of an extradition treaty on
the grounds that such questions are essentially political. See id. at 562.
Courts accord the executive branch’s construction of a treaty "great
weight," Kin-Hong, 110 F.3d at 110, largely because the executive
branch wrote and negotiated the document being interpreted, see In
re Howard, 996 F.2d 1320, 1330 n.6 (1st Cir. 1993).

In sum, federal courts — whether it be a magistrate judge serving
as the extradition court or a district judge sitting in habeas — are
tasked with resolving a single issue — does the purported fugitive
appear to be eligible for extradition under the relevant treaty?

Extradition Proceedings under 18 U.S.C. § 3184

Extradition in the United States is generally initiated by the sub-
mission of an extradition request from a foreign government to the
United States Department of State, pursuant to the relevant treaty. See
Barapind v. Reno, 225 F.3d 1100, 1105 (9th Cir. 2000). This request
must generally "be supported by sufficient evidence to show that the
individual is the person sought for the crimes charged, that the crimes
are among those listed as extraditable offenses in the Treaty and that
there is sufficient justification for the individual’s arrest had the
charged crime been committed in the United States." Eain, 641 F.2d
at 508. The State Department makes an initial evaluation to determine
whether the request falls within the scope of the treaty, see Vo, 447
F.3d at 1237, and then turns the matter over to the appropriate United
States Attorney for the filing of a complaint seeking a certificate of
extradition under 18 U.S.C.A. § 3184, see Eain, 641 F.2d at 508.

From that point, the U.S. Attorney essentially represents the for-
eign government seeking return of the alleged fugitive in all extradi-
tion litigation. The statute directs the U.S. Attorney to submit the
complaint for an arrest warrant "under oath" to an extradition officer,
i.e., "any justice or judge of the United States, or any magistrate
authorized . . . by a court of the United States." 18 U.S.C.A. § 3184.
In practice, this is generally a magistrate judge who holds a limited
30 ORDINOLA v. HACKMAN
"hearing to determine whether (1) the crime is extraditable; and (2)
there is probable cause to sustain the charge." Prasoprat v. Benov,
421 F.3d 1009, 1012 (9th Cir. 2005) (internal quotation marks omit-
ted), cert. denied, 126 S. Ct. 1335 (2006); see 18 U.S.C.A. § 3184.
The extradition hearing, of course, "‘is not . . . in the nature of a final
trial by which the prisoner could be convicted or acquitted of the
crime charged against him.’" LoDuca, 93 F.3d at 1104 (quoting Ben-
son v. McMahon, 127 U.S. 457, 463 (1888)). Stated differently, the
hearing is "not designed as a full trial" but as a means of "inquir[ing]
into the presence of probable cause to believe that there has been a
violation of one or more of the criminal laws of the extraditing coun-
try." Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976); see Eain,
641 F.2d at 508 ("It is fundamental that the person whose extradition
is sought is not entitled to a full trial at the magistrate’s probable
cause hearing. . . . That is the task of the . . . courts of the other coun-
try.").

Although the extradition statute does not mention "probable cause"
and instead directs the extradition court to determine whether there is
"evidence sufficient to sustain the charge under the provisions of the
proper treaty or convention," 18 U.S.C.A. § 3184, courts have uni-
formly interpreted the statutory language to require a finding of
"probable cause." See Vo, 447 F.3d at 1237; Sidali, 107 F.3d at 195.
Thus, "[t]he probable cause standard applicable to an extradition hear-
ing is the same as the standard used in federal preliminary hearings,"
meaning that the magistrate judge’s role is merely "to determine
whether there is competent evidence to justify holding the accused to
await trial." Hoxha, 465 F.3d at 561 (internal quotation marks omit-
ted). In that vein, the evidence considered by the magistrate as part
of an extradition hearing "need not meet the standards for admissibil-
ity at trial" and "may be based upon hearsay in whole or in part." Kin-
Hong, 110 F.3d at 120 (internal quotation marks omitted).

Not only are the admissibility standards relaxed, but the alleged
fugitive’s ability to challenge the government’s evidence or to submit
evidence of his own at the extradition hearing is also significantly
limited. For example, the fugitive has no right to cross-examine wit-
nesses, see Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1406-07 (9th
Cir. 1988), or to introduce "contradictory evidence" that conflicts with
the government’s probable cause evidence, see Hoxha, 465 F.3d at
 ORDINOLA v. HACKMAN 31
561. By contrast, "explanatory evidence" relating to the underlying
charges is admissible. See Koskotas v. Roche, 931 F.2d 169, 175 (1st
Cir. 1991).1

If the extradition judge concludes that there is, in fact, probable
cause, he "is required to certify the individual as extraditable to the
Secretary of State." Vo, 447 F.3d at 1237 (internal quotation marks
omitted). As previously noted, once the judicial officer determines
that an individual is eligible for extradition, the matter returns to the
Secretary of State for the executive branch to make the ultimate deci-
sion whether to surrender the requested fugitive. See, e.g., Cheung v.
United States, 213 F.3d 82, 88 (2d Cir. 2000); see 18 U.S.C.A. § 3186
(West 2000) ("The Secretary of State may order the person committed
under section 3184 . . . to be delivered to any authorized agent of [the
requesting] foreign government . . . ." (emphasis added)).

Finally, as noted previously, part of the extradition court’s duty is
to determine whether the crime charged is covered by the particular
extradition treaty as an extraditable offense. Naturally, this determina-
tion may require the extradition judge to decide whether the charged
offense falls within the political offense exception. If it does, then the
offense is a non-extraditable one and the accused fugitive cannot be
eligible for extradition, despite the existence of probable cause. See,
e.g., Vo, 447 F.3d at 1237-38. Such a decision effectively removes
discretion from the Secretary of State, who may not extradite in the
absence of a certificate of extraditability. See 18 U.S.C.A. § 3186.
The government, however, may continue to pursue the necessary cer-
tification by presenting its case to a different magistrate judge. See
Collins v. Loisel, 262 U.S. 426, 420-30 (1923).

Habeas Review of the Certification of Extraditability

Assuming the extradition judge certifies the extradition request to
the Secretary of State, the fugitive has but one means of judicial
1
The line between inadmissible contradictory evidence and admissible
explanatory evidence is often difficult to fix. See Hoxha, 465 F.3d at 561.
In this case, however, Ordinola did not introduce any evidence of his
own. Both parties attempted to establish their respective positions based
on the government’s submissions.
32 ORDINOLA v. HACKMAN
recourse — filing a habeas petition under 28 U.S.C.A. § 2241 (West
2000). See Collins v. Miller, 252 U.S. 364, 369-70 (1920); see also
Kastnerova v. United States, 365 F.3d 980, 984 n.4 (11th Cir. 2004)
("There is no direct appeal in extradition proceedings."); Plaster v.
United States, 720 F.2d 340, 347-48 (4th Cir. 1983).

Habeas review in the extradition context is very narrow. See Kast-
nerova, 365 F.3d at 984. Essentially, habeas review of the extradition
court’s certification is limited to consideration of whether the extradi-
tion court had jurisdiction, whether the charged crime qualifies as an
extraditable offense under the treaty, and whether there is "any evi-
dence" to support the magistrate judge’s finding of probable cause.
Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir. 1984) (quot-
ing Fernandez v. Phillips, 268 U.S. 311, 312 (1925)); see Kastnerova,
365 F.3d at 985 (explaining that the habeas court’s job is to determine
"whether the Government presented competent evidence upon which
the magistrate could find there were reasonable grounds upon which
to believe [the accused fugitive] guilty of the charged offenses").
Thus, the standard of review applied to the decision of a magistrate
judge to issue a certificate of extradition is at least as deferential, if
not more so, than that applied to a magistrate judge’s decision to issue
a search warrant. See Illinois v. Gates, 462 U.S. 213, 236 (1983)
(requiring appellate courts to affirm the issuance of a warrant if there
is a "substantial basis" to support the magistrate judge’s probable
cause determination (internal quotation marks omitted)). It is well-
established that a reviewing court is not permitted to substitute its
own view of the facts for the findings of the magistrate judge. See
United States v. Fuller, 441 F.2d 755, 759 (4th Cir. 1971).

In no sense does a habeas action for the review of an extradition
decision afford the reviewing court an opportunity to weigh the evi-
dence or serve in a fact-finding capacity. Just as the magistrate
judge’s underlying determination is not a mini-trial on the guilt or
innocence of the fugitive, the district court’s habeas review should not
duplicate the extradition hearing — habeas review "is not a means for
rehearing the magistrate’s findings." Afanasjev v. Hurlburt, 418 F.3d
1159, 1163 (11th Cir.) (internal quotation marks omitted), cert.
denied, 126 S. Ct. 587 (2005). As long as the factual findings that
support the magistrate judge’s legal conclusions are not clearly erro-
neous, the reviewing court is bound by the facts as determined by the
 ORDINOLA v. HACKMAN 33
magistrate. The reviewing court may not substitute its own assess-
ment of the facts for that of the magistrate judge nor may it make
additional, new findings of fact that the extradition court did not
make.

In this case, the only real question is whether the charged crime is
an extraditable offense under the treaty — if Ordinola is charged with
a political offense, it is not an extraditable crime. The magistrate
judge’s determination in this regard required factual findings and the
application of law to such facts; therefore, we are presented with a
mixed question of law and fact. See Ornelas v. Ruiz, 161 U.S. 502,
509 (1896); see also Vo, 447 F.3d at 1240. We review the extradition
court’s factual findings for clear error and its conclusions of law de
novo. See Afanasjev, 418 F.3d at 1163.

II.

A.

Under the bilateral extradition treaty, the United States and Peru
"agree to extradite to each other . . . persons whom the authorities in
the Requesting State have charged with, found guilty of, or sentenced
for, the commission of an extraditable offense." Extradition Treaty
with Peru, U.S.-Peru, July 26, 2001, S. Treaty Doc. 107-6 (2002)
[hereinafter Peru Treaty], art. I. The treaty defines an extraditable
offense as an offense that is "punishable under the laws in both Con-
tracting States by deprivation of liberty for . . . more than one year
or by a more severe penalty," Peru Treaty, art. II, § 1, or the attempt
to commit such an offense, see Peru Treaty, art. II, § 2.

Article IV of the extradition treaty also sets forth several specific
bases for denying an extradition request, including the mandatory
denial of extradition for political offenses: "Extradition shall not be
granted if the offense for which extradition is requested constitutes a
political offense." Peru Treaty, art. IV, § 2. As is typical of interna-
tional extradition treaties, however, the bilateral extradition agree-
ment between the United States and Peru does not define what
constitutes a "political offense." Instead, it specifies three offenses
that do not qualify as a political offense: (1) murder "of a Head of
State of one of the Contracting States"; (2) "genocide, as described in
34 ORDINOLA v. HACKMAN
the Convention on the Prevention and Punishment of the Crime of
Genocide"; and (3) "an offense for which both Contracting States
have the obligation pursuant to a multilateral international agreement
to extradite the person sought or to [prosecute] the case . . . ." Id.2

It has fallen to the courts to develop and establish the contours of
the political offense exception to the duty to extradite. See Barbara
Sicalides, Comment, RICO, CCE, and International Extradition, 62
Temp. L. Rev. 1281, 1301 (1989) ("Because there is no international
agreement concerning which crimes constitute political offenses and
because the term is seldom defined in treaties, its definition and appli-
cation have been left to the courts."); M. Bassiouni, International
Extradition and World Public Order 322, 371 (1974) (noting that the
judiciary is the primary source for developing the parameters of the
political offense exception). As the majority opinion ably explains,
federal courts recognize a distinction between "pure" and "relative"
political offenses. See Quinn v. Robinson, 783 F.2d 776, 793 (9th Cir.
1986). Ordinola argues that he is charged with crimes that would
qualify as relative political offenses, i.e., common crimes that are "so
connected with a political act that the entire offense is regarded as
political." Eain, 641 F.2d at 512 (internal quotation marks omitted).
"Pure" political offenses such as espionage or treason are rarely, if
ever, at issue in extradition litigation; it is the "relative" category
involving otherwise extraditable common crimes that produces signif-
icant "definitional problems." Quinn, 783 F.2d at 793-94. The ques-
tion of whether a common crime is sufficiently connected to a
political act would seem to require courts to venture beyond their lim-
its in the extradition process and into the political domain of the exec-
utive branch. See Eain, 641 F.2d at 513 (noting the anomalous nature
of the judicial branch’s historical practice of deciding whether a crime
charged under the law of a foreign sovereign is a political offense).
Nevertheless, the long-established practice of the judiciary is to deter-
2
The extradition treaty lists two offenses that fall within this latter cate-
gory of offenses which the contracting states have an obligation to extra-
dite pursuant to a multilateral international agreement: drug trafficking
and "offenses related to terrorism." Peru Treaty, art. IV, § 2(c)(i), (ii).
The text makes clear, however, that this list is not intended to be exhaus-
tive.
 ORDINOLA v. HACKMAN 35
mine whether the political offense exception applies to a given com-
mon crime. See Ornelas, 161 U.S. at 502.

The primary test for determining whether a crime is a relative polit-
ical offense, as noted by the majority, involves two questions: (1)
whether, at the time of the alleged offense, there was a "violent politi-
cal disturbance, such as war, revolution and rebellion"; and (2)
whether the alleged offense was "committed in the course of and inci-
dental to" the violent political disturbance. Escobedo v. United States,
623 F.2d 1098, 1104 (5th Cir. 1980). Virtually every court to encoun-
ter the question of whether the alleged crime is a relative political
offense has applied this two-pronged test. See, e.g., Barapind v. Eno-
moto, 400 F.3d 744, 750 (9th Cir. 2005) (en banc).

The political offense exception provides the would-be extraditee
with an affirmative defense to extradition. See Vo, 447 F.3d at 1242.
Thus, once the government carries its burden of establishing that the
defendant is subject to extradition, the burden shifts to the extraditee
to prove that the crimes with which he is charged are political
offenses. See id.

B.

As thoroughly detailed by Judge Williams, Ordinola was charged
in Peru with Aggravated Homicide and Aggravated Kidnaping,
among other offenses, arising out of Ordinola’s association with the
Colina Group, a counter terrorist unit within the Peruvian Army
assigned to combat the Shining Path, a violent revolutionary group
bent on destroying Peru’s government. The charges against Ordinola
stem from four underlying incidents that occurred in 1991 and 1992
in which Ordinola and other members of the Colinas allegedly brutal-
ized and murdered numerous individuals.

Ordinola claims that these offenses cannot serve as the bases for
extradition because he committed the underlying acts in the course of
his duty as a Colina Group member to fight the terrorist threat posed
by the Shining Path. Ordinola suggests that he was merely carrying
out his duty to preserve the government in the midst of political
upheaval; therefore, he contends that the underlying crimes with
36 ORDINOLA v. HACKMAN
which he is charged qualify as "political offenses" within the meaning
of the Extradition Treaty between the United States and Peru.

Ordinola’s defense to extradition raises an interesting theoretical
issue about the application of the political offense exception to former
government agents charged with crimes committed while there is an
ongoing political uprising against the government. See Aimee J.
Buckland, Comment, Offending Officials: Former Government Actors
and the Political Offense Exception to Extradition, 94 Cal. L. Rev.
423, 424 (2006) ("[T]he law is unsettled as to whether former govern-
ment officials may use the political offense exception and whether the
exception is appropriate in this context."). "The original purpose of
the political offense exception to extradition was to protect revolu-
tionaries from being returned to . . . face prosecution for crimes com-
mitted against their governments," id. at 423, not to afford protection
to those seeking to suppress a rebellion. There is support for the posi-
tion that the political offense exception does not apply in a situation
such as Ordinola’s because, "[a]rguably, everything a government
actor does is ‘political’ . . . [and therefore] the exception theoretically
protects former government officials from facing their accusers
merely because they used to govern them." Id. at 424. See In re Extra-
dition of Suarez-Mason, 694 F. Supp. 676, 705 (N.D. Cal. 1988) (con-
cluding that "the principles underlying the political offense exception
are ill-served by extending its protection to former government offi-
cials").

Unfortunately, the issue of whether the political offense exception
should ever be applied to a former government actor is not technically
before this court, the government having elected not to pursue the
argument before the extradition court and on habeas review. Accord-
ingly, we have no occasion to address this difficult problem directly
and must assume the exception is theoretically available to an extra-
ditee such as Ordinola. As a practical matter, however, the difficulty
of assessing a former government agent’s claim to the political
offense exception persists in Ordinola’s argument, which is essen-
tially no different than the claim that any acts he committed under the
auspices of the Colina Group were political. Indeed, the sole purpose
for the existence of the Colina Group was political: to preserve the
government from the revolutionary group that sought to overthrow it.
Specifically, Ordinola takes the position that he is charged with politi-
 ORDINOLA v. HACKMAN 37
cal offenses because the underlying acts were politically motivated —
he was acting pursuant to directives from his superior officers. Thus,
in Ordinola’s mind, he was fighting an insurgency. Ordinola’s argu-
ment seeks to reduce the test for determining whether the charged
crime falls within the political offense exception to one based on sub-
jective motivation. But, if we are going to permit a former govern-
ment actor to avail himself of the political offense exception, the
offender’s subjective motivation cannot serve as the sole determinate
of whether an offense is a political one. As Judge Williams correctly
noted, "[a]n offense is not of a political character simply because it
was politically motivated." Escobedo, 623 F.2d at 1104; see Ahmad
v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1999); Eain, 641 F.2d at 520
("[F]or purposes of extradition, motivation is not itself determinative
of the political character of any given act.").

Rather, the heart of the inquiry when it comes to determining
whether the charged offense falls within the political offense excep-
tion must be objective. See Ornelas, 161 U.S. at 509-12. Factors such
as "the character of the foray, the mode of attack, [and] the persons
killed or captured" are appropriate for courts to consider in determin-
ing whether, as an objective matter, the common crime at issue was
"incidental" to a major political disturbance or uprising. Id. at 511-12.

C.

The magistrate judge concluded that there was a political uprising
sufficient to meet the first prong of the incidence test. He concluded
further, however, that none of the four underlying events were suffi-
ciently incidental to the uprising to qualify as political offenses. The
magistrate judge’s conclusion that Ordinola’s charged offenses were
not "political offenses" rested primarily on his conclusion that the
"victims in this case were clearly civilians" with no connection to the
political upheaval in Peru at the time. J.A. 31. Sitting in review of the
extradition order, the district court concluded to the contrary — that
Ordinola was charged with a political offense because he "did not
knowingly murder innocent civilians" but was responding to the
threat posed by the Shining Path. J.A. 528.3 Although the district
3
In dismissing the magistrate court’s finding that the victims were
clearly civilians, the district court noted that "[i]t was not uncommon for
children or young teenagers to assume the terrorist roles of the Shining
Path." J.A. 527.
38 ORDINOLA v. HACKMAN
court’s assessment of the evidence presented to the magistrate judge
as part of the extradition hearing is certainly plausible, it ignores the
question of whether the magistrate judge’s assessment was clearly
erroneous. Rather than reviewing the extradition court’s factual find-
ings for clear error, the district court ruled based on its preferred view
of the record — that Ordinola’s targets were not necessarily civilians.
Additionally, the district court relied upon a new factual determina-
tion — that Ordinola did not act knowingly. The magistrate judge did
not make an explicit finding regarding Ordinola’s knowledge of the
civilian status of his victims. If anything, the magistrate judge implic-
itly declined to make such a finding, noting that subjective "political
intentions on the part of the extraditee are not enough to render an act
a political offense." J.A. 29. Moreover, the district court’s reliance on
this later finding of fact — Ordinola’s lack of knowledge — rests on
the same faulty premise as Ordinola’s argument that his subjective
motivation is a determining factor.

In any event, our review of the extradition decision must consider
the factual basis as determined by the magistrate judge without regard
to the district court’s view of the facts.

1. Barrios Altos Case

In May 1991, Ordinola and other members of the Colina Group
allegedly killed 15 people, including women and children, at a fund-
raiser purportedly being held to benefit the Shining Path. The magis-
trate judge found that the Colinas, riding in two vehicles, pulled up
at an apartment complex in the Barrios Altos section in Lima where
the party was proceeding in the complex’s yard and "opened fire on
the crowd of men, women, and children." J.A. 19. Ordinola was iden-
tified by another Colinas member as a participant in the attacks and
specifically as the shooter of a child who was running to his wounded
father. The magistrate judge concluded that "the little boy whom
[Ordinola] allegedly shot at the [fundraiser] . . . was almost certainly
not a terrorist, and the same can most likely be said for the other par-
tygoers." J.A. 31.

Ordinola does not contradict these facts. Rather, he contends that
other evidence submitted by the Peruvian government demonstrates
that the Colina Group was acting based on information provided by
 ORDINOLA v. HACKMAN 39
a government agent who infiltrated the Shining Path and reported that
members and friends of the Shining Path gathered socially where the
Barrios Altos killings occurred. Ordinola also highlights Peru’s
acknowledgment, in its extradition submission to the State Depart-
ment, that it "presumed that the murder and bodily injuries caused
. . . were motivated by a feeling of retaliation against terrorism." J.A.
441. Ordinola suggests, therefore, that his actions as a member of the
Colinas were undertaken in response to specific threats posed by the
Shining Path in order to protect the Peruvian government. Thus, he
argues that his crimes were incidental to the political disturbance in
Peru at the time.

The magistrate judge rejected Ordinola’s position, concluding that
"mere political intentions on the part of the extraditee are not enough
to render an act a political offense." J.A. 29. In determining that
Ordinola’s crimes were not incidental to the ongoing political distur-
bance in Peru, the magistrate judge listed the objective Ornelas fac-
tors but discussed only one of them — the status of the persons killed
or captured. The magistrate judge relied heavily on his determination
that the victims were civilians without any real connections to the
Shining Path.

I would agree that Ordinola failed to demonstrate that these actions
were "incidental" to a political disturbance. His argument is essen-
tially that his conduct with respect to the Barrios Altos slayings was
incidental to Peru’s political upheaval because his actions were
intended to further the Colinas’ overarching objective of destroying
the Shining Path. As suggested by the magistrate judge and explained
in the majority opinion, Ordinola’s subjective motivation, political
though it may have been, does not alone convert his common crimes
into political offenses. See Ahmad, 910 F.2d at 1066. Ordinola must
show that his crimes were incidental to the political uprising from an
objective vantage point, as well. He fails to do so. In fact, Ordinola
does not really challenge the magistrate judge’s finding of fact that
the victims were civilians with no ties to the Shining Path, and he has
failed to demonstrate that other Ornelas factors, such as the nature of
the attack, suggest a political crime. Actually, the facts noted by the
magistrate judge suggest precisely the opposite — the attack occurred
in a residential area being used for a social gathering and was not con-
nected to military operations against the government.
40 ORDINOLA v. HACKMAN
2. Chimbote Cotton Mill Workers Case

In May 1992, Peruvian Army General Juan Rivero arranged a
meeting between Colina Group leaders and Jorge Fung Pineda, the
owner of a private cotton mill. Cotton mill workers were making
demands for higher wages and better machinery. Pineda, who had
connections in the military, requested that the Colina Group, for a fee,
"get [the workers] involved in terrorism and teach them a good les-
son." J.A. 23. Members of the Colina Group, including Ordinola, kid-
naped eight workers from their homes and a ninth while he was riding
his bicycle, executed them and buried the bodies. At the burial loca-
tion, the Colinas used red paint to write Shining Path slogans.

Ordinola argues that he and the other Colinas acted under the
belief, based on information provided by government collaborators,
that the mill workers were involved in "subversive" activities. He sug-
gests that the evidence shows the Colinas were kept in the dark about
the true nature of their mission by superior officers. According to a
government witness, the Colinas believed they were executing terror-
ists and learned that the executions had been a "private job" only after
the fact.

Again, Ordinola’s argument hinges solely upon his subjective
belief that he was fighting the government’s war on terrorism, and
that the cotton mill workers were actually insurrectionists. But, such
facts do not demonstrate that the magistrate judge clearly erred in
finding that Ordinola’s actions were not incidental to a political upris-
ing. That Ordinola was acting upon orders from superior officers or
mistakenly believed that he was killing terrorists may ultimately dem-
onstrate that he lacked the intent to commit murder or kidnaping;
however, these issues are ones for the Peruvian justice system to sort
out after a full-blown trial. For our part, we are not concerned with
whether Ordinola has a defense to the underlying charges. Our job is
simply to decide whether Ordinola is charged with a political offense
based on the limited evidence adduced at the extradition hearing,
which is preliminary in nature and not designed to fully develop the
evidence.

3. La Cantutu and Bustamante Incidents

In July 1992, Ordinola and other members of the Colina Group
went to the dormitories at "La Cantutu" University, where an army
 ORDINOLA v. HACKMAN 41
agent had allegedly infiltrated and reported the presence of terrorists.
Wearing masks and carrying weapons, shovels and lime, Ordinola
and other Colinas removed fifty students from their rooms and assem-
bled them outside. The army agent identified ten of the fifty students
as terrorists. The Colinas also abducted a professor identified by the
agent as a terrorist. The students and the professor were taken to
another location, where they were executed after digging their own
graves. Members of the Colina Group subsequently exhumed and
incinerated the bodies for fear that they would be discovered.

In the final incident, which occurred in June 1992, Army Major
Rivas summoned the Colina Group, including Ordinola, and informed
them that they would conduct an operation in Huacho but did not pro-
vide any specifics. The following day, the Colina Group traveled in
two vans to an area near a beach. Rivas directed one group to dig a
grave and remain at the beach; the other group was ordered to abduct
Pedro Yauri Bustamante from his home and return with him to the
beach. Bustamante was a journalist who broadcast a daily radio pro-
gram in which he often criticized the government. Army Intelligence
had investigated Bustamante on two previous occasions and listed
him as active terrorist.

The magistrate judge found that, although "it is slightly more plau-
sible that the university students and professor and the journalist
. . . had ties to the Shining Path [than did fundraiser attendees or the
factory workers], the evidence [of such ties] is not strong." J.A. 31.

Ordinola’s response, again, is that the Colina Group acted accord-
ing to what it was told — that the targeted individuals were part of
the Shining Path. Because the mission of the Colina Group was to
eliminate the threat posed by the Shining Path, Ordinola argues that
these incidents were necessarily connected to the political uprising.
For the very same reasons set forth previously, I would reject this
argument as well. Ordinola relies on his subjective motivation alone
to prove that his crimes were political offenses; he fails to offer objec-
tive factors that demonstrate the political nature of the charged
offenses.

III.

In conclusion, when the magistrate judge viewed the evidence
objectively, he found it insufficient to show that the killings and kid-
42 ORDINOLA v. HACKMAN
napings were to suppress the Shining Path revolution. Men, women,
and children had been killed indiscriminately. Shining Path slogans
had been painted on the walls after the fact. Bodies were hidden or
incinerated. Not one shred of objective evidence showed any of the
victims to have been members or supporters of the Shining Path. Evi-
dence that Ordinola was told by informants or superiors that the per-
sons to be killed were insurgents or their supporters is not objective
proof that they were. Instead, that evidence goes to what Ordinola
subjectively believed and may be of relevance by way of defense to
the charges if he is ultimately returned to Peru for trial. Here, how-
ever, it cannot avail him. Consequently, I can find no clear error in
the conclusion of the magistrate judge that these crimes were not
political offenses within the meaning of the extradition treaty. There-
fore, I agree reversal of the district court is warranted.