dissenting from failure to take en banc,
with whom Circuit Judges PREGERSON, REINHARDT and O’SCANNLAIN join:1. The Article II Appellate Court. This case presents an issue of unusual significance for the Judicial Branch of the government: if a court of appeals established under Article III erroneously believes that it may and must act as an Article II court, and does so act, what is the validity of its decision?
This issue is posed by the panel decision in this case. The panel proclaims that it has jurisdiction of the appeal because of the Supplementary Treaty between the United States and the United Kingdom (hereafter the Treaty), Article 3(a). Matter of Requested Extradition of Smyth, 61 F.3d 711, 713 (9th Cir.1995). The panel goes on to declare “the rules of evidence and civil procedure that govern federal court proceedings heard under the authority of Article III of the United States Constitution do not apply in extradition hearings that are conducted under the authority of a treaty enacted pursuant to Article II. Cf. Fed.R.Evid. 1101(d)(3).” Id. at 720-721. The reference is to the proviso that the Federal Rules of Evidence are inapplicable to proceedings for extradition. The proviso, however, makes no reference to *1434the applicability of the Rules of Civil Procedure to extradition proceedings. Rule 1 of the Federal Rules of Civil Procedure states: “These rules govern the procedure in the United States district courts in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty, with the exceptions.stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every ■ action.” Rule 81 contains no exception for extradition. The Federal Rules of Civil Procedure govern an Article III court in such a case. The panel thought otherwise. As it believed that the proceedings were under Article II, neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure were operative in the district court. By the same token, the panel acted as though it was itself an Article II court.
Doing so, the panel misconceived its functions, misinterpreted the Treaty, and put the Ninth Circuit in direct conflict with the First Circuit. The latter court had earlier occasion to interpret the Treaty and to review the history of extradition proceedings. Past practice and precedent held that there was no direct appeal from an extradition order by either the extraditee or by the United States. See In re Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir.1993). The extradition officer was not exercising any part of the judicial authority of the United States. Therefore an unbroken line of precedents held that there could be no direct appeal from this officer’s order to an Article III court. Id.
The Treaty “effects a sea change in established policy.” Id. at 1326. The government in Howard objected, “imploring that neither the President nor the Senate intended to work so abrupt a tergiversation.” Id. The First Circuit was inexorable in its reading of the Treaty. Article 3(b) provided that a finding anent an Article 3(a) defense “shall be immediately appealable by either party to the United States district court, or court of appeals, as appropriate.” The language of the Treaty was intended to invoke the judicial power of the United States, that power possessed only by an Article III court. Id. With that power in mind, the Treaty in Article 3(b) specifies that “the Federal Rules of Appellate Procedure or Civil Procedure, as appropriate, shall govern the appeals process.” In short, the Treaty makes “a clean break from the ancient prohibition on direct appeals in extradition matters; - it unlocks the gate which has historically barred extradition matters from proceeding further through the federal courts in the same manner as other cases.” Id.
Although the panel in our case was aware of Howard and actually cited it, 61 F.3d at 713, it did not adopt its analysis. The panel acted as an Article II court reviewing the decision of an Article II court. This fundamental misconception tainted all its deliberations. The appropriate remedy for this mistake is vacation of the court’s judgment so that the court may address all the issues aware that it is performing the duties of an Article III tribunal.
In Howard, the government lost the argument for Article II standards and Article II jurisdiction and absence of appeal to an Article III court. It has the benefit of Howard now in taking this appeal. Not as a matter of estoppel, but as a matter of consistency and fairness, the government should accept Howard in its entirety and acknowledge error when the court of appeals conducts itself as a creation of Article II.
The court’s fundamental. misconception also distorted particular rulings of the court as set out more fully in what follows.
2. The Factfinding Appellate Court. As an Article II court, the panel believed itself liberated from precedent. Freed from this burden, the panel found itself empowered to do its own factfinding and free to disregard accepted practice as to the ascertainment of future facts.
Without referring to any standard of review the panel ignored some of the factual findings of the district court, set aside others and even occasionally supplied-its own facts. For example, the panel resolved the conflicting testimony as to conditions in the Maze and held (1) that the “strongest evidence of post-return politically motivated mistreatment” was “that the guards yelled racist and religious epithets while mistreating Smyth’s *1435fellow Maze escapees who were returned a decade ago.” Matter of Requested Extradition of Smyth, 61 F.3d at 722.
This example of appellate factfinding suffers from several defects. The guards did not yell “racist” epithets. “Racist epithets” is a phrase atavistically echoing the colonial past. Use of'the phrase suggests that the panel in its imaginative factfinding was out of touch with modern Belfast.
Race is not an issue in this case. Nationality is. The district court did not cite this evidence to show “politically motivated” misconduct but animus on religious and national identity grounds. The panel not only missed the point but conveniently separated the yelling of epithets from the physical attack accompanying them, so that the abuse appears merely verbal rather than integrated with, the infliction of bodily injury on the returned prisoners running a gauntlet of attacking guard dogs.
Having misstated Smyth’s evidence, the panel then weighed other testimony pointing to improvement in conditions at the Maze. Entirely omitted from this factfinding' was any reference to the district court’s expressed scepticism about the relevant United Kingdom testimony and any reference to the district court’s finding that the same guards who had staged the dog attack, left the prisoners’ wounds unattended, and engaged in a cover-up, had been unpunished and were a “continued presence” at the prison. In the Matter of the Requested Extradition of Smyth, 863 F.Supp. 1137 at 1163-1154 (N.D.Cal.1994). Without holding any of these findings to be clearly erroneous, the panel ignored them and made its own findings that there was not sufficient evidence that Smyth would be punished in the Maze on a forbidden ground. 61 F.3d at 722.
Besides misstating and ignoring facts found by the district court, the panel did not acknowledge (1) that inference from past conduct to future behavior is a common method of reasoning in our legal system and (2) that inference-drawing is a type of fact-finding, a process by which the presence of one fact leads to a probable estimate of a second fact. Instead, the panel spoke of the district court making an unwarranted “presumption” on the basis of the past misconduct. Id. at 720.
The Supreme Court has observed that prediction based on past experience is “performed countless times each day throughout the American system of criminal justice.” Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976). It is a task performed by triers of fact, such as juries. Id. When an appellate court decides to substitute its inferences for those reached by the trial court, it must have some basis for finding the trial court clearly erroneous and some basis for preferring its own findings. The panel did not say how the district court erred factually or why its own factfinding is superior.
The above observations apply to the panel’s treatment of the evidence showing that Smyth will be mistreated in prison on the grounds of religion, nationality and political opinions. They also apply to the panel’s treatment of the district court’s finding that Smyth would be subject to punishment by the security forces after his release from prison on the same grounds. The panel stated: “There was, however, little such evidence. Nearly all of the testimony of harassment of Republican ex-prisoners concerned conduct that occurred in the past.” 61 F.3d at 719. The panel then faulted the district court for relying on more general evidence of “discriminatory effects of the Diplock system upon Catholics and suspected Republican sympathizers.” Id. at 720.
In this effort at factfinding, the panel ignored the district court’s finding that Smyth’s probable persecution by the security forces after his release would be on the basis of his political opinions as well as on the basis of his nationality and religion. The panel again resolutely refused to use past experi-' ence as a predictor of future behavior.
The panel also made a harmful factual finding about Smyth, and that is that he is a member of the Irish Republican Army. Id. at 713. There are about 400 members of the IRA, In the Matter of ... Smyth, 863 F.Supp. at 1140. To be a member is a crime in the United Kingdom, Id. at 1142. Smyth has been neither convicted nor charged with *1436such membership. The district court explicitly refused to consider evidence tendered by the United Kingdom to establish Smyth’s membership. Id. at 1147. There is nothing in the record to support the panel’s finding of membership. The error was called to the panel’s attention by Smyth’s petition for rehearing. In response the panel has amended its opinion after the taking of the en banc vote. The amendment to 61 F.3d 711 at 713 changes the finding of fact as to Smyth to read: “The Provisional Irish Republican Army (IRA) of which Smyth reputedly is a member has publicly announced that the British Army and persons who work for the Army are targets.” In other words, the panel no longer identifies Smyth as a member of the IRA but as a person who is reputed to be a member of the IRA.
The initial finding of membership in the IRA was done parenthetically and casually with little thought to the probable consequences of the finding. The panel continues to show extraordinary insensitivity in finding Smyth possessed of reputation of membership in an organization that is not merely criminal in the United Kingdom but is regarded by many persons in that country with fear and loathing, so that the imputation of reputation is calculated to extinguish compassion and inflame hostility to a man so reputed.
The reputation of being a criminal is as much a fact as being a criminal. The panel amendment no longer goes to the extreme of convicting Smyth of a crime of which he has not even been charged in the United Kingdom. The panel still makes a factual determination that Smyth has the reputation of being a member of this organization that is criminal in the United Kingdom. Reputation is not an attribute in the air. When one is “reputedly” guilty of criminal conduct, it is always reputedly according to some person or group. The harm done by the panel’s baseless factual finding is intensified because the panel does not identify the source or sources from which it derives this fact. As the district court would permit no evidence on the point, the source or sources cannot be the record in the district court. The government on appeal to this court made a vigorous attack on the district court excluding evidence that might have established Smyth’s IRA membership. The panel did not hold that the district court had erred in its exclusion. What the panel has done is to accept the district court’s ruling and yet subvert the effect of the ruling by taking cognizance of the government’s objection to the ruling and importing into the panel’s own opinion some of the allegations that the government sought to support by evidence which the district court excluded. No precedent is cited for such treatment of a district court’s ruling on the exclusion of evidence on a point of major significance to Smyth on his return to prison. The panel as an Article II court did not believe that it had need of precedent for its novel action.
3. The Toothless District Court. Federal Rules of Civil Procedure 37 authorizes the district court to apply “appropriate sanctions” for failure to comply with the court’s discovery orders. We have held that appropriate sanctions may include dismissal of a case. Henry v. Gill Industries, Inc., 983 F.2d 943, 946 (9th Cir.1993).
On request for discovery by Smyth the district court ordered the United Kingdom to produce three governmental reports on grave misconduct, motivated by religious, national and political bias, by the security forces in Northern Ireland. One of the reports was the Stalker Report, notorious in Britain because its author, a high-ranking British police officer, himself became the object of police persecution after his report setting out such misconduct. The district court found Smyth’s need for the three reports to be strong and the United Kingdom’s declaration invoking privilege to be vague. The United Kingdom declined the court’s invitation to redact the reports to protect the identities of the security force members involved. The United Kingdom refused to produce the reports. In the Matter of ... Smyth, 863 F.Supp. 1137, at 1139. Accordingly, the district court created the two rebuttable presumptions shifting the burden of production and invoked those presumptions in addition to the other evidence to uphold one of Smyth’s contentions, that he would be *1437harmed by the security forces on the basis of being Catholic and Irish.
The panel denied the district court’s authority to impose this sanction. The panel stated:
In so doing, the district court improperly shifted the burden of proof from Smyth to the government in contravention of the treaty provision. See Supplementary Treaty, art. 3(a) (“extradition shall not occur if the person sought establishes ... by a preponderance of the evidence....”) 61 F.3d at 721.
The panel thus took the position that the Treaty prevents the district court from enforcing its orders by a shift in the burden of proof.
There is not a word in the Treaty that requires the district court to abandon its normal prerogative of enforcing its orders by such sanctions as are appropriate. The holding of the panel is a serious and entirely illegitimate restriction on the power of the district court to make litigants in an extradition proceeding conform to its orders. The Treaty was misinterpreted. More serious still, the Federal Rules of Civil Procedure were treated as inapplicable in the district court proceeding. Rule 37 was rendered null. The district court was improperly impeded in its functions. The Federal Rules of Civil Procedure could no longer work “to secure the just ... determination” of the action.
4. The Politically-Balancing Appellate Court. The panel further misinterpreted the Treaty. The panel held:
We reverse the district court because we hold that the record does not establish by a preponderance of the evidence that this extradition will lead to detention and punishment on account of Smyth’s race, religion, nationality, or political opinions rather than on account of his conviction for attempted murder. 61 F.3d at 713.
In so holding, the panel interpreted Article 3(a) to forbid extradition only if the extradi-tee’s probable punishment would be exclusively based on one of the four forbidden factors and not also on the crime of conviction. So -ruling, the panel eviscerated Article 3(a).
The Treaty makes extraditable those persons connected to major crimes of violence and then says in Article 3(a) that “extradition shall not occur” if the Article 3(a) defense is established. In every case the person invoking the Article 3(a) defense will be either convicted of, or charged with, one of the major crimes. There is no way that an extraditee can prove conclusively that the punishment he is likely to receive will be exclusively on account of one of the four forbidden factors. There will always be the likelihood that some members of the security forces will have the private motivation of seeking to punish him extralegally for the crime of conviction. • The possibility that such a private motivation for punishing Smyth may exist should not lessen the force of his proof that his punishment will be because he is perceived by the security forces as a Catholic, an Irish national, a Republican and a member of the Sinn Fein. The panel, however, sets aside all of the evidence found by the district court'to predict such discriminatory punishment and holds it insufficient so long as the punishment may also be for the attempted murder.
The punishments that the district court found probable were torture and death in prison and arbitrary stops, detentions and interrogations if he survived prison. In the Matter of ... Smyth, 863 F.Supp. at 1153, 1155. All of these punishments are extralegal; none of them is the prescribed punishment for Smyth’s crime. Yet because the panel believed that these extralegal punishments might be motivated by Smyth’s crime, the panel stripped him of his Article 3(a) defense. The result is an individual injustice and a startling precedent.
To reach this result the panel took upon itself a kind of political balancing appropriate for the Executive Branch and inappropriate for the Judicial Branch. The panel’s misconception of itself as an Article II court no doubt accounts for this exercise in political wisdom. The posture in which the panel has put the case actually serves to underscore the proper responsibilities in these proceedings of the Executive Branch. The United *1438Kingdom is not a party before this court. It is the United States, represented by the Department of Justice, that has interpreted the Treaty, sought Smyth’s extradition, and appealed Judge Caulfield’s order denying it. In making these significant decisions the Executive Branch has exercised discretion, a discretion not only affected by legal considerations but by political considerations. The Executive Branch has necessarily had its eye on relations between the United Kingdom and the United States. If, as appears likely, Smyth seeks a writ of certiorari from the Supreme Court of the United States, the Executive Branch must again exercise a discretion which is both legal and political in determining whether to defend the judgment of the panel or to concede error and accept the reasoned judgment of the district court.
I concur in Judge REINHARDT’S dissent, which explores in depth the failure of the panel to follow precedent, to uphold the sanctions imposed by the district court, and to interpret the Treaty as it is written.