(joined by WILLIAM H. TIMBERS, Circuit Judge), concurring in part and dissenting in part:
Since we have for too long defined the term “punishment” in an esoteric and metaphysical context applying epistemological distinctions, and because in the real world punishment is easily understood, and for the reason that the majority displays a disregard for the real meaning of punishment and slavishly follows jurisprudential dogma, I most respectfully dissent from that portion of the majority opinion which holds that the Supplementary Treaty does not constitute a Bill of Attainder.
The fate of McMullen is all but certain. He has two chances of avoiding extradition — slim and none.
The majority opinion cites to cases that preordain this matter. In all candor, they appear to be following the law as it might be reasonably interpreted today. In my judgment the time has come to expand the legal definition of punishment in order to bring it within the real meaning and common understanding shared by an enlightened late twentieth century society. I will attempt in this dissent to do so.1
I. The Bill of Attainder Provision Applies To Treaties.
As an initial matter I note that the Bill of Attainder provision is a limit on the Congress in Articlé I, not on the President in whom the' treaty-making power is vested in Article II. Article II, Section 2, as it relates to the President’s power to make treaties, is, however, a power conditioned upon the consent of the Senate. The Senate needless to say is a house of Congress. As *615part of Congress, the Senate is vested with certain authority and at the same time prohibited from the exercise of other powers. Among the limits on Congress, and hence the Senate, is the mandate of Article I, section 9, that “[n]o Bill of Attainder or ex post facto law shall be passed.” It therefore follows that enactments of the Senate in whatever form are subject to the judicial scrutiny for compatibility under the Bill of Attainder Clause. Any other interpretation would require a holding that treaties are not fully amenable to review under Article III, section 2. See Marbury v. Madison, 5 U.S. 137, 177-78, 1 Cranch 87, 111, 2 L.Ed. 60 (1803) (“It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act.”).
The Supreme Court has often noted that “[ljegislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” United States v. Brown, 381 U.S. 437, 448-49, 85 S.Ct. 1707, 1715, 14 L.Ed.2d 484 (1964) (emphasis added) (quoting United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252 (1946)). A treaty is submitted for Senate approval, and the process of Senate approval imbues this instrument with all the attributes of a legislative act under the broad definition enunciated in Brown and Lovett. Indeed, the Senate has the last word in the treaty making process. Amendments to a treaty can, and in this case were, proposed and voted on. The Senate’s rejection of Senator D’Amato’s proposed amendment, discussed in the majority opinion, whereby the Supplementary Treaty would apply retroactively except in those cases where extradition had already been sought and denied under the 1977 Treaty, is but one example of how the Senate placed its legislative stamp upon the treaty at issue here.
As Judge Timbers noted in the panel opinion, the Bill of Attainder clause in the Constitution was designed as one of the bulwarks maintaining the separation of powers inherent in our constitutional form of government. 953 F.2d at 765. This clause prevents the legislative exercise of judicial power by inflicting punishment without a judicial trial. United States v. Lovett, 328 U.S. at 315, 66 S.Ct. at 1079. Therefore, allowing one house of Congress to circumvent the Bill of Attainder provision through the treaty-making process would create a significant exception to this prohibition. As Justice Black noted, “[t]he prohibitions of the Constitution were designed to apply to all branches of the National Government.” Reid v. Covert, 354 U.S. 1, 16, 77 S.Ct. 1222, 1230, 1 L.Ed.2d 1148 (1957).
I must conclude, therefore, that the Supplementary Treaty with Great Britain is a “legislative act” subject to the full judicial power of the United States. This is also the conclusion of Louis Henkin, the preeminent constitutional scholar in the area. According to Henkin, “[t]he prohibitions set forth in Article 1, section 9, ... though contained in the article devoted principally to Congress and following immediately upon the catalogue of its powers, [must] doubtless be held to apply to treaties as well.” Louis Henkin, Foreign Affairs And The Constitution 140 (1972). As Henkin notes, a contrary holding would allow treaties to circumvent all the limitations contained in Article I, section 9. Thus, a treaty could grant a title of nobility, or lay a duty on articles exported from any State, or give preference to ports of one State over those of another. Id. In fact, the First Amendment on its face' only places limits on Congress. Consequently, if we held that the limitations contained in Article I, section 9 do not place limits on treaties, because they are addressed only to Congress, then by analogy this reasoning would seemingly allow a treaty to violate the First Amendment.
Therefore, I concur with the majority’s implicit assumption that a treaty can constitute a Bill of Attainder.
II. The Supplementary Treaty Is a Bill of Attainder.
A Bill of Attainder is defined as “a law that legislatively determines guilt and in*616flicts punishment upon an identifiable individual without the protections of a judicial trial.” Selective Service Sys. v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 3352, 82 L.Ed.2d 632 (1984) (citation omitted). Thus, to operate as a Bill of Attainder, a legislative act must satisfy three requirements: “specification of the affected persons, punishment, and lack of a judicial trial.” Id. at 841,104 S.Ct. at 3349. In conducting this test, the Supreme Court has cautioned courts to pay close attention to the facts of each case. See Selective Service Sys., 468 U.S. at 852, 104 S.Ct. at 3355 (“each [Bill of Attainder] case has turned on its own highly particularized context”) (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 1375, 4 L.Ed.2d 1435 (1960)). Judge Timbers’ fine opinion did just that, and I believe it should have been adhered to.
A. Specification.
It cannot be seriously contested that the Supplementary Treaty specified McMullen for punishment. Indeed, the majority opinion appears to concede this point. A legislative act may meet the specification requirement either by naming the individual or by focusing on easily identifiable members of a class. See Id. 468 U.S. at 841, 104 S.Ct. at 3349; Nixon v. Administrator of Gen. Services, 433 U.S. 425, 469, 97 S.Ct. 2777, 2803, 53 L.Ed.2d 867 (1977). As the panel observed, a review of the relevant legislative history clearly indicates that the legislation, particularly the changes to the “political offense exception,” was directed at a small group of former PIRA terrorists of which McMullen was a member.
The sponsor of the Supplementary Treaty, and Chairman of the Senate Foreign Relations Committee, Senator Lugar, noted during the congressional debate on the Treaty that in three recent cases, including McMullen’s, the federal courts have denied extradition of ex-PIRA members because their crimes fell within the 1977 Treaty’s “political offense exception.” See 953 F.2d at 765. The opinions in these cases were then placed in the Congressional Record. Thereafter, Senator Lugar explained that “it was because of these cases” that the Supplementary Treaty was signed. See 132 Cong.Rec. 16,586 (1986). According to Senator Lugar, the purpose of the Treaty was “to reverse the three cases where extradition was denied and put an end to this development in the law.” Id.
As the panel noted, additional evidence that the Treaty was intended to target specific individuals is found in the debate concerning Senator D’Amato’s proposed amendment regarding the retroactive application of the Treaty to the three named individuals. See 953 F.2d at 765. This proposed amendment sought to except from the retroactive application of the treaty those cases where extradition had already been sought and denied under the 1977 Treaty. See 132 Cong.Rec. at 16,594. This amendment would have exempted only three individuals from the purview of the Supplementary Treaty. In resisting this proposed amendment, Senator Lugar observed that “[t]he effect of this amendment would be to protect two individuals, who are admitted terrorists and who are not in the United States_” Id. at 16,595. Lu-gar then commented that it was “important to consider the specific individuals we are talking about....” Id. Consequently, the panel correctly concluded that McMullen is clearly within the group of people affected by the D’Amato amendment and targeted by Lugar’s comments. 953 F.2d at 765-66.
The Senate ultimately rejected the amendment. As the opinions of the district court and the panel observed, in so doing, the Senate endorsed Senator Lugar’s stated purpose for the Treaty, namely, to reverse the three cases where extradition was denied. As the panel concluded, despite the Treaty’s general applicability, and despite the fact that-it could lawfully operate retroactively, the stated purpose of the Treaty, as well as the rejection of the D’Amato amendment, together exhibit an intent to target a small group of individuals with this Treaty.
B. Punishment.
The second requirement of a Bill of Attainder is that it inflict punishment on a *617specific individual or group. Selective Service, 468 U.S. at 847, 104 S.Ct. at 3352. This is admittedly a much tougher issue.
For Bill of Attainder purposes, the severity of the sanction imposed by legislation is not determinative of its punitive character. Id. Moreover, the punishment inflicted need not be a penal sanction, but could include, for example, the loss of employment or inability to practice a profession. See e.g., United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). As the majority opinion describes, the concept of punishment for Bill of Attainder purposes has been broadened over time by the Supreme Court. After the Civil War the Court was faced with several statutory challenges which it held to be Bills of Attainder. For example, Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323, 18 L.Ed. 356 (1867) involved the conviction of a preacher who, after refusing to take an oath disclaiming sympathy to the Confederacy, was fined $500 and sentenced to jail. The Court held the statute banning clergymen from their positions if no oath was taken to be a Bill of Attainder, for it punished Cummings in its attempt to “[deprive] a person of the means of livelihood [and] ... rights, civil or political, previously enjoyed.” Id. The Court emphasized the absence of any link between the prohibition on preaching by clergymen and taking the oath. The purpose of the Act, the Court held, was to punish a specific group of people (clergymen) for prior acts of sympathy or allegiance to the Confederacy. Id.; see also Ex Parte Garland, 71 U.S. (4 Wall.) 333, 374-81, 18 L.Ed. 366 (1867) (striking down as a Bill of Attainder a federal statute requiring attorneys to take a similar oath before they were allowed to practice in federal court). The Court explicitly embraced this expansive trend of defining punishment in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) where it asserted that “the Bill of Attainder clause was not to be given a narrow historical reading, ... but was instead to be read in light of the evil the Framers had sought to bar: legislative 'punishment of any form or severity, of specifically designated persons or groups.” Id. at 447, 85 S.Ct. at 1714 (emphasis added).
While the majority takes note of the expanding definition of punishmént for Bill of Attainder purposes, it is unwilling to extend this concept to cover the facts of this case. I take issue with the majority’s assertion that because extradition is not a criminal prosecution or punishment, see e.g., Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976), it is- not punishment for Bill of Attainder purposes. Despite this initial determination, the majority nevertheless properly goes on to examine the three tests enunciated by the Supreme Court to evaluate the punitive character of legislation: historical, functional, and motivational. See Nixon, 433 U.S. at 475-78, 97 S.Ct. at 2806-08. However, unlike Judge Ward and Judge Timbers who each correctly applied all three of these tests, the majority opinion has misapplied the functional and motivational tests.
1. Historical.
The historical test asks whether the legislative act imposes any punishments traditionally associated with bills of attainder, such as execution, imprisonment, banishment, or confiscation of property. Id. at 473-75, 97 S.Ct. at 2805-06. Both Judge Timbers and Judge Ward correctly found this test was not satisfied because the Supplementary Treaty resulted in none of the enumerated historical punishments. See 953 F.2d at 766-67. Consequently, both the district court and the panel’s opinions analyzed the legislation under the other two tests.
2. Functional.
Under the functional test, a court must examine “whether the law under challenge, viewed in terms of type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes.” Nixon, 433 U.S. at 475-76, 97 S.Ct. at 2806-07. “Where such legitimate legislative purposes do not appear, it is reasonable to conclude that punishment of individ*618uals disadvantaged by the enactment was the purpose of the decisionmakers.” Id.
A crucial question to be posed in conducting this inquiry is whether a legislative act is merely a regulation which incidentally affects a plaintiff. Nixon, 433 U.S. 425, 476 n. 40, 97 S.Ct. at 2781, 2807 n. 40. In making this determination, courts have examined the type and severity of deprivation, along with the absence or presence of choice which the parties were left with under the statute. For example, in Selective Service the Court held that a statute denying financial aid to male students who had not registered for the draft was not a Bill of Attainder, in part, because students were left with a viable remedy by which they could obtain aid. 468 U.S. at 853-56, 104 S.Ct. at 3355-57. By contrast, in the present case the deprivations imposed on McMullen, in terms of his inability to invoke the “political offense” defense and the reversal of the prior finding of extradit-ability, are significant. Moreover, these deprivations leave McMullen few options to defend his case, making extradition to Britain an inevitable eventuality.
It also cannot be ignored that while awaiting trial McMullen will be incarcerated in a British prison system that is home to many members of the PIRA. The PIRA’s “Court of Inquiry” has already convicted McMullen and issued a sentence of death against him. Incarcerated members of the PIRA will surely not be squeamish about attempting to carry out this sentence. Even if no attempts are made on McMullen’s life, the mere possibility of such an attempt no doubt constitutes a form of retribution. It is of little moment that McMullen will suffer this penance in Britain. Whether the rock comes to the pitcher or the pitcher comes to the rock is irrelevant. The pitcher breaks in either case. Characterizing this result as something other than punishment would be purely metaphysical. That which we call a rose by any other name would have a thorn.
The Government nevertheless contends that the purpose of the Treaty was to facilitate Britain’s attempts to bring fugitive terrorists to justice and to preserve the American tradition of extradition if there is a judicial determination that the offense is political (under the narrower definition of the Supplementary Treaty). It argues that these goals are legitimate and nonpunitive, and are furthered by narrowing the political offense exception, applying it retroactively, and enhancing the court’s role in scrutinizing the motives of the requesting party.
The panel agreed .that these goals were legitimate and lawful, but also noted that a specific purpose of the Treaty was to reverse McMullen’s case. 953 F.2d at 767. Both the panel and the district court correctly focused their inquiry on the Senate’s desire to apply the Treaty retroactively even to those who had already successfully defended against extradition. Both courts correctly concluded that removing a defense previously asserted successfully by McMullen, thereby virtually assuring extradition, and by forcing McMullen to defend another proceeding, were burdens not necessary to further the Treaty’s nonpunitive goals.
The majority concludes that because the Treaty furthers legitimate nonpunitive goals, it passes muster under the functional test. Moreover, the majority finds that forcing McMullen to defend a second extradition proceeding is not a severe hardship, as it is well-established that the Government can bring successive extradition proceedings against the same individual in the event prior attempts prove unsuccessful. See e.g., United States v. Doherty, 786 F.2d 491, 495 (2d Cir.1986); Hooker v. Klein, 573 F.2d 1360, 1365-66 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978). However, not only must McMullen defend a second extradition, but he must do so without his only viable defense. This is an added burden that is not necessary to advance the Treaty’s nonpunitive goals. That is, aiding Britain in extraditing terrorists and deterring such individuals from seeking refuge in the United States can be accomplished without effectively reversing three cases that have already been decided in the defendants’ favor.
*619Therefore, I agree with the panel’s conclusion that in reversing these cases the Senate was acting punitively. See 953 F.2d at 767-68.
3. Motivational Test.
Any ambiguity in applying the functional test is resolved when the Treaty is evaluated under the’ motivational test. This test focuses on “whether the legislative record evinces a congressional intent to punish.” Nixon, 433 U.S. at 478, 97 S.Ct. at 2808. Moreover, “[i]n determining whether a legislature sought to inflict punishment on an individual, it is often useful to inquire into the existence of less burdensome alternatives by which the legislature could have achieved its legitimate non-punitive objectives.” Id. at 482, 97 S.Ct. at 2810. Under these standards, the panel correctly concluded that a motive to punish McMullen for past blameworthy conduct can be imputed to Congress. See 953 F.2d at 767-68.
The fact that, as the majority stresses, extradition is not itself criminal punishment, is not controlling. Rather, as the panel noted, the inquiry should focus on whether the legislation is directed at an individual because of blameworthy conduct. Id. Here, the congressional debate is replete with references to McMullen and to a desire to reverse his denial of extradition. Moreover, the refusal to adopt the D’Ama-to amendment, combined with Senator Lu-gar’s focus on particular individuals’ conduct, is also persuasive evidence of a desire to “punish” these .men for their conduct. In addition, as noted above, exempting McMullen and the other two individuals from the retroactive application of the Treaty would not seem to undermine the overall non-punitive Treaty goals.
Therefore, the panel was correct in concluding that under both the motivational and functional tests, the Supplementary Treaty inflicts punishment on McMullen.
C. Judicial Trial.
A Bill of Attainder must also inflict punishment on an individual without the benefit of a judicial trial. McMullen’s punishment was inflicted by the passage of the Treaty, i.e., the Treaty sought to reverse the denial of his extradition by removing his only plausible defense. That the Treaty is designed to assure his extradition is demonstrated by Senator Lugar’s comment that “had the Supplementary Treaty been in effect [in each of the cases where extradition had been denied based on the political offense exception], the political offense would, without question, have been decided against the defendant.” See 132 Cong.Kec. at 16,587. Given that one of the purposes of the Treaty was to reverse McMullen’s case, the panel correctly concluded that the Senate did not believe that the enhanced judicial role under the Treaty would afford any concrete protections to McMullen.
The Supplementary Treaty is therefore a Bill of Attainder. Accordingly, I would affirm the judgment of the district court in its entirety by reinstating the panel opinion.
. A complete statement of the relevant facts and claims of the parties is set forth in the opinion of the three-judge panel that initially heard this appeal more than 15 months ago — on December 3, 1991. McMullen v. United States, 953 F.2d 761 (2d Cir.1992). McMullen has been held without bail for more than 6 years — since December 24, 1986. See Id. at 763.