(dissenting).
Just as certain rights — those of freedom of speech, press, assembly, religion, etc.— have been said to stand in a “preferred position” under our Constitution, so also would I include within that group the right of tlie individual to be free from cruel and unusual punishment and to be tried for a crime of which he is accused. The latter is to the individual what the former is to the body politic and both must be the object of zealous concern if our concept of liberty is to be preserved. Accordingly, I am unable to agree that this court is barred from inquiring into charges as grave as those made by petitioner here. In expressing this dissent, I am well aware of the factors of history, policy and precedent underlying the position of the majority. But I have been cited to no controlling authority in which this particular question — viz., the availability of extradiction where there has been cruel and unusual punishment or the denial of a right to trial — has been decided.
*685The obvious importance of the federal system, and the desire to facilitate its workings, should not obscure the fact that action in pursuance of one constitutional power may run afoul of another. Unless the Constitution is read as a whole, there is grave danger that the extradition process will be executed in unduly mechanistic fashion and in complete disregard of the fundamental considerations of humanity and decency which are reflected in the Bill of Rights. Certainly, the interest of the various governments of our federal system in the orderly workings of the extradition machinery is a factor of moment. And in such interest, it may ordinarily be desirable to limit the inquiry on habeas corpus to the three or four traditional questions posed in such cases. But where one constitutional purpose must be weighed against another —one promoting efficiency and comity between states, the other protecting fundamental rights of the individual against state infringement — our system of government will be better served by assessing greater weight to the latter. Serious doubt concerning the effectiveness of future guarantees of such fundamental rights ■ought not to be resolved by speculation or presumption that somehow, somewhere, but not here, some court will be able to prevent a repetition of past abuses.
Petitioner’s allegations below are that he has been subjected to cruel and unusual punishment and that he has been imprisoned for ten months without being brought to trial. For the purpose of this appeal, we are bound to accept these grave allegations as true. Yet, under the majority view, they may not be considered, regardless of the content petitioner may be able to give to them. Even if petitioner can prove, in a hearing on the merits under these allegations, that he will never get to trial in Georgia, or that he will not get access to any court in that state because of the cruel and unusual punishment which may cause his death before that time, his release could not be secured on habeas corpus.
This court rests its conclusion in large part on the availability of the Georgia state courts and of the Georgia federal courts to protect petitioner. It thus raises what is merely a presumption — that the law will follow its ordinary course and that officials will act properly — to the level of a conclusive rule of law. It should be clearly understood that I make no assumption that state or federal courts in Georgia will he unavailable. It is the majority which makes their availability an absolute and bars any attempt on the part of petitioner to show the extent of their unavailability. I would treat the regularity of official action as a rebuttable presumption to be tested in .the light of facts, rather than by speculation within the bare frame of pleadings. This view does not entail disrespect for the Georgia state or federal courts, nor any doubt as to their capability, integrity or faithfulness to the Constitution and its Bill of Rights. In fact, it makes the majority’s reference to such considerations completely irrelevant. It does, however, take account of the notorious facts concerning recurrent penal practices in many of our states, not alone Georgia. It considers the very real possibility that those courts may never have the opportunity to safeguard rights such as those involved here, that the harm may be done before the judicial process can even be brought into play.
I think we should follow the lead of the Third Circuit in Johnson v. Dye, 3 Cir., 1949, 175 F.2d 250,1 at least to the extent that it is based on the premise that allega*686tions such as those involved here may be heard on the merits. In that case, petitioner, who had been convicted of murder in Georgia, sought to resist by way of habeas corpus an extradition warrant issued against him in Pennsylvania. He alleged cruel and unusual punishment inflicted on him in a Georgia chain gang and was permitted to argue on the merits. The court, sitting en banc, ordered his release, saying: “ * * * the right to be free from cruel and unusual punishment at the hands of a State is as ‘basic’ and ‘fundamental’ a one as the right of freedom of speech or freedom of religion” [175 F.2d at page 255] and hence was included within the scope of the liberty guaranteed by the Fourteenth Amendment. “The obligation of a State to treat its convicts with decency and humanity is an absolute one and a federal court will not overlook a breach of that duty” [Id., 175 F.2d at page 256]. I disagree with the opinion of the majority in that case, however, to the extent that it makes the fact of past infringement alone the basis of release on a petition for habeas corpus in extradition cases. Instead, I would follow the rationale suggested by Judge O’Connell who concurred in part and dissented in part. He felt that the court “need not, and should not, declare that the drastic remedy [release of petitioner] here announced is one which will lie whenever there has been, in the past, an infliction of cruel and unusual punishment. I deem it sufficient that we invoke our power to release an individual who not only has suffered cruel and unusual punishment but also faces grave and imminent damger of like abuse and very possibly even death by extralegal means, if he is returned to Georgia. If * * * this court must choose between past and prospective violation of a basic constitutional right as the ground for release of an individual, I should prefer to place reliance upon the latter [Id. 175 F.2d at pages 258-259], * * * The logic of invoking the judicial power to eliminate a threatened invasion of a basic constitutional right seems to me irresistible * * *. Could this penalty be served [in Georgia], with observance of those constitutional rights which prisoners retain, * * * I think it would be both unwise and improper for this court to restrain Pennsylvania from honoring a request by Georgia for his extradition” Id-175 F.2d at page 259. Emphasis supplied.
I would remand the case to the District Court for a hearing on the merits, the objective being to ascertain whether Johnson, has suffered the alleged infringements and “would be reasonably likely to undergo-similar abuse if he were returned to Georgia” [Id. 175 F.2d at page 259], It may well be that petitioner will be unable to-prove his allegations or to show such facts as would result in his securing relief. His burden of proof would undoubtedly be great. We might be unwilling to accept the sort of proof relied upon by the Third Circuit and referred to by the majority here. But I cannot bring myself to concur in a view which forecloses all opportunity of showing the extent to which basic rights, have been infringed. Unless such an opportunity is afforded petitioner, there can be no accurate assessment of competing constitutional considerations.
It is regrettably true that my view, as the majority quotes from Judge O’Connell’s opinion in the Dye case, “[might] turn *687loose a convicted murderer.” 2 Nevertheless, I am in thoroughgoing agreement with Judge O’Connell’s further statement: “ * * * better it be that a potentially dangerous individual be set free than that the least degree of impairment of an individual’s basic constitutional rights be permitted” [Id. 175 F.2d at pages 257-258].
. Reversed per curiam by the Supreme Court in 1949, 338 U.S. 864, 70 S.Ct. 146, citing only Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 U.Ed. 572. That case decided that all remedies in the state of detention must be exhausted by one held in the custody of that state before he could petition for habeas corpus in the federal courts. The state there was Nebraska and the attempt was made to get into the federal courts before all Nehraska remedies had been exhausted. The very same question was involved in Johnson v. Dye. There, too, the petitioner in the United States District Court in Pennsylvania had not exhausted his state remedies — i. e., he had not appealed from the decision of Pennsylvania’s Court of Common Pleas, affirmed by the Superior Court, to the state Supreme Court. It was because of this very similarity of issues that the Third Circuit devoted a *686substantial portion of its opinion to an attempt to carve out an exception to the rule of exhaustion of state remedies in habeas corpus. It was .this argument which the Supreme Court rejected by its cursory reference to Ex parte Hawk. The Hawk case had nothing to do with extradition. It did not involve the question of remedies in a foreign jurisdiction. To read into a per curiam reversal which is so clearly procedural in origin a repudiation of the substantive decision of the Third Circuit is to depart far indeed from the Supreme Court’s obvious meaning. It is as if this court were held to have tested the merits of allegations which it refuses to consider because of a failure to exhaust administrative remedies.
The doctrine of exhaustion of state remedies in habeas corpus, designed to prevent premature abandonment of state remedies in search of federal relief, is of course inapplicable here in the District of Columbia.
. In the present case, of course, petitioner was accused of robbery and had not yet come to trial.