Wilmer Yarleque Ordinola v. John Hackman, Acting United States Marshal for the Eastern District of Virginia

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 Government 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 association. 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 petition 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.

In the late 1960s, Abimael Guzman, a Peruvian philosophy professor and leader of a faction of Peru's Communist Party, founded the 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 government 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 Hemisphere." (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, Fujimori and Montesinos provided the military with vast power and resources to fight the Shining Path,1 responding to the group's insurgency 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 persistent record of indiscriminate action against rural populations" stemming 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 Subcomm. on Western Hemisphere Affairs of the H. Comm. on Foreign Affairs, 102d Cong. 19, 21 (1992) (statement of Gordon H. McCormick, senior social scientist, RAND Corp.)).)

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.

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.

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 neighborhood 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 dormitories 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 professor 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 Homicide, 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 summoned leaders of the Colina Group to a meeting with Jorge Fung Pineda, a private property owner who had friends in the Peruvian military. 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 bicycle and the other eight from their homes. Ordinola and the other agents killed all nine people and buried them at a nearby farm. Before 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 subversive 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 Bustamante. Bustamante refused to answer Rivas's questions because he knew they were going to kill him anyway. The group forced Bustamante 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.

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 Diplomatic 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 extradition 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 committed the crimes against noncombatant civilians and engaged in acts that violated the laws of armed conflict and international standards 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 corpus in the Eastern District of Virginia, alleging that he was being held in violation of the Extradition Treaty. On November 21, 2005, the district 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).

The political offense exception to extradition forbids countries from extraditing people who are accused of offenses that are "political" in nature. Like the vast majority of modern-day extradition treaties, 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 treaties 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 country's extradition treaties for well over a century, this Circuit has never 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 process 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 diplomatic history"—was entered into by the Egyptians and Hittites circa 1280 B.C. Id. at 32. The political offense exception to extradition, however, is a far more recent development, tracing its beginnings 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 Declaration 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 entering 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 former. 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.

Letter from Thomas Jefferson to William Carmichael and William Short (Apr. 24, 1792), in 6 The Works of Thomas Jefferson (Correspondence 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 oppressors 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 discussion, 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 sufficiently 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.

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 suspect is extraditable, it must then certify the question to the Secretary 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, 16 S.Ct. 689, 40 L.Ed. 787 (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 ordinary law were exempt from extradition because of the political intention of those who committed them." Id. at 511, 16 S.Ct. 689 (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 presented would have "compelled" a reasonable factfinder to conclude otherwise. See, e.g., I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Ornelas's standard of review also meshes nicely with the language of § 3184, which instructs the factfinder to sustain the charge under the provisions of the treaty if "he deems the evidence sufficient." 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 mostly of fact. Ornelas, 161 U.S. at 509, 16 S.Ct. 689. 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, 16 S.Ct. 689.

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 incident 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 purporting 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 Government.

There is no direct appeal for an individual found to be extraditable by a magistrate. See Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 64 L.Ed. 616 (1920). Rather, a writ of habeas corpus is the only available means to challenge 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, 45 S.Ct. 541, 69 L.Ed. 970 (1925). The magistrate's decision therefore "cannot be reviewed on the weight of the evidence." Ornelas, 161 U.S. at 509, 16 S.Ct. 689. "[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, 45 S.Ct. 541. 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 reviewing de novo the entirety of the magistrate judge's decision and affording his factual findings no deference. For one of many examples, the district court's finding that "Ordinola did not knowingly murder innocent 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 members 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 magistrate has already decided." Fernandez, 268 U.S. at 312, 45 S.Ct. 541. 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 substantial deference to the magistrate judge's factual findings. See, e.g., Quinn, 783 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 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 initial 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 misinterpret those findings in an effort to reach a desired legal conclusion.

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 magistrate 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 Peruvian 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 territory 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, 16 S.Ct. 689.

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. Accordingly, we must slightly alter the question and instead ask whether Ordinola's actions were incident to or in furtherance of quelling 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 regarding 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 parties in the State as to which is to have the government in its hands." (emphasis added)); Ornelas, 161 U.S. at 511, 16 S.Ct. 689 (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 necessary, but not sufficient, for the claimant to show that he was politically motivated. In other words, a claimant whose common crime was not subjectively politically motivated cannot come within the exception regardless of whether the offense itself could be described as an objectively "political" one.13

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 political offenses, and a political motivation does not turn every illegal action into a political offense. The Treaty, then, cannot be read to protect 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 motivated. 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 victims, 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, 16 S.Ct. 689. In a similar procedural posture to this case, the magistrate determined that the acts were not of a political character, but the district court disagreed on habeas review. In reviewing the Government'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, 16 S.Ct. 689. In answering that question in the negative, the 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, 16 S.Ct. 689.

In examining the Colina Group's modes of attack, the magistrate judge noted that Ordinola was being charged for his role in killing fifteen 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 perturbed 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, 16 S.Ct. 689. 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 connections 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 targeted not because they were terrorists, but "because their boss wanted 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 victims were not active members of the Shining Path, see Ornelas, 161 U.S. at 512, 16 S.Ct. 689 ("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 Bes