Tough decision for Haig: what to do about West Bank citizen in US jail

Ultimately it is the US secretary of state who is expected to decide whether or not to grant Israel's request to extradite a 21-year- old West Bank resident who has spent the last two years in a Chicago jail.

In some ways the case mirrors all the tensions of the Middle East in microcosm, and no one suggests that the secretary's decision will be easy. Indeed, it is sure to set an important precedent whichever way it goes.

Ziad Abu Ein, who considers himself a citizen of Jordan, is wanted by Israel on charges of planting a bomb that killed two people in a crowded Tiberius marketplace two years ago. His attorneys have argued that the charge, made by an alleged accomplice then in Israeli custody, has since been withdrawn and that sworn statements from 11 other witnesses prove that he spent that day in another city miles away.

Following court decision that have consistently paved the way for an extradition order, defense attorney Ramsey Clark, former US attorney general, formally appealed the case July 10 to the US Supreme Court. That court, which has narrow jurisdiction in extradition cases, has not taken such a case since 1936. Few experts in international law think the justices will make an exception for Mr. Abu Ein's appeal. In any event, unless the court takes the case and reverses the lower court rulings (prospects considered highly unlikely) , the secretary of state, who can take into consideration a much broader range of issues than the court, must sign any extradition order.

Accordingly, intensive diplomatic efforts to convince the secretary of the importance of his decision have been under way for many months. In March, ambassadors and other leading officials from 17 Arab nations sent a long memo detailing their concerns to Secretary of State Alexander M. Haig Jr. They charged that Abu Ein's imprisonment without bail was discriminatory and strongly urged against any attempt to extradite him. Later, after a personal meeting with three of the emissaries, Deputy Secretary of State William P. Clark assured the Arab leaders in writing that "all aspects" of the case would be reviewed and that the State Department fully understands the "sensitivity and importance" the case has acquired in the Middle East.

A more direct appeal to the US government to release Abu Ein from jail on human- rights grounds was passed as a resolution in the United Nations Economic and Social Council in May. According to George Shamma of the Jordanian Mission to the UN, a similar resolution may well be taken up in the fall in the UN Special Political Committee.

Also, Abu Ein, whose defense committee supporters include an array of distinguished human-rights activists and whose imprisonment has sparked a number of demonstrations in this country and the Middle East, has been visited in jail by a steady stream of Arab leaders. They range from ambassadors to the expelled West Bank mayors of Halhoul and Hebron. His most recent visitor, last week, was Clovis Maksoud, the official UN observer of the League of Arab States. Chatting with reporters in front of the jail after his visit, Dr. Maksoud said he felt that if extradition were allowed, it would in effect signal recognition of Israeli legal authority over the occupied territories -- "it would bestow legitimacy on what is an illegal occupation . . . and allow the long arm of Israel to arrest anybody outside its own boundaries."

Abu Ein, who regards his diplomat visitors as support for his view that he is a political prisoner and "not a criminal," says he is convinced that he could not get a fair trial in Israel. He told this reporter that since his arrest both his father and brother have been arrested for brief periods by Israeli authorities and that a few weeks ago his 18-year-old sister, Giehad, was arrested and held in Jerusalem for 15 days. Though the charge against her was taking part in a demonstration, Abu Ein insists he had strongly warned his family not to get involved in any activities that would give the Israelis any excuse to make an arrest. He remains convinced that the real and only reason for her detention was her relationship to him. "It hurt me," he says. "The Israelis are trying to break my spirit."

What particularly nettles the West Bank resident and his supporters is the courts' consistent refusal so far to consider any evidence in the case other than the Israeli charge and the original confession against him. The courts by law must decide whether or not there is probable cause for the charge but avoid conducting a trial. Evidence explaining but not contradicting the charge may be introduced, and the courts have held that Abu Ein's counter evidence is contradictory.

Defense attorney Clark considers that interpretation a mistake.

"You don't present a full-blown defense. But ordinarily, alibi evidence and recantations -- particularly when the confession, as in this case, is very suspect -- would be considered because they go to the very reliability of the evidence itself," he says.

Many of Abu Ein supporters contend the court decisions so far have been essentially political. Most extradition treaties, including the one signed in 1962 with Israel, contain an exception for political offenses. In the past that exception has been broadly interpreted. Abu Ein's supporters say that the US government is focusing on his case as a test in the effort to narrow that definition.

The State Department, requested in an unusual move to testify in the hearings by the Department of Justice, has described the charge against the defendant as not political but a common crime. State Department sources concede that the stand, while consistent with the department's historic view on terrorism, may make it more difficult for the secretary of state to make an independent judgment later.

As for the fair trial issue, US authorities point out that an Israeli civilian court, which cannot issue the death sentence and which has clear, established rules of evidence, would be in charge. Murray Stein, associate director of the Justice Department's Office of International Affairs, says acceptance of the fairness of another country's judicial system is implicit in any extradition treaty. He says he knows of several instances where those extradited were found not guilty once trials on home soil were conducted.

Though Abu Ein might legally seek asylum as a last resort, most legal experts see it as unlikely to be granted if extradition is ordered.