Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances

Washington and Lee Law Review, Aug 2018

Kristin E. Slawter

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Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances

Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances Kristin E. Slawter 0 1 0 Thi s Note is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 1 Kristin E. Slawter, Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances , 70 Wash. & Lee L. Rev. 2487, 2013 Part of the Immigration Law Commons; International Law Commons; and the Jurisdiction Commons - Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances Kristin E. Slawter∗ I. Introduction ...................................................................2488 ∗ Candidate for J.D., Washington and Lee University School of Law, May 2014; B.A., The College of William & Mary, May 2009. I would like to thank Professor Steve Vladeck for helping this Note through its formative stages, Professor Joan Shaughnessy and the Washington and Lee Law Review Editorial Board for their invaluable editing, and my friends and family for their support during the entire process. I. Introduction Each year, the U.S. government decides whether to transfer individuals from the United States to foreign countries in connection with deportation proceedings, detainee releases, and extradition requests.1 Individuals facing transfer may bring a statutory claim against the U.S. government in federal court to bar their transfer on the grounds that it is more likely than not that they will be tortured in the recipient country. To challenge their pending involuntary transfer,2 they rely on U.S. treaty obligations under the 1984 United Nations Convention Against 1. See Steve Vladeck, Why the “Munaf Sequels” Matter: A Primer on FARRA, REAL ID, and the Role of the Courts in Transfer/Extradition Cases, LAWFARE (June 12, 2012, 9:00 AM), http://www.lawfareblog.com/2012/06/whythe-munaf-sequels-matter/ (last visited Mar. 7, 2013) (discussing forms of transfer) (on file with the Washington and Lee Law Review). 2. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956–57 (9th Cir. 2012) (per curiam) (detailing Garcia’s challenge to his extradition to the Philippines alleging it would violate his statutory rights); Omar v. McHugh (Omar II), 646 F.3d 13, 17–18 (D.C. Cir. 2011) (explaining Omar’s claim that a statute grants him a right to judicial review of the conditions in the receiving country—Iraq— prior to his transfer from U.S. military custody to Iraqi authority); Mironescu v. Costner, 480 F.3d 664, 667 (4th Cir. 2007) (discussing Mironescu’s petition for habeas corpus—claiming that his extradition to Romania would violate his statutory rights). Torture (CAT),3 incorporated into U.S. law by the Foreign Affairs Reform and Restructur ing Act of 1998 (FARRA).4 CAT and FARRA proscribe the transfer of a person if “there are substantial grounds for believing the person would be in danger of being subjected to torture upon return.”5 Ideally, fact-specific decisions in these cases depend on the context in which a person raises a FARRA claim: either in connection with post-9/11 detention at Guantanamo Bay, normal extradition of individuals wanted by another country for criminal prosecution, or to serve a postconviction sentence.6 With respect to the first category, Guantanamo detainees require a recipient country in which to resettle7 after successfully challenging their detention.8 Facing the threat of torture in many of their home or proposed recipient countries, these individuals look to FARRA to stop their transfer to a country in which they believe they face a substantial likelihood of being tortured.9 These FARRA claims, however, transcend the unique context of Guantanamo Bay military detention cases. Individuals facing ordinary extradition seek to raise claims of torture as well.10 3. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1988 U.S.T. 202, 1465 U.N.T.S. 85 [hereinafter CAT]. CAT was adopted by unanimous agreement of the U.N. General Assembly, was signed on April 18, 1988, and entered into force as to the United States on November 20, 1994. While the United States signed and ratified CAT, it was deemed nonself-executing. See 136 CONG. REC. 36,198 (1990) (detailing the nature of CAT). 5. 8 U.S.C. § 1231 note. 6. See supra note 2 (discussing the different contexts of FARRA claims). 7. See Samuel Chow, The Kiyemba Paradox: Creating a Judicial Framework to Eradicate Indefinite, Unlawful Executive Detentions, 19 CARDOZO J. INT’L & COMP. L. 775, 776 (2011) (discussing the difficulty in actual release of Guantanamo Bay detainees). 8. See Exec. Order No. 13,492, 3 C.F.R. 13492 (Jan. 22, 2009) (explaining the challenges the executive faced in considering detainee release options). 9. See Munaf v. Geren, 553 U.S. 674, 692 (2008) (discussing petitioners’ claims that if they were surrendered to Iraqi custody they would likely face torture, and thus international law forbids their transfer). 10. See Stephen I. Vladeck, Normalizing Guantanamo, 48 AM. CRIM. L. REV. 1547, 1549–50 (2011) (discussing how the U.S. District Court for the District of Columbia’s holding in a non-Guantanamo, military detention case may affect congressional constraints on the scope of federal habeas review in Under FARRA, individuals facing extradition may challenge their extradition by petitioning a U.S. court through the writ of habeas corpus.11 The United States Court of Appeals for the Ninth Circuit heard one such case, Trinidad y Garcia v. Thomas,12 in 2012. Garcia involved a man wanted by the Philippines to face kidnapping conspiracy charges.13 Facing imminent transfer, the man filed a habeas petition to challenge his extradition under FARRA, claiming he faced a likelihood of torture in the Philippines.14 The Ninth Circuit established jurisdiction to hear Trinidad’s claim based on the conclusion that federal courts have habeas jurisdiction to hear extradition challenge requests under FARRA, and held that a court’s inquiry ends once the Secretary of State determines that torture is not “more likely than not.”15 Despite the intended sui generis nature of the Guantanamo Bay detainee transfer challenges, the Ninth Circuit referred to those situations for guidance16 and deemed courts unable to contradict Executive Branch foreign policy decisions.17 other nonrelated cases) . 11. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956–57 (9th Cir. 2012) (per curiam) (detailing Trinidad’s claims of torture if extradited to the Philippines); Khouzam v. Attorney Gen. of the U.S. (Khouzam II), 549 F.3d 235, 239 (3d Cir. 2008) (detailing Khouzam’s claims of torture if removed to Egypt); Mironescu v. Costner, 480 F.3d 664, 667 (4th Cir. 2007) (detailing Mironescu’s claims of torture if extradited to Romania). 12. 683 F.3d 952 (9th Cir. 2012) . 13. Id. at 956. 14. See id. at 963 Trinidad raises two distinct rationales for why he may not be extradited. First, he contends that he may “invoke the writ to challenge the Secretary's decision to surrender him in violation of his substantive due process right to be free from torture” at the hands of a foreign government. . . . Alternatively, he asserts that . . . he possesses a statutory right under the Convention and the FARR Act that precludes the United States from extraditing him to a country where torture is “more likely than not” to occur. 15. Id. at 956–57. 16. See Vladeck, supra note 10, at 1549 (discussing how the reasoning in Omar II, and by proxy Garcia, is divorced from what was supposed to be the sui generis nature of post-9/11 terrorism cases). 17. See Munaf v. Geren, 553 U.S. 674, 702 (2008) (“The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area.”); Boumediene v. As this Note will explain, the Garcia decision is significant for two reasons. First, it suggests that the law governing ordinary extraditions will continue to matter long after the last detainee is released from Guantanamo Bay.18 Courts disagree as to whether they have jurisdiction to hear ordinary extradition cases raising claims of torture.19 Those courts that have granted jurisdiction have failed to provide the type of substantive review that a historical analysis of the development of habeas corpus law suggests courts should undertake in these ordinary extradition cases.20 Whether federal courts have habeas jurisdiction to hear non-Guantanamo extraditees’ FARRA claims has significant ramifications with regard to the rights of these individuals under United States law.21 And second, while FARRA applies to both Guantanamo Bay detainee release cases and ordinary extradition cases, the contexts are sufficiently dissimilar that the former should not inform the latter.22 This Note will instead propose a rule of limited inquiry that will differentiate between Guantanamo-specific decisions and conventional extradition cases. Such a rule would ensure that extraditees have sufficient opportunity to challenge their extradition, and guarantee that the United States upholds its obligations under CAT and the U.S. Constitution.23 This Note addresses two main issues raised by extraditee transfer challenges based on FARRA: (1) whether the Ninth Circuit’s holding in Garcia—holding that extraditees have Bush, 553 U.S. 723, 783 (2008) (“The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”); Vladeck, supra note 10, at 1547–48 (discussing the “seepage” of doctrine from terrorism cases, notably Boumediene and Munaf, into “more conventional bodies of jurisprudence”). 18. See Vladeck, supra note 1 (discussing the importance of this jurisprudence). 19. See infra note 25 (discussing the circuit split over federal habeas jurisdiction). 20. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (per curiam) (explaining that, while the court has jurisdiction to hear a transferee’s claim, once the Secretary of State files a declaration that it is not more likely than not that torture will occur, the court’s review comes to an end). 21. See Vladeck, supra note 1 (explaining the effects of jurisdiction on detainee and extraditee rights). 22. See id. (explaining the differences between these contexts). 23. See infra Part VI (discussing the details of a rule of limited inquiry). jurisdiction to challenge their transfers under CAT/FARRA,24 creating a circuit split25—was correct; and (2) whether, despite potential bars to such attempts—including judicial precedent,26 the doctrine of separation of powers, and the judicially created rule of noninquiry27—extraditees may attempt to rebut government assurances that torture will not occur upon extradition.28 Part II of this Note reviews the legal provisions that establish the foundation for today’s extradition cases.29 This Part examines the historical roots of the writ of habeas corpus and the Suspension Clause30 before evaluating the statutory bases for 24. See Garcia, 683 F.3d at 956–57 (holding that the district court did have jurisdiction over the action because neither the FARRA nor the REAL ID Act repealed federal habeas jurisdiction over Trinidad’s claims, and remanding so the Secretary of State could comply with her obligations in making a determination regarding the likelihood of torture). This case will be discussed in detail infra Part III.B. 25. See Garcia, 683 F.3d at 1013 (Kozinski, C.J., dissenting in part) (explaining that the majority decision of the Ninth Circuit creates a circuit split as to the federal courts’ jurisdiction to hear habeas petitions from individuals in U.S. custody hoping to challenge their transfer/extradition to a foreign sovereign, claiming it is more likely than not that they will be tortured). A circuit split has now emerged between the Ninth Circuit, and the D.C. and the Fourth Circuits. The D.C. Circuit held in Omar v. McHugh (Omar II), 646 F.3d 13, 17 (D.C. Cir. 2011), and the Fourth Circuit held in Mironescu v. Costner, 480 F.3d 664, 674 (4th Cir. 2007) , that the REAL ID Act of 2005 divested federal courts of jurisdiction in such cases. The REAL ID Act of 2005 was enacted to streamline judicial review in immigration cases and currently provides that “a [habeas] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the [CAT] and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment . . . .” REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310–11 (codified at 8 U.S.C. § 1252(a)(4) (2012)). 26. See infra Part V.A (discussing whether the relevant case law supports detainee challenges of transfer and the scope of review provided to such claims). 27. See infra Part V.B (discussing whether the separation of powers doctrine or the rule of noninquiry bars judicial review). 28. See Lopez-Smith v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997) (“[U]nder what is called the rule of non-inquiry in extradition law, courts in this country refrain from examining the penal systems of requesting nations, leaving to the Secretary of State determinations of whether the defendant is likely to be treated humanely.” (quotations omitted)). 29. See infra Part II (discussing CAT, FARRA, and the REAL ID Act). 30. U.S. CONST. art. I, § 9, cl. 2. See infra Part II.A (discussing the history of habeas corpus and its interactions with the Constitution). detainee extradition challenges including FARRA and the REAL ID Act.31 Part III analyzes relevant case law, including the Ninth Circuit’s decision in Garcia and the 2008 Supreme Court decisions32 in Boumediene v. Bush33 and Munaf v. Geren.34 Part IV argues that Garcia correctly determined that federal courts have jurisdiction over challenges to extradition based on FARRA,35 while Part V argues that federal courts have a constitutional basis—and responsibility—to provide substantive review in considering detainee FARRA claims.36 Part VI proposes a rule of limited review that courts could employ in the future to address these challenges in a manner consistent with the concept of meaningful review.37 In closing, Part VII defends the proposed rule, providing a basis for future debate in this expanding field and bridging the gap between constitutional and human rights law.38 II. Habeas Corpus and the Domestic Statutory Bases for Detainee Challenges The writ of habeas corpus provides the primary constitutional basis by which detainees in U.S. custody may challenge their impending transfer to a foreign country.39 FARRA forms the statutory basis for such challenges when transferees allege they face a substantial likelihood of torture in the country to which they are to be transferred.40 An analysis of the bases for detainee transfer challenges follows and forms the foundation for this Note’s subsequent arguments. A. The Historical Roots of Habeas Since its introduction in English common law in the mid1600s, habeas corpus provided detainees a remedy to challenge their detention in court in order to protect the individual’s right41 to be free from bodily restraint.42 At its inception, courts in feudal England used this remedy “principally as a means to enforce allocations of authority between and among the various power centers,”43 establishing whether the court possessed jurisdiction to hear such claims.44 The scope of judicial review 41. See 28 U.S.C. § 2241(c)(3) (2012) (making the writ of habeas corpus available to all persons “in custody in violation of the Constitution or laws or treaties of the United States”); Boumediene v. Bush, 553 U.S. 723, 771 (2008) (holding that Guantanamo detainees possess constitutional habeas corpus rights); INS v. St. Cyr, 533 U.S. 289, 301–03 (2001) (discussing the history of habeas corpus); Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (per curiam) (reviewing habeas’s history as a remedy allowing challenges to detention); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 522–23 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment and dissenting in part) (“Since at least the seventeenth century, the Great Writ has prohibited the transfer of prisoners to places beyond the [Supreme Court’s] reach where they would be subject to continued detention on behalf of the government.”) quickly expanded from the mid-1600s onward, as the writ of habeas corpus became a tool of expansive use,45 including as a means to protect individual liberty from claims of unlawful transfer.46 Through the writ’s derivation from British royal privilege, the King’s Bench commonly issued writs that lacked a basis in established precedent.47 Lord Chief Justice Mansfield issued a wide variety of writs during this period to prevent individuals from being unlawfully removed from England.48 This royal prerogative gave the writ of habeas corpus its immense and varied power,49 granting the release of an African slave, commanding the discharge of seamen exempt from impressments into the British Navy, and helping to free asylum inmates and apprentices.50 The British people saw the writ as so important that when the King’s Bench suspended the writ by royal order in the late 1600s, it inflamed the people, leading to the passage of the Habeas Corpus Act of 1679 to solidify the writ’s availability and enshrine its importance as a check on government power.51 Further, by the eighteenth century, English habeas courts heard statutory claims that a prisoner’s detention was unlawful, expanding the bases of a prisoner’s claims to the Magna Carta, Parliament’s newest innovation.52 administrative findings of fact” is not present in extradition). 45. See Boumediene v. Bush, 553 U.S. 723, 740–44 (2008) (explaining the expansion of habeas corpus). 46. See id. at 725 (discussing the history of the writ of habeas corpus and corresponding judicial review); ALLEN ET AL., supra note 43, at 868–69 (discussing habeas’s uses). 47. ALLEN ET AL., supra note 43, at 868–69. 48. See Stephen I. Vladeck, The New Habeas Revisionism, 124 HARV. L. REV. 941, 975 (2011) (reviewing PAUL D. HALLIDAY, HABEAS CORPUS: FROM ENGL AND TO EMPIRE (2010 )). 49. See Boumediene, 553 U.S. at 743 (discussing the source of habeas’s power). 50. See I.N.S. v. St. Cyr, 533 U.S. 289, 303 (2001) (citing examples of habeas’s success in freeing detained individuals in a variety of situations). 51. See Boumediene v. Bush, 553 U.S. 723, 743 (2008) (discussing the British view of the writ of habeas corpus and the passage of the Habeas Corpus Act of 1679). 52. See Omar v. McHugh (Omar II), 646 F.3d 13, 27 (D.C. Cir. 2011) (citing a variety of old English sources for the proposition that English habeas courts The framers of the new U.S. nation’s constitution continued to protect and expand the power of habeas corpus after the United States won independence from England in the late 1700s.53 The Constitution’s Article I Suspension Clause54 provides that the writ of habeas corpus “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,”55 thus exemplifying the framers’ view that the writ existed as a “vital instrument for the protection of individual liberty”—freedom against government power.56 The history of the Great Writ’s purpose in checking power in England was well known to the framers: It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of government power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make government accountable, but also to secure individual liberty.57 But a more comprehensive analysis of the scope of the Suspension Clause “begin[s] with precedents as of 1789” because, as the Supreme Court emphasized, “‘at the absolute minimum,’ the [Suspension] Clause protects the writ as it existed when the Constitution was drafted and ratified.”58 In 1789, the writ of habeas corpus allowed individuals to challenge their government-ordered detention or their transfer beyond the habeas court’s jurisdiction.59 As a resolution during the New York Ratifying Convention made clear, the Suspension heard statutory-based claims of unlawful detention). 53. See Boumediene, 553 U.S. at 743–45 (discussing the use of habeas in 1700s America). 54. U.S. CONST. art. I, § 9, cl. 2. 55. Id. 56. Boumediene v. Bush, 553 U.S. 723, 743 (2008). 57. Id. at 742. 58. See id. at 746 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001)). 59. Brief of Legal Historians and Habeas Corpus Experts as Amici Curiae in Support of Petitioner at 3, Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (per curiam) (No. 12-6615), http://www.lawfareblog.com/wpcontent/uploads/2012/11/Trinidad-y-Garcia-Cert-Amicus.pdf [hereinafter Brief of Legal Historians]. Clause was intended “not only [to] protect[] against arbitrary suspensions of the writ but also [to] guarantee[] an affirmative right to judicial inquiry into causes of detention.”60 During this period, habeas extended to all detention “contra legem terrae,” meaning against the law of the land, not just those raising claims of torture.61 As the Supreme Court recounted: [T]he writ of habeas corpus was available to non-enemy aliens as well as to citizens. It enabled them to challenge Executive and private detention in civil cases as well as criminal. Moreover, the issuance of the writ was not limited to challenges to the jurisdiction of the custodian, but encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes.62 Thus, habeas provided an effective means to challenge all manners of illegal confinement.63 During the 1700s, there was “no suggestion that habeas relief in cases involving Executive detention was only available for constitutional error.”64 Rather, the Court stated that the Great Writ “has always been available to review the legality of Executive detention,” notwithstanding the basis of a detainee’s claim on “the Constitution or laws or treaties of the United States.”65 Thus, in the 1800s U.S. state courts heard claims of unlawful detention or transfer based on statute.66 By allowing challenges to the Congress’s power, the 62. I.N.S. v. St. Cyr, 533 U.S. 289, 301–02 (2001). 63. 3 WILLIAM BLACKSTONE, COMMENTARIES *131. 64. St. Cyr, 533 U.S. at 302–03 (quotations omitted). 65. Id. at 302–03, 305 (quotations omitted); see also Omar v. McHugh (Omar II), 646 F.3d 13, 27 (D.C. Cir. 2011) (Griffith, J., concurring) (discussing the historical availability of the writ of habeas corpus). 66. See St. Cyr, 533 U.S. at 302–03 (explaining the evolution of habeas claims); Kennedy & Co. v. Fairman, 2 N.C. (1 Hayw.) 408 (N.C. Super. Ct. L. & Eq. 1796) (discussing a debtor’s claim); Respublica v. Keppele, 2 U.S. 197, 198–99 (Pa. 1793) (discussing an indentured servant’s claim); Respublica v. Betsey, 1 U.S. 469 (Pa. 1789) (discussing a slave’s claim); Commonwealth v. Downes, 41 Mass. (24 Pick.) 227 (1836) (discussing a military enlistee’s claim); In re Stacy, 10 Johns. 328, 333–34 (N.Y. Sup. Ct. 1813) (holding that a civilian in military custody on accusations of treason must be released). writ further operated as an “essential mechanism in the separation-of-powers scheme.”67 Today, the Supreme Court continues to adhere to the understanding that “constitutional habeas is at least as robust as common law habeas was when Congress passed the Judiciary Act of 1789.”68 The Court explained in Boumediene that “[t]he Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.”69 In this way, the writ of habeas corpus is a remedy, not a right, meaning its availability for relief does not depend on the applicability of other constitutional protections.70 Instead, habeas exists as an adaptable remedy, altered in application and scope based on the circumstances of the case.71 Modern courts widely accept that petitioners allege a proper claim for habeas relief when they request a judicial order barring their transfer to, or from, a place of incarceration.72 The rule, Further, any claim that the Suspension Clause applies only to statutory claims that existed in 1789 can be defeated by the claim heard in St Cyr. See Omar v. McHugh (Omar II), 646 F.3d 13, 27 (D.C. Cir. 2011) (discussing the application of the Suspension Clause to claims beyond statutory ones). There, an alien filed a habeas petition seeking to block his removal under the Immigration and Nationality Act of 1952, which paralleled a claim first created by Congress in the Immigration Act of 1917. Id. Despite the statute originating in the twentieth century, the Court determined that the alien’s claim “could have been answered in 1789 by a common-law judge with power to issue the writ of habeas corpus” because the alien challenged “the legality of Executive detention.” St. Cyr, 533 U.S. at 305; see also Omar II, 646 F.3d at 28 (citing St. Cyr, 533 U.S. at 305). 67. Boumediene v. Bush, 553 U.S. 723, 743 (2008). The framers had this understanding as well. See id. (explaining that the framers believed the writ to be a vital component of separation of powers). 69. Boumediene, 553 U.S. at 739. 70. See id. at 780 (“Habeas is, at its core, an equitable remedy.”); Stephen I. Vladeck, Insular Thinking About Habeas, 97 IOWA L. REV. BULLETIN 16, 19 & n.23 (2012) (citing 28 U.S.C. § 2241(c)(3) (2012)), http://www.uiowa.edu/ ~ilr/bulletin/ILRB_97_Vladeck.pdf (explaining that the writ of habeas corpus is often mischaracterized as a right rather than a remedy). 71. See Boumediene, 553 U.S. at 779 (explaining habeas’s adaptability). 72. See I.N.S. v. St. Cyr, 533 U.S. 289, 305–08 (2001) (explaining the long history of judicial review of deportations through habeas petitions); In re Bonner, 151 U.S. 242, 255–56 (1894) (explaining petitioner’s habeas challenge to his detention, holding it to be “in violation of the laws of the United States, and that [petitioner] was therefore entitled to be discharged from the custody of the therefore, became as follows: if a prisoner can state “a colorable argument that his transfer is unlawful—even if he must overcome a strong presumption on the merits—based on the executive branch’s assurances, then that transfer is, in fact, unlawful.”73 With the passage of FARRA, the Great Writ captured a new statutory claim, allowing individuals in U.S. custody to challenge their transfer to a foreign country based on their anticipated treatment in the receiving state.74 B. CAT and FARRA, U.S. State Department Regulations, and the 2005 REAL ID Act The United States ratified the U.N. Convention Against Torture (CAT) in 1994,75 Article 3 of which states that “[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”76 Congress interpreted CAT as a nonself-executing treaty,77 and warden of the institution”); Benson v. McMahon, 127 U.S. 457, 462 (1888) (reviewing petitioner’s claim of unlawful extradition through the writ of habeas corpus); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 513 (D.C. Cir. 2009) (discussing whether the court has jurisdiction over petitioner’s habeas claim); Ward v. Rutherford, 921 F.2d 286, 288 (D.C. Cir. 1990) (“[A]ctions taken by magistrates in international extradition matters are subject to habeas corpus review by an Article III district judge.”); Miller v. Overholser, 206 F.2d 415, 419–20 (D.C. Cir. 1952) (“We think it has been settled since . . . Bonner that the writ [of habeas corpus] is available to test the validity not only of the fact of confinement but also of the place of confinement.”). 73. Vladeck, supra note 10, at 1561; see also Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 525 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment and dissenting in part) (arguing the habeas rights given to detainees in Boumediene cannot be safeguarded without allowing challenges to government assurances). 74. See Omar v. McHugh (Omar II), 646 F.3d 13, 28 (D.C. Cir. 2011) (Griffith, J., concurring) (explaining the effects of FARRA on the writ of habeas corpus). 75. See supra note 3 and accompanying text (discussing the implementation of CAT). 76. CAT, supra note 3, at art. 3. 77. See Medellin v. Texas, 552 U.S. 491, 505 n.2 (2008) (recounting the legislative history regarding the nature of CAT). As a nonself-executing treaty, CAT does not create rights enforceable in U.S. courts without the passage of domestic legislation. See id. (explaining nonself-executing treaties). passed FARRA78 to effectuate U.S. international legal obligations under the Convention.79 FARRA provides that: It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.80 Thus, FARRA creates a statutory prohibition against transferring a detainee to countries in which a court determines that the detainee faces a “substantial” risk of torture.81 In so doing, FARRA extends the scope of habeas petitions to encompass challenges to detainee transfers on the basis that such a “substantial” risk exists, notwithstanding negotiated assurances from that country’s government to the contrary.82 Furthermore, FARRA’s prohibition on transfers to countries in which a detainee might face torture “generate[s] interests cognizable as liberty interests under the Due Process Clause, which guarantees that persons will not be deprived of life, liberty, or property, without due process of law.”83 FARRA directs relevant Executive Branch agencies to promulgate regulations to implement U.S. obligations under CAT.84 These regulations broadly address three categories of persons: (1) individuals subject to “expedited removal” who may be summarily removed from the United States upon arrival for lack of required documentation85 or posing a threat to national security;86 (2) individuals subject to immigration removal orders;87 and (3) individuals subject to extradition for prosecution in a foreign country.88 Shortly after FARRA’s passage, the U.S. State Department promulgated procedural regulations to address those individuals subject to immigration removal orders.89 These curiam) (citing U.S. CONST. amend. V; Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970)). 84. See 8 U.S.C. § 1231 note (2012) (explaining that FARRA requires “the appropriate agencies . . . prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture”). See, e.g., 8 C.F.R. § 235.3 (2013). 89. See 8 C.F.R. §§ 208.16–208.17 (stating the regulations for FARRA implementation); Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (per curiam) (stating that the U.S. Department of State is the appropriate agency under 8 U.S.C. § 1231 that must prescribe regulations to implement U.S. obligations under CAT). This accords with case law stating, “[i]t is the function of the Secretary of State to determine whether extradition should be denied on humanitarian grounds.” Ahmad v. Wigen, 910 F.3d 1063, 1067 (2d Cir. 1990); see also Neely v. Henkel, 180 U.S. 109, 122–23 (1901) (explaining that “the appellant cannot be extradited except upon the order of a judge of a court of the United States”); Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006) (noting that “humanitarian considerations are within the purview of the executive branch . . . in deciding whether a petitioner is extraditable”); United States v. Kin Hong, 110 F.3d 103, 110–11 & nn. 11–12 (1st Cir. 1997) (stating that “the Secretary may also decline to surrender the [petitioner] on any number of discretionary grounds, including . . . humanitarian and foreign policy considerations”); Lopez-Smith v. Hood, 121 F.3d 1322, 1326–27 (9th Cir. 1997) (stating that “the Secretary of State may order surrender of an American citizen whose extradition had been requested” (quotations omitted)); Jacques Semmelman, Federal Courts, the Constitution, and the Rule of Non Inquiry in International Extradition Proceedings, 76 CORNELL L. REV. 1198, 1198 (1991) regulations90 state that the Secretary of State (the Secretary), before approving the removal of an individual relying on FARRA to prevent his transfer, must determine whether the potential transferee is “more likely than not”91 to be tortured in the receiving country92 based on an analysis of relevant U.S. government and nongovernmental organization reports.93 If in considering the petitioner’s CAT/FARRA claim the immigration (same). 90. 8 C.F.R. §§ 208.16–208.17 (2013). 91. 8 C.F.R. § 208.16(c)(4); see also S. Res. of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 101st Cong. (1990), 136 CONG. REC. 36,193 (using the same standard as the regulation); S. EXEC. REP. NO. 101-30, at 30 (1990) (“That the United States understands the phrase ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in Article 3 of the Convention to mean ‘if it is more likely than not that he would be tortured.’”); U.N. Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: Second Periodic Reports of States Parties Due in 1999, Addendum: United States, U.N. Doc. CAT/C/48/Add.3, at 57 (Jan. 13, 2006) (explaining the standard for assessing torture). The “more likely than not” standard originates from the test used for relief from removal in persecution cases. See Tanusri Prasanna, Taking Remedies Seriously: The Normative Implications of Risking Torture, 50 COLUM. J. TRANSNAT’L L. 370, 393–94 (2012); see John T. Parry, Torture Nation, Torture Law, 97 GEO. L.J. 1001, 1039 (2009) (claiming that “[t]he goal of the understanding was to conform the Convention to existing U.S. immigration law, which prevents a person from being deported to a country where it is more likely than not that he or she would be persecuted”). 92. See S. Res. of Advice and Consent to Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 101st Cong. (1990), 136 CONG. REC. 36,193 (explaining the Senate’s understanding in ratifying CAT, involving “the phrase where there are substantial grounds for believing that he would be in danger of being subjected to torture” as being construed to mean “if it more likely than not that he would be tortured” (quotations omitted)); Lyle Denniston, Munaf’s Impact Widens Again, SCOTUSBLOG (June 10, 2012, 8:18 AM), http://www.scotusblog.com/ 2012/06/munafs-impact-widens-again/ (last visited Mar. 7, 2013) (discussing the Secretary’s process of review and certification) (on file with the Washington and Lee Law Review); see also Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012) (per curiam) (stating that “[a]n extraditee may be surrendered only after the Secretary makes a determination regarding possible torture” and explaining a determination prior to surrender of an extraditee who makes a CAT claim is mandatory (citing 22 C.F.R. § 95.2–.3)). 93. See Brief of Appellee at 13–14, Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (per curiam) (No. 09-56999) [hereinafter Garcia Brief of Appellee], 2010 WL 4199736 at *14 (detailing the sources used in making a determination about the likelihood of torture). judge decides the petitioner is more likely than not to be tortured in the receiving state, FARRA entitles the individual to protection, typically by preventing his removal.94 The same inquiry occurs for persons facing extradition for prosecution in a foreign country.95 Under State Department FARRA regulations, the standard procedure for extradition begins with a judicial determination that an individual is extraditable, before the Secretary makes the final extradition decision.96 During this process, the individual may raise a claim under CAT/FARRA that he is likely to be tortured in the requesting state.97 In such a case, the Secretary considers the potential extraditee’s claim on the basis of “the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”98 The Secretary’s extradition decision is not subject to judicial review.99 While FARRA took important steps to realize CAT’s aims, the Executive Branch regulations implementing CAT/FARRA’s nonrefoulement (nontransfer) obligations failed to establish clear procedural guidelines by which potential transferees may refute Executive Branch determinations denying their torture claims.100 As a result, “there appears to be nothing to prevent arbitrary decisions and no procedural safeguards to ensure compliance with U.S. obligations under CAT and FARRA,” particularly in the extradition context.101 More drastically, however, some courts 94. See 8 C.F.R. § 208.16(c)(4) (explaining the process an immigration judge must take in considering a petition for withholding of removal due to torture under CAT). 95. See 22 C.F.R. § 95.2 (detailing the procedures for extraditees challenging their extradition pursuant to CAT and FARRA). 96. See TORTURE BY PROXY, supra note 87, at 53 (reviewing how the process truly works when the Secretary considers a petition for extradition). 97. Id. 98. 22 C.F.R. § 95.2(a)(2) (2013). 99. See 22 C.F.R. § 95.4 (2013) (“Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.”). 100. See TORTURE BY PROXY, supra note 87, at 54 (arguing that shortcomings in the CAT- and FARRA-implementing regulations have made it difficult for potential transferees to refute Executive Branch assurances). 101. Id. For these reasons—and to address this problem—this Note will propose a rule of limited inquiry in these cases to ensure the Executive has incentive to abide by its CAT and FARRA obligations. Infra Part VI. subsequently interpreted FARRA to foreclose administrative and judicial review in extradition cases, denying federal courts requisite jurisdiction to hear transferees’ claims.102 Subsequent to FARRA, C ongress passed the 2005 REAL ID Act103 to streamline judicial review of immigration cases.104 The Act provides: Notwithstanding any other provision of law, . . . or any other habeas corpus provision, . . . a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations [CAT] . . . .105 The REAL ID Act intended to ensure that this provision represented the “sole and exclusive means” for courts to hear CAT claims, even in habeas petitions.106 While the provision appears to restrict judicial review to removal order challenges,107 the legislative history of the Act indicates that Congress did not intend to limit detainees’ substantive right under FARRA to challenge their extradition based on claims of torture risk.108 Thus, petitioners used these laws to challenge their transfer in the military detention and extradition settings.109 102. See TORTURE BY PROXY, supra note 87, at 54 (discussing the courts that denied jurisdiction to review extradition cases under FARRA). 103. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310–11 (codified at 8 U.S.C. § 1252(a)(5) (2012)). 104. Id. The relevant portion affects 8 U.S.C. § 1252(a)(4) (2012). See Vladeck, supra note 10, at 1567 (explaining the congressional reasoning for passing the REAL ID Act). 105. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310–11 (codified at 8 U.S.C. § 1252(a)(5) (2012)). 106. Id. 107. Id.; see Vladeck, supra note 10, at 1555 (discussing the effects of the provision). III. The Foundational Cases After the passage of FARRA, challenges under the statute arose in Guantanamo Bay detainee release cases and ordinary extradition proceedings.110 The Supreme Court’s ho ldings in two 2008 Guantanamo-related cases examined detainee release challenges based on the unlawful nature of such a transfer.111 These cases, however, set the stage for the challenges in the extradition context under FARRA.112 The following Part will consider the cases and their impacts in turn. A. The D.C. Circuit’s Guantanamo Jurisprudence After the September 11, 2001 attacks, Congress enacted the Authorization of Use of Military Force (AUMF),113 granting authority to the President of the United States to use “necessary and appropriate force” against the individuals, nonstate actors, groups, or organizations responsible for and involved in the attacks.114 Under AUMF, the government detained hundreds of terrorism suspects and sent them to the detention facility at the U.S. Naval Station in Guantanamo Bay.115 But after a few years of confinement without criminal charges, this form of detention led to complaints.116 110. See supra note 109 (discussing two contexts raising FARRA claims). 111. See Boumediene v. Bush, 553 U.S. 723, 793 (2008) (holding that Guantanamo Bay detainees are entitled to the writ of habeas corpus to challenge their detention); Munaf, 553 U.S. at 689–90 (holding that the Court could not prevent the transfer of detainees in the custody of the U.S. military to Iraqi authorities to stand trial for alleged crimes). 112. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956–57 (9th Cir. 2012) (per curiam) (examining FARRA in the context of the proposed extradition of Trinidad to the Philippines). read § 2242(d) of FARRA to provide “a right to judicial review of conditions in the receiving country only in the immigration context, for aliens seeking review of a final order of removal.”201 According to the D.C. Circuit, Omar’s status as a detainee in U.S. military custody facing transfer—“not an alien seeking review of a final order of removal under the immigration laws”—prevented him from receiving any right to judicial review of conditions in Iraq under FARRA.202 Claiming FARRA never conferred a substantive right allowing challenges to detainee transfer cases other than in the context of removal proceedings, the D.C. Circuit concluded that the jurisdictional issue in the FARRA context was moot.203 The D.C. Circuit further reas oned that the 2005 REAL ID Act deprived extraditees and military transferees of any hypothetical substantive right to have their claims heard.204 The court read the REAL ID Act as restricting the right to judicial review to immigration transferees seeking review of their final removal orders.205 Because Omar was “not subject to a removal order and ha[d] not filed—and, as a military transferee, [was] not eligible to file—a petition for review under section 242 of the Immigration and Nationality Act,” the REAL ID Act supported the court’s conclusion that Omar “possesse[d] no statutory right to judicial review of conditions in the receiving country.”206 In 2007, the Fourth Circuit reached a similar conclusion in Mironescu.207 Petru Mironescu, who was wanted by Romanian authorities on automobile theft charges, filed a habeas petition asking the court to block his extradition on the grounds that he faced a credible threat of torture.208 The Fourth Circuit denied his petition, holding that the REAL ID Act, in conjunction with § 2242(d) of FARRA, deprived federal courts of habeas jurisdiction to hear claims under CAT and FARRA.209 But not all circuits agreed with the Fourth and D.C. Circuits’ conclusions.210 Some looked to alternative statutory interpretations, the historic uses for writs of habeas corpus, and customary international law211 in arriving at the common, critical conclusion that federal courts possess jurisdiction to hear extraditees’ CAT and FARRA claims.212 B. Garcia and Beyond: The Case for Federal Jurisdiction Contrary to the Fourth and D.C. Circuits’ holdings, the Ninth Circuit found in Trinidad y Garcia v. Thomas that federal courts have jurisdiction over extradition cases raising challenges to their transfer under FARRA.213 The Ninth Circuit held that FARRA lacks a clear intent to strip federal courts’ jurisdiction over such challenges,214 and the court interpreted the REAL ID Act as “confined to addressing final orders of removal, without affecting federal habeas jurisdiction [in extradition cases].”215 It thus concluded that the “plausible alternative statutory construction” preserved federal habeas jurisdiction to hear detainee extradition challenges.216 Four factors confirm the validity of the Ninth Circuit’s holding in Garcia. First, courts assume that a statute’s language accurately reflects the drafters’ intent.217 Thus, as a general rule of statutory interpretation, courts attempt to enforce the literal meaning of a statute.218 They realize, however, that this assumption might not be accurate because of imperfections in the drafting process.219 Linguistic flaws and ambiguities demand that courts apply canons of interpretation in order to preserve the law’s intent.220 Thus, to preserve the law’s intent, courts “consider the history of the subject matter involved, the end to be attained . . . and the purpose to be accomplished” in deciding how to apply the law.221 Congress passed FARRA to align domestic law with U.S. obligations under CAT.222 CAT, and thus FARRA, demonstrates a clear intent to eradicate and prevent all forms of torture worldwide, including transfers of persons to places posing a risk of torture.223 CAT’s Article 3 prohibition of such transfers is “general and unlimited: [w]ithout exception, a signatory country may not extradite a person likely to face torture.”224 Therefore, restricting FARRA claims to final orders of removal creates a loophole that would prevent individuals facing extradition from challenging their impending transfers, thereby preventing the law’s intent to eradicate torture.225 The second factor that confirms the Ninth Circuit’s Garcia holding is its compliance with relevant international law,226 under which the list of universally accepted customs that rise to the level of enforceable law includes several abhorrent practices, including genocide, slavery, and torture.227 Customary international law goes further as well, recognizing the principle of nonrefoulement, which forbids states from transferring individuals in its custody to a state practicing torture.228 223. See Comm’n on Human Rights, Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 5, U.N. Doc. E/CN.4/1984/72 (Mar. 9, 1984) (discussing the intent of CAT and FARRA); J. HERMAN BURGERS & HANS DANELIUS, THE UNITED NATIONS CONVENTION AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 1 (1988) (“The principal aim of the Convention is to strengthen the existing prohibition of [torture and other cruel, inhuman or degrading treatment or punishment] by a number of supportive measures.”); Magnusson, supra note 217, at 39, 41 (discussing CAT’s goals as evidenced by accompanying documents). 224. Trinidad y Garcia v. Thomas, 683 F.3d 952, 986 (9th Cir. 2012) (Berzon, J., concurring in part and dissenting in part). 225. See, e.g., Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 514–15 (D.C. Cir. 2009) (restricting FARRA claims to challenges to a final order removal handed down in immigration cases). 226. See GAIL H. MILLER, DEFINING TORTURE 3 (2008), http://www. cardozo.yu.edu/cms/uploadedFiles/FLOERSHEIMER/Defining%20Torture.pdf (“Under customary international law, the prohibition of torture is jus cogens—a peremptory norm that is non-derogable under any circumstances. It is binding on all nations. This elevated status within international law places torture on par with slavery and genocide.” (citations omitted)); Magnusson, supra note 217, at 47–48 (discussing how an interpretation of FARRA that allows for the transfer of individuals within U.S. custody to a foreign sovereign practicing torture violates international law). MILLER, supra note 226, at 3. 228. See Magnusson, supra note 217, at 48 n.191 (discussing the origination Additionally, U.S. law emphasizes under the Charming Betsy canon that, “[w]here fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.”229 Therefore, FARRA and the REAL ID Act provisions interpreted to restrict federal habeas jurisdiction in immigration cases to final orders of removal—thereby denying potential extraditee challenges under the Acts—run contrary to international law.230 Third, the D.C. and Fourth Circuits’ conclusion that FARRA or the REAL ID Act removes federal habeas jurisdiction in extradition challenge cases is unconstitutional.231 The Constitution’s framers designed the Suspension Clause to incorporate the broadly utilized common law writ of habeas corpus as a baseline,232 thus encouraging robust inquiry into potential transfers of detainees.233 As such, the Suspension Clause must encompass the jurisdiction of federal courts to issue writs of habeas corpus in extradition- and FARRA-based transfer challenges,234 unless an adequate alternative for hearing such of nonrefouler in the refugee context before its expansion into international law by CAT, and its recent application in England). 229. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 114 (1987); see also Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804) (stating that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”). 230. See Vladeck, supra note 10, at 1563–64 (discussing the discrepancy created by “final order of removal” in both FARRA and the REAL ID Act). See Brief of Legal Historians, supra note 59, at 17 n.4 The [Ninth Circuit] Court of Appeals held [in Garcia] that such authority in this case comes from the federal habeas statute, and that neither FARRA nor the REAL ID Act of 2005 provided the requisite “clear statement” to divest the federal courts of such jurisdiction. Although amici agree with this analysis, the Suspension Clause discussion . . . undergirds this conclusion by demonstrating why a statute taking away such jurisdiction (without providing an adequate alternative) would be unconstitutional. 232. See id. at 16 (discussing the Suspension Clause’s preservation of the common law nature of the writ). 233. See id. (discussing how incorporating the Suspension Clause as a baseline fosters vigorous inquiry into the conditions surrounding a potential transfer); supra Part II.A (discussing the history of habeas corpus and its uses). 234. See Brief of Legal Historians, supra note 59, at 16 (discussing the Suspension Clause’s preservation of the common law nature of the writ). challenges exists.235 The D.C. and Fourth Circuits’ interpretation of FARRA and the REAL ID Act in Omar II and Mironescu failed to provide a viable alternative judicial forum for extraditee challenges based on torture claims,236 thereby rendering their interpretation of those Acts unconstitutional.237 Finally, it is worth noting that other circuit court judges have agreed with the Ninth Circuit’s ruling in Garcia that FARRA does not remove federal courts’ jurisdiction over extraditee challenge cases.238 While the D.C. Circuit Court’s Omar II majority reasoned that the use of the word “policy” instead of “right” in FARRA § 2242(a) evinced Congress’s intent to foreclose detainees’ constitutional habeas and procedural due process protections,239 D.C. Circuit Court Judge Griffith’s concurrence concluded otherwise:240 When an American citizen is in U.S. custody, the Constitution’s guarantee of habeas corpus entitles him to assert any claim that his detention or transfer is unlawful. Because Congress may not deprive Omar of access to the courts without suspending the writ or repealing the statutory [FARRA] basis for his claim, neither of which it has done here, we must consider his argument . . . .241 235. Id.; see Garcia Brief of Appellee, supra note 93, at *55 (“Where Congress fails to provide an adequate substitute, the Suspension Clause is violated.” (quotations omitted) (citing Boumediene v. Bush, 553 U.S. 723, 771– 72 (2008))). 236. See Vladeck, supra note 10, at 1562 (detailing the Fourth Circuit’s denial of habeas review for Mironescu without providing him another option to air his claims). 237. See id. (stating that the failure to provide an adequate alternative to habeas review violates the Suspension Clause). 238. Infra note 242. 239. See Brief of Legal Historians, supra note 59, at 22 n.7 (explaining the significance of word choice, according to the D.C. Circuit in Omar II). 240. See Omar v. McHugh (Omar II), 646 F.3d 13, 25–29 (D.C. Cir. 2011) (Griffith, J., concurring) (“I agree that the [FARRA] statute grants Omar, who is being held in Iraq by the U.S. military, no right against being transferred to Iraqi authorities, but I disagree with the majority’s suggestion that we have no jurisdiction to consider his claim.”). 241. Id. Judge Griffith concluded, as several other circuits had,242 that the Constitution required the court to hear a potential extraditee’s claim that transfer would result in torture.243 The four factors discussed above provide a clear basis for establishing federal courts’ jurisdiction over cases challenging extradition orders under CAT or FARRA.244 Despite the D.C. and Fourth Circuits’ rulings in Omar II and Mironescu denying federal jurisdiction in such cases, the Ninth Circuit’s opposite holding on the issue of jurisdiction in Garcia accords most fully with FARRA’s statutory intent, well-established international legal custom and its canonical application to U.S. law, and the historical uses for writs of habeas corpus enshrined in the Constitution’s Suspension Clause.245 As the following Part will argue, however, even the Ninth Circuit’s Garcia ruling erred in failing to address substantively the merits of the petitioner’s FARRA claim regarding his likelihood of being tortured after his removal from the United States.246 V. The Need for Substantive Review of Detainee Torture Claims Under FARRA Garcia established a clear basis for federal courts’ jurisdiction over extraditees’ habeas petitions, but did not adopt a clear stance on how substantive a review must be granted to detainee torture concerns under FARRA.247 Yet the Supreme Court’s finding in Boumediene provides a clear indication that detainee torture concerns arising under FARRA necessitate a full substantive review on the merits of detainee claims.248 An analysis of the rule of noninquiry’s intended applications further strengthens this case for substantive review. A. The Case for Meaningful Review As noted above,249 because the writ of habeas corpus is an adaptable remedy rather than a right, its application and scope depend on the circumstances of a specific case.250 To properly consider the circumstances of an extraditee’s case raising claims of potential torture, a court must meaningfully review the Executive’s ability to lawfully extradite an individual who believes he will be tortured.251 Deficiencies of the judicial 247. See Brief of Legal Historians, supra note 59, at 17–18 (explaining that the Ninth Circuit reached the correct result as to jurisdiction in Garcia but neglected the substantive challenge a detainee might raise under FARRA). The Ninth Circuit held that federal courts do have authority to hear challenges to extradition or transfer based on FARRA; however, it limited that jurisdiction to a requirement that the Secretary of State file a declaration averring that it is not “more likely than not” that the petitioner will face torture upon removal. Trinidad y Garcia v. Thomas, 683 F.3d 952, 957 (9th Cir. 2012) (per curiam) (quoting 22 C.F.R. § 95.2 (2013) (emphasis added)). Once the Secretary files such a declaration, however, “the court’s inquiry shall have reached its end,” and petitioner receives no opportunity to rebut the Secretary’s assurances. Id. This holding can be attributed to a misreading of the Supreme Court’s decision in Munaf. See Brief of Legal Historians, supra note 59, at 20 Notwithstanding Boumediene, the Court of Appeals held that a mere declaration by the Secretary (or her designee) that the petitioner will not be transferred to torture is the complete judicial review available to detainees in this context, based on a misreading of this Court’s decision (on the same day as Boumediene) in Munaf. Whereas Munaf recognizes the need to accord appropriate deference to the Secretary’s determination, nothing in Munaf suggests that such deference should be absolute—as the Court of Appeals concluded. 248. See Boumediene v. Bush, 553 U.S. 723, 779 (2008) (detailing the necessary review with reference to INS v. St. Cyr, 533 U.S. 289, 302 (2001)). See Boumediene, 553 U.S. at 779 (reviewing the nature of habeas). 251. See id. at 783 (“The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”). proceeding certifying extraditability and the limited deference accorded to the Executive Branch in such cases require that courts conduct more expansive review.252 “[T]he common-law habeas court’s role was most extensive in cases . . . where there had been little or no previous judicial review.”253 By analogizing habeas to procedural due process, the Court determined that “the necessary scope of habeas review in part depend[ed] on the rigor of any earlier proceedings.”254 In Boumediene, the only review of petitioner’s indefinite military detention came from the CSRTs.255 The Supreme Court, affirming the D.C. Circuit, considered the CSRTs’ review insufficient to satisfy the “meaningful opportunity” for review required under the Suspension Clause: For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the [underlying] proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.256 Similarly, in Garcia, the State Department “denied Trinidad an opportunity to review and rebut any evidence against him;”257 his administrative proceedings, therefore, were similarly insufficient to those provided by the CSRTs in Boumediene.258 Such closed 252. See id. at 780 (discussing the need for judicial review based on the sufficiency of the underlying judicial proceedings); Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 523 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment and dissenting in part) (arguing that deference to the Executive Branch need not be absolute). 253. Boumediene, 553 U.S. at 780. 254. Id. at 781. 255. Id. at 779–92. 256. Id. at 786 (citations omitted); cf. Khouzam v. Attorney Gen. of the U.S. (Khouzam II), 549 F.3d 235, 259 (3d Cir. 2008) (holding that in removal proceedings, it violates due process to deny a noncitizen the opportunity to rebut diplomatic assurances made by a foreign sovereign that the detainee will not be tortured once removed). 257. Garcia Brief of Appellee, supra note 93, at *24. 258. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 997–98 (9th Cir. 2012) (per curiam) (finding that Trinidad’s administrative review was insufficient). proceedings require a “more searching review”259 because of the high risk of harm that may occur as a result of an erroneous determination.260 Given the Supreme Court’s holding that the CSRTs did not provide petitioners an adequate forum for review under the Suspension Clause,261 Garcia’s judicial forum should fail any similar standard of adequacy.262 Therefore, sufficient judicial review requires assessment of the government’s evidence and presentation by the petitioner regarding his torture claim before ending the extradition inquiry.263 Additionally, while the Supreme Court in Munaf emphasized the importance of according appropriate deference to the Secretary’s determination of the likelihood of the petitioner’s torture, nothing suggests that such deference must be absolute or that it cannot be overcome—particularly in the context of extradition.264 As D.C. Circuit Court Judge Griffith stated, “I do not believe Munaf compels absolute deference to the government . . . and I believe the premise of Boumediene requires that the detainees have . . . some opportunity to challenge the government assurances.”265 Thus, to ensure the accuracy of the government’s representations, individuals must be able to challenge the veracity of the assurances for a “naked declaration 259. Id. at 997. 260. inquiry). See id. (explaining why closed proceedings require more intense 261. See Boumediene v. Bush, 553 U.S. 723, 767 (2008) (“[T]he procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review.”). 262. See Garcia, 683 F.3d at 997–98 (Berzon, J., concurring in part and dissenting in part) (arguing the Secretary’s decision on the likelihood of torture is insufficient based on the Boumediene analysis of CSRTs’ deficiencies). See id. (detailing the contours of sufficient judicial review). 264. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 997–98 (9th Cir. 2012) (Berzon, J., concurring in part and dissenting in part) (discussing the contours of deference); Brief of Legal Historians, supra note 59, at 20; Garcia, 683 F.3d at 967 (Tallman, J., dissenting) (believing that the judiciary should not play a role in the review of Trinidad’s claims, but noting that Congress will either prefer courts play a “minimal role” and accord “minimal” review, or play a “greater role,” but not suggesting courts have no role in reviewing the extradition process). 265. Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 523 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment and dissenting in part). simply cannot resolve the issue.”266 Therefore, if deference need not be absolute, courts must have the authority in cases in which a detainee brings a FARRA claim to review negotiated assurances that torture will not occur.267 The preceding cases establish that an extraditee should have a right to substantive review of his claim under CAT or FARRA challenging his transfer, and to present evidence to rebut the requesting country’s assurances to the U.S. government that he will not be tortured upon return.268 Before proceeding to a substantive review of the merits of an extraditee’s claim, however, the court must consider whether the rule of noninquiry allows it to consider the merits of such a claim. B. Supplemental Considerations in Support of Substantive Review: Separation of Powers and the Rule of Noninquiry Judicial power is limited.269 For example, courts may not evaluate the conduct of foreign governments according to the U.S. Constitution.270 Despite the limits of judicial inquiry, “it is 266. Al Odah v. United States, 559 F.3d 539, 545 (D.C. Cir. 2009) (per curiam). See also id. at 545 (“[I]t is the [habeas] court’s responsibility to make the materiality determination itself.”). 267. See Brief of Legal Historians, supra note 59, at 22–23 (arguing that “it seems clear that the [Munaf] Court meant to leave open at least some possibility for a detainee to rebut the Secretary’s assurances”). 268. See Boumediene v. Bush, 553 U.S. 723, 767 (2008) (arguing for meaningful review of detainee challenges to detention or transfer); Garcia, 683 F.3d at 985–98 (Berzon, J., concurring in part and dissenting in part) (arguing for limited review of the Secretary’s decision regarding torture in the context of an extraditee’s FARRA claim). Boumediene, 553 U.S. at 744. 270. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 995 (9th Cir. 2012) (per curiam) (providing an example of the judiciary’s limited power); Munaf v. Geren, 553 U.S. 674, 677 (2008) (stating that a foreign sovereign has the right to prosecute American citizens for the crimes committed on its soil, and those Americans cannot complain that the foreign sovereign’s legal system does not include all of the rights guaranteed by the U.S. Constitution); Neely v. Henkel, 180 U.S. 109, 123 (1901) [W]hen an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of the country may prescribe for its own indubitably the role of courts to ensure that American officials obey the law.”271 Garcia cited the rule of noninquiry as a potential limitation on courts’ right to review the Secretary of State’s determination regarding the likelihood that a detainee would face torture upon his transfer to a foreign country.272 Fundamentally, the rule of noninquiry can be understood as a prudential constraint under the Separation of Powers Doctrine on judges’ ability to overrule the Executive Branch’s extradition authority.273 Yet confusion exists among the courts as to when the rule applies.274 In 1993, the First Circuit in In re Extradition of Howard275 articulated the view on the rule’s applicability garnering the most widespread acceptance: The rule did not spring from a belief that courts, as an institution, lack either the [constitutional] authority or the capacity to evaluate foreign legal systems. Rather, the rule came into being as judges, attempting to interpret particular treaties, concluded that, absent a contrary indication in a specific instance, the ratification of an extradition treaty mandated non-inquiry as a matter of international comity.276 Because the rule of noninquiry is a judge-made rule, statutes such as FARRA creating express substantive rights enforceable through habeas relief preempt the rule’s application.277 As a people, unless a different mode be provided for by treaty stipulations between that country and the United States. 271. Garcia, 683 F.3d at 995 (Berzon, J., concurring in part and dissenting in part). 272. Id. at 957 (majority opinion) (citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326–27 (9th Cir. 1997)); see Brief of Legal Historians, supra note 59, at 24 (citing the Ninth Circuit’s conclusion on the role of separation of powers and the rule of noninquiry in Garcia). 273. See Brief of Legal Historians, supra note 59, at 24 (detailing the rule of noninquiry). 274. See id. at 23–24 (explaining the various understandings of the rule of noninquiry). 275. In re Extradition of Howard, 996 F.2d 1320 (1st Cir. 1993). 276. Id. at 1330 n.6 (emphasis added); see also Brief of Legal Historians, supra note 59, at 24 (arguing that the First Circuit’s articulation formulation is the correct interpretation of the rule of noninquiry); Parry, supra note 39, at 1978–96 (examining the evolution of the noninquiry doctrine). 277. See Brief of Legal Historians, supra note 59, at 24 (discussing the rule of noninquiry). result, courts are justified in undertaking a factual inquiry based on a FARRA claim regarding the circumstances of the transfer.278 Thus, under the rule of noninquiry, nothing prohibits judicial scrutiny into the substance of the Secretary of State’s determination that a transferee does not face a substantial risk of torture.279 Furthermore, an analogous rule governing common law habeas jurisprudence at the time of the Constitution’s ratification also supports such an interpretation. Eighteenth century English judges routinely discarded a black-letter rule forbidding them from examining facts that contested an individual’s transfer280 in cases in which there had been little previous judicial review regarding the causes for his detention.281 When no other opportunity for judicial review existed and a prisoner applied for habeas relief, courts engaged in factual inquiries into the detention, regardless of any rule barring inquiry.282 Under FARRA and the REAL ID Act, which confine judicial review to final orders of removal, extradition cases like Garcia in which no other opportunity for review exists fit squarely into such a framework, further justifying the need for a substantive inquiry into the circumstances of an individual’s impending transfer.283 Having established a clear legal justification for substantive judicial review of detainee claims under CAT and FARRA, courts must carefully develop a framework for such reviews, balancing 278. See id. (arguing for the legitimacy of judicial review in the FARRA context); Trinidad y Garcia v. Thomas, 683 F.3d 952, 985–98 (9th Cir. 2012) (Berzon, J., concurring in part and dissenting in part) (arguing for limited review of these decisions). 279. See Brief of Legal Historians, supra note 59, at 23–24 (analyzing the effects of the rule of noninquiry on the Secretary’s review of the likelihood of torture). 280. See id. at 23 n.7 (comparing the rule of noninquiry to the old English rule). 281. See Boumediene v. Bush, 553 U.S. 723, 780 (2008) (explaining that judges did not consistently follow the black-letter rule as it was subject to exceptions in habeas cases). 282. See Brief of Legal Historians, supra note 59, at 23 n.7 (detailing the history of prisoner habeas review (citing Fallon & Meltzer, supra note 42, at 2102)). 283. See Brief of Legal Historians, supra note 59, at 23 (arguing for the necessity of substantive judicial review into a potential transfer in extradition cases). legitimate concerns of the executive branch with the need for judicial scrutiny.284 It is toward this goal that this Note turns next. VI. Proposing a Rule of Limited Inquiry to Provide Meaningful Judicial Review Two procedural questions confront any potential rule for judicial review of detainee transfer challenges arising under FARRA.285 First, when the Executive Branch examines a challenge to detention or removal, what procedural protections must it provide? Second, when a reviewing court, exercising habeas jurisdiction, reviews Executive Branch determinations that a transferee does not face a substantial likelihood of torture, what is the appropriate scope of judicial review?286 These questions indicate that such a rule must strike a balance between providing meaningful review to transferees’ petitions, staying true to the intention of habeas corpus protections, and following the law on one hand while respecting the purview of the executive branch on the other.287 As a result, a rule of limited inquiry, in which the courts examine the government’s findings and negotiated assurances and examine the petitioner’s evidence, best protects these competing interests and requirements while providing detainees the meaningful review they are constitutionally guaranteed. A. What Habeas Demands In circumstances in which a detainee can present “reasonably available evidence demonstrating there is no basis for his continued detention,” habeas demands he have the 284. See infra Part VI.A (examining habeas’s demands for judicial review). 285. See Fallon & Meltzer, supra note 42, at 2089 (discussing the procedural rights of individuals challenging their detention or removal). 286. See id. (inquiring about the due scope of review). 287. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 961 (9th Cir. 2012) (per curiam) (explaining the competing interests that must be balanced in developing a rule of inquiry). opportunity to make such a presentation to a habeas court.288 When an individual faces the possibility of being transferred to a country in which he may face a substantial risk of torture, the “rudimentaries of an adversary proceeding” demand that he be afforded an opportunity to challenge the government’s representations that torture is not likely to occur.289 While this explains the availability of adversarial review of the status of Guantanamo detainees, it neglects the same process for the lawfulness of extraditions.290 To safeguard the habeas protections affirmed by and extended to detainees by the Supreme Court in Boumediene, extraditees must be able to challenge the government’s assurances that transfer will not result in torture. In all of these instances, because habeas exists as an “adaptable remedy” in which the “precise application and scope [changes] depending on the circumstances,”291 the writ demands that courts undertake a full substantive review of an individual’s claim that he will be tortured if transferred to a foreign country.292 B. Assuaging Government Concerns Regarding Enhanced Judicial Review The State Department expresses concerns regarding judicial review of its torture determinations in extradition cases.293 The 288. Boumediene v. Bush, 553 U.S. 723, 790 (2008). 289. Kiyemba v. Obama (Kiyemba II), 561 F.3d 509, 535 (D.C. Cir. 2009) (Griffith, J., concurring in the judgment and dissenting in part). 290. See id. at 525 (Griffith, J., concurring in the judgment and dissenting in part) (comparing review for Guantanamo Bay detainees and potential extraditees). 291. Boumediene, 553 U.S. at 779. 292. See Brief of Legal Historians, supra note 59, at 5–6 FARRA . . . creates a substantive right against the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture. Thus, the Suspension Clause requires that courts afford detainees an opportunity to show that it is “more likely than not” that they will be tortured once transferred, even when the Secretary avers to the contrary. (quotations omitted). 293. See generally Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (per curiam) (discussing government concerns to judicial review in this context); see also Alperin v. Vatican Bank, 410 F.3d 532, 556 (9th Cir. 2005) (stating that government emphasizes the “sensitive and delicate” nature of obtaining assurances from a foreign government, which may involve conditions on extraction or setting up a monitoring process to track the extraditee’s treatment upon return.294 Because of the nature of this process, the government alleges that judicial review in this area may harm foreign relations, jeopardize foreign relations, or both.295 In response, employing a “scaled approach”—evaluating the State Department’s declaration that an extradition can occur consistent with CAT based on the record regarding the likelihood of torture upon extradition296—emphasizes the importance of judicial deference to the Secretary’s substantive determination.297 While extradition cases involve information regarding diplomatic relations with other countries, they do not seem to implicate—as cases like Boumediene and Munaf did—national security.298 the State Department’s views on the political question doctrine are considered in deciding to exercise review). 294. See Garcia, 683 F.3d at 999 (discussing the process of obtaining government assurances); Mironescu v. Costner, 480 F.3d 664, 671–72 (4th Cir. 2007) (explaining that how the executive branch is well-suited to making extradition decisions); United States v. Kin Hong, 110 F.3d 103, 110 (1st Cir. 1997) (“The State Department alone, and not the judiciary, has the power to attach conditions to an order of extradition.”); Emami v. Dist. Court, 834 F.2d 1444, 1454 (9th Cir. 1987) (“The need for flexibility in the exercise of Executive discretion is heightened in international extradition proceedings which necessarily implicate the foreign policy interests of the United States.” (quoting Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir. 1980) (citation omitted))); Sindona v. Grant, 619 F.2d 167, 174 (2d Cir. 1980) (explaining that “the degree of risk to [the petitioning detainee’s] life from extradition is an issue that properly falls within the exclusive purview of the executive branch”). 295. See Garcia, 683 F.3d at 999–1001 (Berzon, J., concurring in part and dissenting in part) (discussing the government’s four main concerns about involving the judiciary in review of executive determinations on the likelihood of torture). 296. See Munaf v. Geren, 553 U.S. 674, 702 (2008) (“The Solicitor General explains that such [likelihood-of-torture] determinations are based on ‘the Executive’s assessment of the foreign country’s legal system and . . . the Executive[’s] . . . ability to obtain foreign assurances it considers reliable.’” (citation omitted)). In many ways, this comports with the caveat left by Chief Justice Roberts in Munaf, stating that a more extreme case—one in which evidence of torture is identified by the State Department but the Secretary decides to extradite anyway—may arise and warrant further judicial review. Id. 297. See Garcia, 683 F.3d at 998 (explaining how a scaled approach encompasses deference to executive branch assurances). 298. See id. at 999 (discussing the differences between normal extradition Because of the courts’ familiarity in dealing with sensitive information, they have developed effective procedures, such as in camera review and protective orders, for reviewing such information in a guarded manner.299 Through these means, courts ameliorate the danger of revealing confidential or classified information,300 and may in fact bolster U.S. foreign relations by ensuring the United States honor its international obligations under CAT.301 Further, judges often face the task of assessing the likelihood of torture in removal proceedings in immigration courts.302 While courts lack the “ability to communicate with the foreign government or to weigh the situation there, including the bilateral relationship with the United States, with resources and cases and Guantanamo detainee cases and their relative effects on national security). 299. See id. (explaining judicial mechanisms for dealing with classified and sensitive foreign policy information); Mironescu v. Costner, 480 F.3d 664, 673 (4th Cir. 2007) (explaining that the court has “no reason to doubt that district courts can adequately protect the confidentiality of such [sensitive] communications [between the executive branch and foreign governments] by considering them in camera, as the district court intends to do here”); Quinn v. Robinson, 783 F.2d 776, 788 (9th Cir. 1986) (discussing the availability of in camera disclosure for judicial consideration of sensitive State Department information); Eain v. Wilkes, 641 F.2d 504, 514–15 (7th Cir. 1981) (explaining that the State Department can and has made it a practice to share information with the courts during extradition proceedings, often through an in camera review process); see also Boumediene v. Bush, 553 U.S. 723, 796 (2008) (“We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible.”); Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025 (1988) (codified at 18 U.S.C.A. App. 3) (describing procedures for the use of classified information in criminal proceedings); FED. R. CIV. P. 5.2 (describing procedures for protective orders and filing documents under seal); Robert Timothy Reagan, The New ‘‘Public Court’’: Classified Information in Federal Court, 53 VILL. L. REV. 889, 904–05 (2008) (exploring procedures for the use of classified information in post-9/11 federal civil and criminal proceedings). 300. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 1000 (9th Cir. 2012) (per curiam) (discussing the effects of protective measures). 301. See Garcia Brief of Appellee, supra note 93, at *28 (explaining the benefits of judicial review in transfer and torture determinations). 302. See Garcia, 683 F.3d at 1000 (“In the immigration context, courts frequently review claims that an individual, if removed, is likely to be tortured and therefore is entitled to withholding or deferral of removal under CAT and the FARR Act.”); Garcia Brief of Appellee, supra note 93, at *28 (explaining judicial review of torture claims in immigration courts). expertise comparable to those of the State Department,”303 adjudicating claims of torture and entitlement to relief under CAT and FARRA in immigration cases often involves assessing diplomatic assurances of the kind found in extradition proceedings.304 If judicial competence allows evaluations of foreign assurances in the immigration context, courts must be capable of doing the same in the extradition context.305 Finally, the government expresses further concern with timeliness and the ability of judges to make determinations regarding the probability of an individual facing torture.306 Promptness in extradition proceedings helps ensure that other nations will remain prompt in responding to U.S. requests and prevents statute of limitations problems.307 In addressing this valid concern, courts regularly implement expedited procedures and proceedings when necessary and appropriate.308 Weighing 303. Reply Brief for Appellant at 43, Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (per curiam) (No. 09-56999) [hereinafter Garcia Brief for Appellant]. 304. See Garcia, 683 F.3d at 1000 (Berzon, J., concurring in part and dissenting in part) (explaining what courts must evaluate in reviewing potential extraditions); Khouzam v. Attorney Gen. of the U.S. (Khouzam II), 549 F.3d 235, 259 (3d Cir. 2008) Prior to removal on the basis of diplomatic assurances, Khouzam must be afforded notice and an opportunity to test the reliability of those assurances in a hearing . . . . The alien must have an opportunity to present, before a neutral and impartial decisionmaker, evidence and arguments challenging the reliability of diplomatic assurances proffered by the Government, and the Government’s compliance with the relevant regulations. Further, Canada, the United Kingdom, and other European states all allow judicial review of diplomatic assurances. Parry, supra note 39, at 2022. 305. See Garcia, 683 F.3d at 1000 (arguing for the competence of judges to review diplomatic assurances in other contexts, and not just the immigration context). 306. Id.; see Garcia Brief for Appellant, supra note 303, at 30, 43 (“A timely extradition process is a necessary aspect of a functioning extradition relationship. Excessive delay can jeopardize a foreign prosecution and undercut the core objective of extradition relationships in ensuring that fugitives are brought to justice in the country in which their criminal conduct occurred.”). 307. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 1000 (9th Cir. 2012) (per curiam) (discussing the benefits of promptness in judicial review). 308. See id. (explaining the various procedures courts take to ensure expediency). Trinidad, in his reply brief, felt that blame for the delay in his case rested with the government and felt a court decision could expedite the proceedings: the government’s rightful interest in timeliness against a petitioner’s right to habeas relief if his extradition would be unlawful, courts have determined that a petitioner’s liberty interests must outweigh the government’s delay concerns, which can be ameliorated through expedition.309 C. A Framework for Review Because FARRA does not foreclose substantive judicial review in extradition cases, appropriate procedures for meaningful review for individuals facing extradition orders can be established. After analyzing many cases involving FARRA claims, using a “rule of limited inquiry” allows extraditees to challenge their transfer under FARRA while guaranteeing that the Secretary adheres to U.S. obligations under CAT and FARRA.310 Under a rule of limited inquiry, the transferee bears the burden of demonstrating through “strong, credible, and specific evidence” that, despite the Secretary’s contrary determination, his torture upon extradition is more likely than not.311 To But the Government, not Trinidad, is responsible for protracting the litigation. At every stage, Trinidad sought judicial review of his FARR Act claim but the district court deferred review of his claim until his second habeas petition. . . .[T]he Government vigorously challenged Trinidad’s right to seek habeas review requiring multiple rounds of briefing. The Government even disregarded a court order to produce the administrative record, further delaying the process. In any event, the en banc Court’s resolution of this issue here will expedite the habeas process for all future cases. Appellee’s Supplemental en banc Brief at 64–65, Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (per curiam) (No. 09-56999). 309. See Garcia 683 F.3d at 1000 (Berzon, J., concurring in part and dissenting in part) (expressing the importance of a petitioner’s liberty interests over the government’s concerns regarding timeliness); Mironescu v. Costner, 480 F.3d 664, 673 (4th Cir. 2007) (arguing that although “habeas review may delay extradition, or preclude it altogether, [it] cannot negate [the detainee’s] right to obtain habeas relief if he is being detained in violation of federal law”). 310. See Garcia 683 F.3d at 1000 (Berzon, J., concurring in part and dissenting in part) (explaining how the rule of limited inquiry strikes a balance between competing demands). 311. Id. at 1001; see also Brief of Legal Historians, supra note 59, at 23 (stating that “the deference to which the Secretary is entitled means simply that the burden on the merits is properly placed on the detainee in such establish a prima facie case under his FARRA claim, he must show that no reasonable factfinder could find otherwise.312 If and only if he meets both prongs, the burden shifts to the Secretary to produce evidence, if she so chooses, to establish the basis for her determination that torture is, in fact, not more likely than not.313 The reviewing court will “inquire only into credible claims of physical mistreatment or . . . punishment,”314 examining the evidence presented by both sides in determining whether extradition would lawfully abide by the prohibitions set out under FARRA.315 This pre-extradition procedure316 ensures that the government adheres to its CAT and FARRA obligations and protects the rights of people facing extradition,317 and that the court accords appropriate deference to the executive once extradition is final and review is foreclosed.318 Cabining review ensures that examining courts will not need to conduct a full, searching evaluation of negotiated assurances and the Secretary’s decisions in extradition cases.319 In this way, 313. Id. 315. Id. circumstances—as it should be”). Garcia, 683 F.3d at 1001. Parry, supra note 39, at 2023. 316. See, e.g., Brock v. Roadway Express, Inc., 481 U.S. 252, 261–62 (1987) (explaining that “the [Supreme] Court has upheld procedures affording less than a full evidentiary hearing if some kind of a hearing ensuring an effective initial check against mistaken decisions is provided before the deprivation occurs, and a prompt opportunity for complete administrative and judicial review is available” (quotations omitted)). Such procedures are common and have been held to be necessary by the Supreme Court in other circumstances. Id. 317. See Parry, supra note 39, at 2022 (explaining how this procedure would honor CAT and FARRA obligations). 318. See 22 C.F.R. §§ 95.1–95.4 (2013) (laying out the process for hearing challenges to extradition, and ending review once the Secretary signs a final order of extradition). 319. See Parry, supra note 39, at 2022 (explaining the benefits of a rule of limited inquiry). The government argues that judicial competence in immigration cases does not indicate such competence in the extradition process because extradition treaties bear on human rights norms and commitments, meaning torture is less likely in extradition. See Garcia Brief of Appellant, supra note 303, at 19–20 (detailing the government’s arguments). While that may raise the bar for the showing a detainee must make to combat the Secretary’s certification of CAT and FARRA compliance, it should not obviate all judicial review of substantive FARRA enforcement in habeas. Trinidad y Garcia v. Thomas, 683 F.3d 952, 1000 (9th Cir. 2012) (per curiam). courts can play a vital—but restrained—role in ensuring that the government fulfills habeas’s demands while respecting the expertise of the executive.320 VII. Conclusion With the development of the circuit split on the issue of jurisdiction after the Ninth Circuit’s decision in Garcia,321 the “thorny constitutional thicket” worsened,322 as predicted by scholars.323 But this debate is not without an answer.324 Garcia’s holding—establishing federal courts’ habeas jurisdiction to hear FARRA claims by potential extraditees challenging their transfer325—conforms with FARRA’s statutory intent, wellestablished international legal custom and its applicability to U.S. law, and the historic uses for writs of habeas corpus enshrined in the Constitution’s Suspension Clause.326 Additionally, courts have a further role in this process.327 Based on the flexible remedy of habeas corpus, Boumediene’s promise of meaningful review, and the Suspension Clause’s guarantee of a sufficient forum, extraditee torture concerns arising under FARRA necessitate a substantive review on the merits of habeas claims.328 This requirement is met by a rule of limited inquiry, 320. See Boumediene v. Bush, 553 U.S. 723, 783 (2008) (“Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain.”). 321. See supra note 25 (discussing the circuit split); supra Part IV (same). 322. Vladeck, supra note 10, at 1572. 323. Id. 324. See supra Part IV.B (discussing the case for federal courts’ habeas jurisdiction over FARRA claims). 325. Trinidad y Garcia v. Thomas, 683 F.3d 952, 956–57 (9th Cir. 2012) (per curiam). 326. See supra Part IV.A–B (laying out the circuit split and arguing for Garcia as the best conclusion). 327. See Boumediene v. Bush, 553 U.S. 723, 771 (2008) (discussing the role of courts in judicial review of the merits of petitioners’ claims); Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2009) (same); Khouzam v. Attorney Gen. of the U.S. (Khouzam II), 549 F.3d 235, 250 (3d Cir. 2008) (same). 328. Boumediene v. Bush, 553 U.S. 723, 779 (2008) (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)). II. Habeas Corpus and the Domestic Statutory Bases for Detainee Challenges......................................2493 A. The Historical Roots of Habeas............................... 2494 B. CAT and FARRA, U.S. State Department Regulations, and the 2005 REAL ID Act .. ..............2499 III. The Foundational Cases................................................2505 A. The D.C. Circuit's Guantanamo Jurisprudence.......................................................... 2505 B. A Lasting Legacy : Beyond the War on Terror and into Ordinary Extradition ................................2509 IV. Establishing Federal Courts' Jurisdiction Over FARRA Challenges to Detainee Extradition Orders ............................................................................2516 A. Omar II and Mironescu: Attempts to Limit Jurisdiction to Final Orders of Removal ................................................................... 2517 B. Garcia and Beyond: The Case for Federal Jurisdiction..............................................................2519 V. The Need for Substantive Review of Detainee Torture Claims Under FARRA ......................................2524 A. The Case for Meaningful Review ............................2525 B. Supplemental Considerations in Support of Substantive Review: Separation of Powers and the Rule of Noninquiry.....................................2528 VI. Proposing a Rule of Limited Inquiry to Provide Meaningful Judicial Review ............................2531 A. What Habeas Demands........................................... 2531 B. Assuaging Government Concerns Regarding Enhanced Judicial Review ...................................... 2532 C. A Framework for Review......................................... 2536 4. Foreign Affairs Reform and Restructuring Act of 1998, Pub . L. No. 105 - 277 , 112 Stat. 2681 - 761 ( 2006 ) (codified at 8 U .S.C. § 1231 note ( 2012 )). 31 . CAT, supra note 3; Foreign Affairs Reform and Restructuring Act of 1998, Pub . L. No. 105 - 277 , 112 Stat. 2681 - 761 ( 2006 ) (codified at 8 U .S.C. § 1231 note ( 2012 ) ); REAL ID Act of 2005, Pub . L. No. 109 - 13 , 119 Stat. 231 , 310- 11 (codified at 8 U.S.C. § 1252(a)(4) ( 2012 )). 32 . See infra Part III. A-B (discussing Boumediene , Munaf, and Garcia). 33 . 553 U.S. 723 ( 2008 ). 34 . 553 U.S. 674 ( 2008 ). 35 . See infra Part IV (examining the circuit split and discussing why Garcia's holding on jurisdiction is more persuasive). 36. See infra Part V.A-B (discussing how the relevant case law supports such jurisdiction) . 37 . See infra Part VI (discussing the proposal for limited judicial review). 38. See infra Part VI (discussing how the proposal accords with the history of habeas corpus and addresses the need for deference to the Executive Branch) . 39 . See John T. Parry, International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty , 90 B.U. L. REV . 1973 , 2019 ( 2010 ) (explaining habeas's use) . 40. Foreign Affairs Reform and Restructuring Act of 1998 , Pub. L. No. 105 - 277 , 112 Stat. 2681 - 761 ( 2006 ) (codified at 8 U .S.C. § 1231 note ( 2012 )). 42 . See Richard H. Fallon , Jr. & Daniel J. Meltzer , Habeas Corpus Jurisdiction , Substantive Rights , and the War on Terror, 120 HARV. L. REV. 2029 , 2101 ( 2007 ) (discussing the procedural rights of individuals challenging their detention or removal) . 43 . MICHAEL P. ALLEN , MICHAEL FINCH & CAPRICE L. ROBERTS , FEDERAL COURTS 868 ( 2008 ). See Boumediene , 553 U.S. at 725 (discussing the history of the writ of habeas corpus and corresponding judicial review ). 44 . See Trinidad y Garcia v. Thomas , 683 F.3d 952 , 956 ( 9th Cir . 2012 ) (per curiam) (detailing the contours of habeas as a remedy in England in the 1600s and 1700s) (citing INS v . St. Cyr , 533 U.S. 289 , 301 - 03 ( 2001 ))); Mironescu v. Costner , 480 F.3d 664 , 676 ( 4th Cir . 2007 ) (explaining that “[th]e historical decid[es] on the whole record whether there is substantial evidence to support 60. See Boumediene v . Bush , 553 U.S. 723 , 744 ( 2008 ) (citing Resolution of the New York Ratifying Convention (July 26 , 1788) (emphasis added)). 61. 1 EDWARD COKE, THE SECOND PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 54 (Williams S. Hein Co . 1986 ) (1642); see also Vladeck , supra note 48, at 975 (noting that “the habeas jurisdiction of King's Bench ran to any possible unlawful transfer, and not just to those rising claims of torture” ). 68 . Omar v. McHugh (Omar II) , 646 F.3d 13 , 26 -27 (D.C. Cir . 2011 ) (citing I.N.S. v. St . Cyr, 533 U.S. 289 , 301 ( 2001 )). 78 . Foreign Affairs Reform and Restructuring Act of 1998, Pub . L. No. 105 - 277 , 112 Stat. 2681 - 761 ( 2006 ) (codified at 8 U .S.C. § 1231 note ( 2012 )). 79 . See Trinidad y Garcia v. Thomas , 683 F.3d 952 , 956 - 57 ( 9th Cir . 2012 ) (per curiam) (discussing Congress's reasons for passing FARRA); Omar II, 646 F. 3d at 18 n.2 (“[I]t is undisputed that the FARR Act implements the Convention Against Torture .”); Edu v. Holder , 624 F.3d 1137 , 114 (9th Cir. 2010 ) (“Congress then implemented CAT in the Foreign Affairs Reform and Restructuring Act of 1998 .”); Pierre v. Attorney Gen., 528 F.3d 180 , 185 - 86 (3d Cir . 2008 ) (“[I]n 1998, Congress passed legislation to implement the United Restructuring Act ('the FARR Act' ).”); Pierre v. Gonzales , 502 F.3d 109 , 114 (2d Cir . 2007 ) (“To implement the CAT, Congress amended the immigration laws with the Foreign Affairs Reform and Restructuring Act of 1998 ('the FARR Act ').”); Cadet v. Bulger , 377 F.3d 1173 , 1180 ( 11th Cir . 2004 ) (“In order to implement Article 3 of CAT, Congress passed the Foreign Affairs Reform and Restructuring Act of 1998 ('the FARR Act' ).”); Huang v . Ashcroft , 390 F.3d 1118 , 1121 ( 9th Cir . 2004 ) (“Congress passed the Foreign Affairs Reform and Restructuring Act (the FARR Act) in 1998 to implement Article 3 of CAT .”). 80. Foreign Affairs Reform and Restructuring Act of 1998 , Pub. L. No. 105 - 277 , 112 Stat. 2681 - 761 ( 2006 ) (codified at 8 U .S.C. § 1231 note ( 2012 )). 81 . Id .; see also Vladeck, supra note 10 , at 1554 ( discussing FARRA ). Vladeck , supra note 10, at 1554. 83. Trinidad y Garcia v. Thomas , 683 F.3d 952 , 956 - 57 ( 9th Cir . 2012 ) (per 108. H.R. REP . No. 109 - 72 , at 176 ( 2005 ) (Conf . Rep.); see Gerald L. Neuman, On the Adequacy of Direct Review After the REAL ID Act of 2005 , 51 N.Y.U. SCH. L. REV . 133 , 137 n. 17 ( 2006 ) (discussing the legislative history ). 109 . See Munaf v. Geren , 553 U.S. 674 , 692 ( 2008 ) (explaining the challenge to military detention under FARRA); Trinidad y Garcia v . Thomas , 673 F.3d 952 , 956 - 57 ( 9th Cir . 2012 ) (per curiam) (explaining the extradition challenge under FARRA) . 113 . Authorization of Use of Military Force, Pub. L. No. 107 - 40 , 115 Stat. 224 ( 2001 ) (codified at 50 U .S.C. § 1541 ( 2012 )). 114 . Boumediene v. Bush , 553 U.S. 723 , 733 ( 2008 ) (citing S.J. Res . 23 , 107th Cong . ( 2001 ) (enacted )). 115 . Guantanamo Bay Naval Base (Cuba) , N.Y. TIMES , Apr. 25 , 2011 , uantanamobaynavalbasecuba/index.html, (last visited Oct . 10 , 2013 ) ( on file with the Washington and Lee Law Review) . 116 . Jennifer L. Milko , Separation of Powers and Guantanamo Detainees: 2000 ) (same) . See generally Stephen I. Vladeck , Comment, Non- Self-Executing Treaties and the Suspension Clause After St . Cyr; Ogbudimkpa v. Ashcroft , 113 YALE L.J. 2007 , 2008 - 11 ( 2004 ) (discussing the rationale behind the court of habeas jurisdiction) . 201 . Omar II , 646 F.3d at 17 (emphasis added) . 202 . Id. at 17-18; Mironescu v. Costner , 480 F.3d 664 , 674 - 76 ( 4th Cir . 2007 ) (holding that FARRA only allows claims by immigration detainees facing a final order of removal); Munaf, 553 U.S. at 703 n.6 (explaining that “claims under the FARR Act may be limited to certain immigration proceedings”) . 203 . Omar v. McHugh (Omar II) , 646 F.3d 13 , 21 -22 (D.C. Cir . 2011 ). 204 . Id. at 22- 23 . 205 . See id. at 22 (“REAL ID Act merely confirmed what the FARR Act in the receiving country.”); REAL ID Act of 2005, Pub . L. No. 109 - 13 , § 1252(a)(4 ), 119 Stat. 231 , 310 - 11 (codified at 8 U.S.C. § 1252(a)(5) ( 2012 )). 206 . Omar II , 646 F.3d at 18. 207. See infra notes 208-09 (providing a summary of Mironescu) . 208 . Mironescu v. Rice, No. 05 - 683 , 2006 WL 167981, at *1 ( M.D.N.C. Jan . 20, 2006 ). 209 . See Mironescu v. Costner , 480 F.3d 664 , at 673- 77 ( 4th Cir . 2007 ) This [Section 2242(d)] language plainly conveys that although courts may consider or review CAT or FARR Act claims as part of their review of a final removal order, they are otherwise precluded from considering or reviewing such claims. As Mironescu presents his claim as part of his challenge to extradition, rather than removal, § 2242(d) clearly precluded the district court from exercising jurisdiction . 210. See supra note 25 (discussing the circuit split) . 211 . See infra Part IV.B (discussing customary international law ). 212 . See Trinidad y Garcia v. Thomas , 683 F.3d 952 , 956 ( 9th Cir . 2012 ) (per curiam) (holding that the court does possess jurisdiction to entertain Trinidad's habeas petition: “Neither the REAL ID Act (8 U.S.C. § 1252(a)(4)) nor FARRA (8 U.S.C. § 1231 note) repeals all federal habeas jurisdiction over Trinidad y Garcia's claims” ). 213 . Id. at 956- 57 . 214 . Id . 215 . Id . (citing Nadarajah v . Gonzales , 443 F.3d 1069 , 1076 ( 9th Cir . 2006 )). 216 . Id . 217 . See 2A SUTHERLAND STATUTORY CONSTRUCTION § 46:1 (7th ed. 2007 ) American Citizens From Torture Beyond America's Borders, 15 YALE HUM . RTS. & DEV . L.J. 19 , 41 ( 2012 ) (discussing the way courts interpret a law's intentions to achieve the spirit of the law ). 218 . See supra note 217 and accompanying text (discussing rules of statutory interpretation) . 219. See 2A SUTHERLAND STATUTORY CONSTRUCTION, supra note 217 , § 45 : 2 217, at 41 (discussing the imperfections created by drafters in crafting statutes ). 220 . Magnusson, supra note 217, at 41 ( discussing judicial use of canons of construction as means to ensure they preserve the intent of a law) . 221. 2A SUTHERLAND STATUTORY CONSTRUCTION, supra note 217 , § 45 : 5 (citing Garcia v . United States , 469 U.S. 70 , 75 ( 1984 )). 222 . 136 CONG. REC. 36 , 198 ( 1990 ) ; see supra note 91 (discussing reasons for FARRA's passage) . 242 . See Cadet v. Bulger , 377 F.3d 1173 , 1182 - 83 ( 11th Cir . 2004 ) (finding jurisdiction); Ogbudimkpa v . Ashcroft , 342 F.3d 207 , 215 - 18 ( 3d Cir . 2003 ) (same); Saint Fort v . Ashcroft , 329 F.3d 191 , 200 - 02 ( 1st Cir . 2003 ) (same); Wang v . Ashcroft , 320 F.3d 130 , 142 ( 2d Cir . 2003 ) (same); Cornejo Barreto v . Seifert (Cornejo Barreto I ), 218 F.3d 1004 , 1016 n. 13 ( 9th Cir . 2000 ) (same) . But see Mironescu v. Costner , 480 F.3d 664 , 676 ( 4th Cir . 2007 ) (finding jurisdiction to be stripped); Cornejo Barreto v . Seifert (Cornejo Barreto II) , 379 F.3d 1075 , 1086 ( 9th Cir . 2004 ), vacated as moot, 389 F.3d 1307 ( 9th Cir . 2004 ) (en banc) (same) . 243 . Omar II , 646 F.3d at 25 - 29 . 244 . See supra Part IV.B (arguing for the circuit split to be resolved in favor of the Garcia conclusion) . 245 . See supra Part IV.A-B (laying out the circuit split and the argument for why Garcia comes to the best conclusion ). 246 . See infra Part V (arguing that courts need to review the merits of


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Kristin E. Slawter. Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances, Washington and Lee Law Review, 2018,