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
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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.
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),
(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
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.
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,
(3d Cir. 2008)
(detailing Khouzam’s claims of torture if removed to Egypt);
Mironescu v. Costner, 480 F.3d 664, 667
(4th Cir. 2007)
claims of torture if extradited to Romania).
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.
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
19. See infra note 25 (discussing the circuit split over federal habeas
20. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 957
(9th Cir. 2012)
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
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)
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)).
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
II. Habeas Corpus and the Domestic Statutory Bases for Detainee
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
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
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
AND TO EMPIRE (2010
49. See Boumediene, 553 U.S. at 743 (discussing the source of habeas’s
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
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
54. U.S. CONST. art. I, § 9, cl. 2.
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
(per curiam) (No. 12-6615),
http://www.lawfareblog.com/wpcontent/uploads/2012/11/Trinidad-y-Garcia-Cert-Amicus.pdf [hereinafter Brief of
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
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
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).
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).
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
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
75. See supra note 3 and accompanying text (discussing the
implementation of CAT).
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
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
(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
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/
(last visited Mar. 7, 2013)
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
(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
(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
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).
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
Act103 to streamline judicial review of immigration cases.104 The
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)).
107. Id.; see Vladeck, supra note 10, at 1555 (discussing the effects of the
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
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
The D.C. Circuit further reas
oned that the 2005
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
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
224. Trinidad y Garcia v. Thomas, 683 F.3d 952, 986
(9th Cir. 2012)
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.
(“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
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–
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.”).
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
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)
(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
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.
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
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)
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
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
274. See id. at 23–24 (explaining the various understandings of the rule of
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
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
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
280. See id. at 23 n.7 (comparing the rule of noninquiry to the old English
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
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
legitimate concerns of the executive branch with the need for
judicial scrutiny.284 It is toward this goal that this Note turns
VI. Proposing a Rule of Limited Inquiry to Provide Meaningful
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
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)
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
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
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
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
(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
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
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
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
(9th Cir. 2012)
(per curiam) (No. 09-56999) [hereinafter Garcia Brief for
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
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
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
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,
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)
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
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.
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)
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)
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