Fear of Torture

Fear of Torture

Extradition of Fugitive Alleging Fear of Torture in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On February 28, 2011, the U.S. Court of Appeals for the Ninth Circuit granted the government's petition for rehearing en banc of an appeal from the district court's 2009 grant of habeas corpus relief in Trinidad y Garcia v. Benov. 636 F.3d 1174 (9th Cir. 2011). Trinidad argued that his extradition to the Philippines would violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”). For previous developments in the case, see this world legal encyclopedia in relation with the year 2008 at 57–64, World Encyclopedia of Law 2009 at 50–51, and World Encyclopedia of Law 2010 at 45-49. The United States filed its en banc brief in the Court of Appeals for the Ninth Circuit on April 1, 2011, arguing that the Secretary of State's determination to extradite was not justiciable. The U.S. brief, excerpted below (with footnotes and citations to the record in the case omitted), is available in full at (internet link) state.gov/s/l/c8183.htm.

Developments

There should be no doubt that, in light of the Torture Convention and its implementation through the FARR Act [the Foreign Affairs Reform and Restructuring Act of 1988] and State Department regulations, the Secretary of State will not surrender a fugitive for extradition if torture is more likely than not to occur in the receiving state. We are thus not arguing that the Secretary has the discretion to surrender a fugitive who likely will be tortured, even if particular foreign policy interests at the time might be served.

This case is therefore not about whether the United States may surrender someone for extradition when it believes he is more likely than not to be tortured; it may not do so. Rather, this case is about whether, where appropriate policies and procedures are in place and the Secretary has followed them in determining that a [particular] fugitive is not likely to be tortured, courts may not inquire into that decision—a decision that often depends on complex, delicate, and confidential judgments concerning the state of affairs in foreign countries and multiple foreign relations considerations.

Details

For these very reasons, this Court has held in the past that the Rule of Non-Inquiry governs even when humanitarian claims are raised in attempts to stop extraditions. These precedents have not been overruled by Congress through the FARR Act or the REAL ID Act. To the contrary, Congress' enactments since the United States ratified the Torture Convention have reaffirmed that the Rule of Non-Inquiry governs attempts to attack in the courts the Secretary's extradition surrender determinations.

A contrary ruling that allowed judicial review of extradition surrender determinations made by the Secretary of State would impose a substantial cost. There is a significant public interest in ensuring that the United States abides by its own extradition treaty obligations so that these treaties can be effectively implemented. Thus, in denying a stay of extradition in another case, this Court explained that “the public interest will be served by the United States complying with a valid extradition application * * * under the treaty,” because such compliance “promotes relations between the two countries, and enhances efforts to establish an international rule of law and order.” Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986).

More about the Issue

A timely extradition process is a necessary aspect of a functioning extradition relationship between two nations. Excessive delay can jeopardize a foreign prosecution and undercut the core objective of extradition relationships to ensure that fugitives are brought to justice in the country in which their criminal conduct occurred. The United States can reasonably expect foreign governments to honor their extradition obligations to the United States only if it also honors its own such obligations.

Trinidad is accused of a serious, but straightforward, kidnapping offense in a Philippine court, yet the extradition process here has been pending for more than four years. It is therefore important that his extradition be carried out promptly, and all the more so given that the Secretary has concluded that Trinidad can be extradited consistent with the Torture Convention and U.S. law. If a relatively uncomplicated extradition request like this one becomes bogged down in U.S. courts for such a lengthy period, it will become apparent to the U.S. treaty partners that more complex requests may be futile or become so entangled in the courts that they become moot before the extradition can be carried out.

Extradition of Fugitive Alleging Fear of Torture in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Such mootness has occurred twice recently with regard to extraditions that were severely delayed by litigation involving Torture Convention claims. This is what happened in Cornejo where an extradition to face murder charges in Mexico was mooted because the U.S. extradition proceedings took so long that the prosecution of the underlying criminal charges became time-barred in Mexico. See Cornejo-Barreto v. Siefert, 389 F.3d 1307 (9th Cir. 2004). And in Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007), cert. dismissed, 128 S. Ct. 976 (2008), the U.S. extradition proceedings took so long that the entire possible Romanian sentence for the fugitive had expired before judicial review was completed and the case became moot, so that the Supreme Court granted the parties' request to dismiss the petition for certiorari.

More about Extradition of Fugitive Alleging Fear of Torture

Most recently, in another extradition proceeding in this Circuit, the Government was able to complete an extradition to Thailand, despite the existence of Torture Convention claim, only because the district court ruled that the fugitive had not made a sufficient showing of likely torture, and this Court denied a request to enjoin the surrender pending appeal. See Prasoprat v. Benov, No. 09-56067 (9th Cir. March 10, 2010) (order denying stay of extradition). Even in that circumstance, the extradition took approximately nine years to effectuate.

These problems in the extradition process will be compounded if a fugitive can extend an already protracted and multi-layered extradition process by triggering a new round of judicial review following any decision by the Secretary involving torture risk allegations. Foreign governments will increasingly conclude that the U.S. court system renders the United States essentially incapable of complying in a timely and meaningful way with its extradition treaty obligations. The interest and ability of the United States to obtain reciprocal cooperation by its treaty partners would thereby be seriously and irreparably damaged by such a ruling.

Resources

See Also

  • International Criminal Law
  • Extradition
  • Mutual Legal Assistance

Resources

Notes and References

  1. Editor's note: The treaty entered into force April 12, 2012.

Resources

Notes and References

  1. Editor's note: The treaty entered into force April 12, 2012.

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *