Promises Not to Torture: Diplomatic Assurances in U.S. Courts

Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
ASIL Discussion Paper Series
DECEMBER 2008
Author:
Ashley Deeks

Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
Author:
Ashley Deeks

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TABLE OF CONTENTS
ExEcutivE Summary ................................................................................................................................................ 1
i. introduction ........................................................................................................................................................ 3
ii. thE PrinciPlE of non-rEfoulEmEnt and thE uSE of aSSurancES .................................................... 5
A. Non-refoulement ........................................................................................................................ 5
B. The use of assurances ................................................................................................................ 8
iii. u.S. GovErnmEnt uSE of diPlomatic aSSurancES ............................................................................10
A. Extradition ...................................................................................................................................10
B. Removal .........................................................................................................................................15
C. Transfers of detainees from Guantanamo Bay .............................................................22
D. Wartime transfers of detainees ...........................................................................................27
E. Conclusion ....................................................................................................................................34
iv. othEr difficultiES with thE uSE of aSSurancES................................................................................43
A. Human rights criticisms of diplomatic assurances .....................................................43
B. Congressional concerns about assurances ....................................................................47
v. EuroPEan and canadian uSES of diPlomatic aSSurancES ..............................................................49
A. Introduction: key differences ...............................................................................................49
B. Deportation .................................................................................................................................50
C. Extradition ....................................................................................................................................66
D. Wartime transfers of detainees ...........................................................................................69
E. Conclusion ....................................................................................................................................70
vi. way ahEad .......................................................................................................................................................71
A. Accounting for the differences ............................................................................................71
B. Options ..........................................................................................................................................72
vii. concluSion .....................................................................................................................................................79

ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts EXECUTIVE SUMMARY
Consider a foreign national in U.S. removal proceedings. The U.S. government believes that
he is a leader of a foreign terrorist organization, and thus fears releasing him onto U.S. territory,
but lacks enough evidence to prosecute him. He is from a country with a horrible human
rights record, and the United States thinks it likely that he would be tortured if sent home.
And yet it is unclear whether the United States has the authority to hold him in detention for
an extended period of time, given unanswered questions about what the U.S. Constitution
allows. The United States thus has to grapple with three unappealing options: releasing the
person onto U.S. soil; returning him to his country, where he is likely to face torture; or trying
to hold him in indefinite detention.
In an effort to navigate among these three imperatives – no indefinite detention, no transfers
to torture, and no outright releases into the detaining state’s territory – the United States,
Canada, and European states often have relied on diplomatic assurances from a state willing
to receive a particular individual being removed that it will treat the individual humanely
once it takes custody of him. These states also use assurances in the context of extradition,
and the United States has relied on assurances in transferring individuals out of Guantanamo
and in renditions. In Afghanistan, certain states contributing to NATO’s International
Security Assistance Force (“ISAF”) have concluded arrangements with the Islamic Republic of
Afghanistan that serve as written assurances that the Afghan government will treat humanely
those war-time detainees transferred from ISAF.
The use of diplomatic assurances has not been without difficulties. In particular, the United
States repeatedly has found itself in litigation about custodial transfers and the use of assurances.
In at least six scenarios, individuals about to be transferred from the United States have
turned to U.S. courts to try to block their transfers: extradition cases, removal cases, transfers
of detainees from Guantanamo Bay, a transfer of a prisoner of war to a NATO ally, transfers
of detainees from the U.S. contingent of the Multi-National Forces – Iraq (“MNF-I”) to the
Iraqi government, and transfers of detainees from U.S. forces to the Afghan government. In
this litigation, the U.S. government consistently has argued that it is the role of the Executive
Branch, not the courts, to assess the humanitarian issues that may arise in the context of
these transfers, and accordingly has declined to show the courts any diplomatic assurances it
obtains. Courts now are pushing back in each scenario, even when the legal basis to do so is
weak, and the U.S. government has lost a number of cases.
The United States faces two other problems with the use of assurances. First, a number of
human rights groups and international organizations have criticized harshly the use of assurances,
raising questions about their reliability and citing cases in which they allege that assurances
have failed to prevent mistreatment. Second, members of Congress have drafted several
THE AMERICAN SOCIE T Y OF INTERNATIONAL LAW |

ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts EXECUTIVE SUMMARY
bills that would prohibit the United States from using these assurances, though Congress has
not enacted these bills. These entities have put pressure on the Executive’s use of assurances,
but have not offered viable alternatives to their use. Given the lack of other realistic options,
states will almost certainly keep using assurances. But the status quo is not appealing.
By way of comparison, the article explores how courts in European countries and Canada are
handling similar cases involving diplomatic assurances. These states have established much
more expansive judicial review of transfers and assurances, but this type of review comes at
a cost. The article concludes that this approach has not produced an alternative system that
would work well in the United States.
Instead, the article proposes that the Executive Branch work with Congress to develop limited
judicial review of certain Executive Branch decisions to transfer and to clearly prohibit review
in other circumstances. This approach would address the three difficulties described above,
pre-empt a clash among the three branches of government, and preserve and affirm the utility
of diplomatic assurances while increasing the transparency of the process.
Part II of the article explains the principle of non-refoulement and how states have used diplomatic
assurances to bring themselves into compliance with that principle. Part III describes
the different situations in which the United States has used assurances to overcome torture
concerns and the litigation that has resulted. This part describes the U.S. government’s consistent
position in litigation that the Executive Branch is the appropriate entity to review likely
treatment in the face of torture claims, but shows that courts are becoming increasingly skeptical
of the argument and suggests that the status quo is not sustainable. Part IV examines two
other hurdles the United States faces in using assurances: draft Congressional legislation that
would prohibit the use of assurances, and adverse reputational effects that flow from strong
criticisms from human rights groups about the use of assurances. Part V explores an alternative
approach to these transfers – de novo judicial review – as is used in European states and
Canada, and discusses the advantages and disadvantages to that approach.
Part VI offers possible explanations for the differences in approach among the United States,
Canada, and European states. It also sets out four options for policymakers who are considering
how to manage the issues of transfers in the face of torture claims and the use of assurances.
These options are to: maintain the status quo; forego the use of assurances entirely; adopt
full judicial review of transfers; or establish limited judicial review of the transfer process.
Part VI explains why pursuing limited judicial review of the transfer process is the best way to
increase transparency and preserve the use of assurances as an important tool while minimizing
the costs that unfettered judicial review would impose.
THE AMERICAN SOCIE T Y OF INTERNATIONAL LAW |

ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
I. Introduction
Consider a foreign national in U.S. removal proceedings. The U.S. government believes that
he is a leader of a foreign terrorist organization, and thus fears releasing him onto U.S. territory,
but lacks enough evidence to prosecute him. He is from a country with a horrible human
rights record, though, and the United States thinks it likely that he would be tortured if sent
home. And yet it is unclear whether the United States has the authority to hold him in detention
for an extended period of time, given unanswered questions about what the U.S. Constitution
allows. The United States thus has to grapple with three unappealing options: releasing
the person onto U.S. soil; returning him to his country, where he is likely to face torture; or
trying to hold him in indefinite detention.
Guantanamo raises the same three-pronged dilemma. The United States has been roundly
criticized for detaining individuals at Guantanamo Bay for an apparently indefinite time period.
At the same time, human rights groups insist (and it is U.S. policy) that the United States
not transfer any detainee to a state where he is likely to be tortured. Some of the individuals
at Guantanamo are from Saudi Arabia, Afghanistan, Yemen, and Algeria – states generally
thought to have poor human rights records. Further, there is virtually no public support for
the idea that the United States should release the detainees onto American soil. What should
the United States do?
In an effort to navigate among these three imperatives – no indefinite detention, no transfers
to torture, and no outright releases into the detaining state’s territory – the United States, Canada,
and European states often have relied on diplomatic assurances from a state willing to
receive a particular individual being removed that it will treat the individual humanely once
it takes custody of him. These states also use assurances in the context of extradition, and
the CIA has relied on assurances in renditions. In Afghanistan, certain states contributing to
NATO’s International Security Assistance Forces (“ISAF”) have concluded arrangements with
the Islamic Republic of Afghanistan that serve as written assurances that the Afghan government
will treat humanely those war-time detainees transferred from ISAF.
However, the use of diplomatic assurances has not been without difficulties. In particular,
the United States repeatedly has found itself in litigation about custodial transfers and the use
of assurances. In at least six scenarios, individuals about to be transferred from the United
States have turned to U.S. courts to try to block their transfers: extradition cases, removal
cases, transfers of detainees from Guantanamo Bay, a transfer of a prisoner of war to a NATO
ally, transfers of detainees from the U.S. contingent of the Multi-National Forces – Iraq
(“MNF-I”) to the Iraqi government, and transfers of detainees from U.S. forces to the Afghan
THE AMERICAN SOCIE T Y OF INTERNATIONAL LAW |

ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
government. In this litigation, the U.S. government consistently has argued that it is the role
of the Executive Branch, not the courts, to assess the humanitarian issues that may arise in the
context of these transfers, and accordingly has declined to show the courts any diplomatic assurances
it obtains. Courts now are pushing back in each scenario, even when the legal basis
to do so is weak, and the U.S. government has begun to lose cases.
The United States faces two other problems with the use of assurances. First, a number of
human rights groups and international organizations have criticized harshly the use of assurances,
raising questions about their reliability and citing cases in which they allege that assurances
have failed to prevent mistreatment. Second, members of Congress have drafted several
bills that would prohibit the United States from using these assurances, though Congress
has not enacted these bills. Both of these entities have put pressure on the Executive’s use of
assurances, but neither has offered viable alternatives to their use. Given the lack of other
realistic options, states will almost certainly keep using assurances. But the status quo is not
appealing.
By way of comparison, the article explores how courts in European countries and Canada are
handling similar cases involving diplomatic assurances. These states have established much
more expansive judicial review of transfers and assurances, but this type of review comes at
a cost. The article concludes that this approach has not produced an alternative system that
would work well in the United States.
Instead, the article proposes that the Executive Branch work with Congress to develop limited
judicial review of certain Executive Branch decisions to transfer and to clearly prohibit review
in other circumstances. This approach would address the three difficulties described above,
pre-empt a clash among the three branches of government, and preserve and affirm the utility
of diplomatic assurances while increasing the transparency of the process.
Part II of the article explains the principle of non-refoulement and how states have used
diplomatic assurances to bring themselves into compliance with that principle. Part III
describes the different situations in which the United States has used assurances to overcome
torture concerns and the litigation that has resulted. This part describes the U.S. government’s
consistent position in litigation that the Executive Branch is the appropriate entity to review
likely treatment in the face of torture claims, but shows that courts are becoming increasingly
skeptical of the argument and suggests that the status quo is not sustainable. Part IV
examines two other hurdles the United States faces in using assurances: draft Congressional
legislation that would prohibit the use of assurances, and adverse reputational effects that flow
THE AMERICAN SOCIE T Y OF INTERNATIONAL LAW |

ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
from strong criticisms from human rights groups about the use of assurances. Part V explores
an alternative approach to these transfers – de novo judicial review – as practiced by European
states and Canada, and discusses the advantages and disadvantages to that approach.
Part VI offers possible explanations for the differences in approach among the United States,
Canada, and European states. It also sets out four options for policymakers who are considering
how to manage the issues of transfers in the face of torture claims and the use of assurances.
These options are to: maintain the status quo; forego the use of assurances entirely; adopt
full judicial review of transfers; or establish limited judicial review of the transfer process.
Part VI explains why pursuing limited judicial review of the transfer process is the best way to
increase transparency and preserve the use of assurances as an important tool while minimizing
the costs that unfettered judicial review would impose.
II. The Principle of Non-Refoulement and the Use of Assurances
States traditionally have had broad latitude to craft their immigration and national security
policies. However, most states have accepted certain limitations on deporting or expelling
people from their territory. The willingness of states to accept such limitations reflects a core
tenet of human rights law: ensuring that individuals are not subjected to certain types of treatment
is of concern to all states, not just to the individuals’ states of nationality.
A. Non-refoulement
1. Convention Relating to the Status of Refugees
The principle of “non-refoulement” flows from two general sources of law. The 1951 Convention
Relating to the Status of Refugees (“Refugee Convention”) is one early source of the
concept; that treaty prohibits states parties from expelling or returning a refugee to territories
where his or her life or freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion. 2
Article 1F of the Refugee Convention states, “The provisions of this Convention shall not apply
to any person with respect to whom there are serious reasons for considering that: (a) he
has committed a crime against peace, a war crime, or a crime against humanity, as defined in
the international instruments drawn up to make provision in respect of such crimes; (b) he
has committed a serious non-political crime outside the country of refuge prior to his admission
to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
principles of the United Nations.” 3 Thus, an individual who engages in particular types of
behavior is not entitled to be considered a refugee for purposes of the Refugee Convention.
The Convention also contains provisions governing when states parties may expel or return
individuals from their territory even if they are refugees under the Convention. Article 33
(entitled “Prohibition of Expulsion or Return (‘Non-Refoulement’)”) states:
1. No Contracting State shall expel or return a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of that country. 4
In the words of a United Kingdom (“UK”) Special Immigration Appeals Commission, “Article
33(2) permits someone to be removed notwithstanding that he would be persecuted on
return, in circumstances which may overlap with those in Article 1F(c).” 5 Thus, the terms of
Refugee Convention make clear that its provision on non-refoulement is not absolute.
2. Convention Against Torture
The term “non-refoulement” also encompasses obligations that flow from other treaties, including
the 1984 Convention Against Torture (“CAT”), which prohibits states parties from returning,
expelling, or extraditing individuals to countries where there are substantial grounds
for believing that the individuals would be subjected to torture. 6 This article focuses on this
form of non-refoulement.
Article 3 of the CAT provides:
1. No 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.
2. For the purpose of determining whether there are such grounds, the competent authorities
shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights. 7
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
Unlike the Refugee Convention, the CAT’s non-refoulement obligation is absolute: a state
cannot exclude anyone from the provision’s protection, even if he poses a security threat or
has committed a criminal act.
The primary European human rights treaty, the European Convention for the Protection of
Human Rights and Fundamental Freedoms (“ECHR”), contains a provision the plain language
of which only prohibits the Contracting States from engaging in torture or inhuman or
degrading treatment themselves. 8 However, the European Court of Human Rights (“ECtHR”)
has interpreted that provision to impose a non-refoulement obligation on the parties. 9
There are long-standing disagreements among states about the breadth of non-refoulement
obligations, including the types of treatment to which the obligations extend and the substantive
standard for determining the likelihood of mistreatment after transfer. For instance,
in giving its advice and consent to the CAT, the U.S. Senate included an understanding that
the phrase “where there are substantial grounds for believing that he would be in danger of
being subjected to torture” in Article 3 means “if it is more likely than not that he would be
tortured.” 10 Other parties to the CAT believe that this understanding makes it easier for the
United States to transfer someone.
Similarly, the United States consistently has taken the view that Article 3 does not impose legal
obligations on the United States with respect to individuals who are outside U.S. territory,
although it has stated that, as a matter of policy, it will not transfer persons to countries where
it is more likely than not that they will be tortured. 11 Other states and international bodies
assert that Article 3 of the CAT applies extraterritorially, and states parties to the ECHR have
non-refoulement treaty obligations that extend beyond torture to encompass inhuman or
degrading treatment too.
Some academics and the International Committee of the Red Cross (“ICRC”) take a broad
view of the situations in which non-refoulement legally attaches – not just to expulsion,
returns, or extradition but to any transfers of individuals from the custody of one state to
another. The ICRC has stated that this principle attaches to “all forms of transfer of a person
to an authority if there is a risk that the person will face ill-treatment (also known as non-refoulement).”
12 That would include, for instance, the transfer by the United States of detainees
of Afghan nationality held in Afghanistan to the Government of Afghanistan (or detainees of
Iraqi nationality held in Iraq to the Government of Iraq). Others have concluded that nonrefoulement
is a customary international law (“CIL”) norm embedded in the CIL prohibition
against torture, and assert that non-refoulement obligations attach in any situation in which
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
“the act in question would be attributable to the State whether this occurs, or would occur,
within the territory of the State or elsewhere.” 13 To date, the United States has not agreed with
this view; among other reasons, this interpretation would extend the application of the CAT
and Refugee Convention extraterritorially in a way the United States consistently has rejected.
In Part III, this article discusses whether the United States has assumed non-refoulement
obligations (as either a matter of law or policy) in particular scenarios.
B. The use of assurances
1. Triggers for use of assurances
In the face of a non-refoulement obligation under the CAT, a state must evaluate the likelihood
that a person it wishes to transfer to another state will be tortured (or, for parties to the
ECHR, subjected to inhuman or degrading treatment). Even if a transferring state thinks that
the receiving state is more likely than not to mistreat the person, the exercise may not be over.
As noted above, a transferring state often has good reasons to conclude that transferring the
person back to his country of nationality is the best of several bad options, which include indefinite
detention and the release of a dangerous person into the transferring state’s territory.
The transferring state therefore may try to obtain specific assurances from the receiving state
about the treatment the latter would provide the person, to lower the likelihood of mistreatment
below the level that would prohibit the transferring state from effecting the transfer.
2. Form and substance of assurances
Diplomatic assurances may take any of a number of forms. They often are recorded in
diplomatic notes, exchanges of letters, or memoranda of understanding (“MOUs”), but may
be given orally. Some states make public the assurances they receive; others do not. Most assurances
do not take the form of agreements that are legally binding on an international level;
instead, like many MOUs between states on other topics, they are viewed as political commitments
between the states.
The substance of the assurances varies. In the broadest sense, assurances reflect a commitment
by a receiving state that the receiving state will treat an individual in particular way.
Assurances may also provide commitments about where the person physically will be located
after he is transferred. The assurances might provide that the receiving state intends to hold
the person in security detention; that it intends to prosecute the person; or that it intends to
release the person (often after initial questioning). The assurances may include commitments
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
that a particular element of the receiving state will hold an individual – for example, that the
person will be held in a Ministry of Justice facility. This often will be the case when different
ministries have different reputations for how they treat people in their custody, or have facilities
of different qualities.
The identity of the official providing the assurances is important. For instance, commitments
from a low-level officer in the receiving government who lacks decision-making authority
will provide little comfort to a transferring government. Often transferring governments will
seek assurances at the highest level of government (including the president, prime minister,
or cabinet-level minister). There is, of course, a risk that the person providing the assurance
will leave office shortly after the exchange, but the understanding usually is that the person
is making the undertaking on behalf of his government more generally, not only on his own
behalf.
Some assurances build in mechanisms by which the condition of transferred detainees will
be monitored. These mechanisms range from guaranteed access by the transferring state’s
diplomats to the detention facility; to the selection of a neutral, independent body to visit the
detainee and monitor his health and trial; to giving the detainee’s family contact numbers for
the embassy of the transferring state. Most assurances do not contain time limits, although
some of the UK’s recent MOUs establish that the monitoring body has a three-year commitment
to visit each detainee.
Obtaining assurances often is a difficult and sensitive diplomatic task. Some potential receiving
states take offense at a request for assurances because the request implies that the transferring
state does not trust that the receiving state automatically will treat individuals in its
territory or custody appropriately. A receiving state may point to its treaty obligations under
the CAT and ask the transferring state why it needs to repeat those commitments in a bilateral
context. States may also be concerned that giving assurances will be seen as conceding that
they engaged in torture in the past. Yet other receiving states view a request for assurances as
an infringement on sovereignty, taking the view that it is up to a state how it treats its nationals,
within the framework of the treaty obligations it has assumed.
Because assurances are difficult to obtain, because obtaining assurances can require the United
States to expend considerable diplomatic capital, and because there are only limited instances
in which the government concludes that a person is more likely than not to be tortured after
transfer, the United States has relied on assurances in a relatively small percentage of cases.
Nevertheless, the government is using assurances in an increasing variety of situations.
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
III. U.S. Government Use of Diplomatic Assurances
Diplomatic assurances appear to have originated in the extradition context, a process in which the Department
of State determines when to seek assurances and whether the assurances it obtains are sufficient
to overcome torture concerns. Assurances also have been used for some time in the immigration context;
the Secretary of State obtains the assurances and the Department of Homeland Security assesses, with
State, their sufficiency. The use of assurances in the context of returns of detainees from Guantanamo Bay
obviously began in the past few years, with the Departments of Defense, State, and Justice all playing a
role in evaluating the quality of the assurances. Likewise, the United States, European states, and Canada
have started to use assurances in the context of the ongoing armed conflict in Afghanistan. Finally, the
United States has used assurances in the context of renditions of detainees to third countries. 14
The following examples illustrate the consistency of the U.S. litigating position across transfer
scenarios. For many years, the United States has argued that the Executive Branch, not the
courts, is the appropriate entity to assess any humanitarian issues that may arise in the context
of these transfers. Accordingly, the United States has declined to show to the courts any diplomatic
assurances it obtains.
These examples also illustrate, however, that some courts recently have begun to push back,
even when the legal basis to do so is weak. As a result, the U.S. government has begun to lose
some cases. Whatever the reasons – ambiguous legislation, judicial perceptions about unchecked
executive decision-making, or a heightened sensitivity to detainee treatment issues
– courts have reached widely varying conclusions about their roles in reviewing humanitarian
issues and diplomatic assurances, both within sets of cases and across sets of cases. It is not
surprising to find a disparity among decisions across sets of cases, given that different bodies
of law govern different factual scenarios, but this may not make sense as a policy matter, given
that the government’s and transferee’s equities are similar in each situation. These recent
losses in court, coupled with the problems discussed in Part IV, suggest that maintaining the
status quo is not ideal.
A. Extradition
Along with removal, extradition is the most conventional context in which the U.S. government
uses diplomatic assurances and is a good place to start the analysis. First, because the
United States has used diplomatic assurances for a number of years in this context, courts
examining assurances in other contexts have looked to extradition case law for guidance. 15
Second, the United States has a clear and uncontested legal obligation not to extradite someone
from the United States where it is more likely than not that the person will face torture.
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ASIL Discussion Paper
DECEMBER 2008
Author:
Ashley Deeks
Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
Third, U.S. law governing extraditions anticipates the use of assurances. Fourth, the first case
in which a court attempted to review a transfer in the face of humanitarian issues was an
extradition case.
While the Executive Branch has acknowledged that it has sought assurances in extradition
cases generally, it typically has declined to announce whether it has sought assurances in specific
extradition cases and has rarely revealed the contents of such assurances. An examination
of diplomatic assurances in the extradition context therefore must remain somewhat abstract,
but provides examples of courts’ traditional hands-off approach to humanitarian claims
related to transfers, as well as of several recent cases questioning that traditional approach.
1. Legal framework
a. Extradition statutes and common law
A basic sense of the extradition process is important to understanding when and how diplomatic
assurances may be used in extradition. U.S. extradition law prescribes a role both for
U.S. courts and for the Secretary of State in the extradition process. A foreign government
with which the United States has an extradition treaty makes a request that the United States
extradite a fugitive in the United States who is wanted for prosecution or to serve a sentence in
the requesting state. The Department of State determines whether the request falls within the
applicable treaty and refers the matter to the Department of Justice, which reviews and sends the
request to the U.S. Attorney in the district in which the fugitive is located.
Once the government obtains an arrest warrant, locates, and arrests the person, 18 U.S.C. §
3184 confers jurisdiction on federal justices, judges, or authorized magistrates to conduct
an extradition hearing to determine whether the request meets treaty and statutory requirements,
whether there is probable cause to believe that the fugitive committed the offense cited
in the extradition request, and whether therefore to certify that a person is extraditable. 16
The fugitive cannot appeal directly from that determination, but may attack that decision
collaterally by petitioning for a writ of habeas corpus. 17 Habeas review of a decision to certify
someone as extraditable is limited to: (1) whether the extradition court had jurisdiction to
conduct the proceeding and jurisdiction over the individual sought; (2) whether the extradition
treaty was in force and the crime fell within the treaty’s terms; and (3) whether there was
probable cause that the individual committed the crime. 18
Once a court has found the person extraditable, the Secretary of State, in her discretion, may
order the person extradited. 19 She may, of course, decline to extradite, or she may decide to
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Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
extradite the person subject to conditions. 20 In making her decision, the Secretary considers a
range of factors affecting the individual fugitive and foreign relations more generally, and will
take into account humanitarian claims and applicable treaties, statutes, and policies regarding
appropriate treatment. 21
Courts traditionally have declined to consider issues raised by the fugitive regarding the
insufficiency of the criminal procedures in the requesting state, the overall fairness of the
requesting state’s system, or potential mistreatment by the requesting state on his return. This
principle is referred to as the “rule of non-inquiry.” 22 As one court recently stated, “We have
long adhered to the rule of non-inquiry -- that it is the role of the Secretary of State, not the
courts, to determine whether extradition should be denied on humanitarian grounds or on
account of the treatment that the fugitive is likely to receive upon his return to the requesting
state.” 23 The rule of non-inquiry has underpinnings that are rooted both in the political question
and separation of powers doctrines. 24 The Executive Branch has relied heavily on the rule
to bolster its argument that the Secretary of State, rather than courts, is the proper entity to
evaluate humanitarian considerations in extradition cases.
b. Convention Against Torture
Although courts generally cannot consider a fugitive’s torture claims, the Secretary of State
has a legal obligation to consider those claims. As discussed above, that obligation flows from
CAT Article 3(1) and the U.S. statute that implements the CAT. 25
The United States signed the CAT in 1988, and in 1994 the Senate gave its advice and consent
to ratification, subject to certain reservations, understandings, and declarations. One declaration
asserted that Articles 1-16 of the CAT are not self-executing. The meaning of “self-executing”
has been the subject of much debate, but, in the view of one scholar, the “basic thrust”
of similar statements from which the Senate drew the language for its CAT understanding was
that the treaties “would require implementing legislation before they could provide a rule of
decision for the courts.” 26
c. FARRA and implementing regulations
Congress implemented the U.S. treaty obligations flowing from CAT Article 3 by enacting the
Foreign Affairs Reform and Restructuring Act (“FARRA”). 27 FARRA states, in relevant part:
“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.” 28 FARRA required the heads of the appropriate
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Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
agencies (at that time, the Secretary of State and the Attorney General) to prescribe regulations
to implement U.S. obligations under Article 3. Importantly, FARRA also stated:
Notwithstanding any other provision of law, and except as provided in the regulations
described in subsection (b), no court shall have jurisdiction to review the regulations
adopted to implement this section, and nothing in this section shall be construed as providing
any court jurisdiction to consider or review claims raised under the Convention
or this section, or any other determination made with respect to the application of the
policy set forth in subsection (a), except as part of the review of a final order of removal
pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252). 29
The State Department, as the entity that makes the final decision regarding whether to surrender
a fugitive in an extradition case, enacted regulations pursuant to FARRA stating that,
in fulfilling U.S. obligations under the CAT, the Department considers whether a person
facing extradition is “more likely than not to be tortured.” 30 The regulations explain, “In each
case where allegations relating to torture are made or the issue is otherwise brought to the
Department’s attention, appropriate policy and legal offices review and analyze information
relevant to the case in preparing a recommendation to the Secretary as to whether or not to
sign the surrender warrant.” 31 Although the regulations do not specifically refer to the use of
diplomatic assurances, they do note that the Secretary may decide to extradite the individual
to the requesting state; deny the extradition; or extradite subject to conditions (which conditions
might be met through diplomatic assurances). 32 The regulations cite FARRA in asserting
that the decisions of the Secretary concerning whether to extradite “are matters of executive
discretion not subject to judicial review.” 33
d. Specific process of obtaining assurances
The United States has provided additional information about the assurances process in extradition
cases. As a result of litigation, in 2001 the United States submitted to a federal court an
affidavit by a State Department employee, Samuel Witten, that explained in greater detail the
process by which the Department of State obtains and assesses diplomatic assurances in cases
in which the fugitive alleges that he will be tortured if extradited. 34 The Witten declaration
states that a number of Department bureaus are involved in the process of considering allegations
related to torture that come to the Department’s attention. This includes the Bureau
of Democracy, Human Rights, and Labor, which prepares the U.S. Human Rights Reports,
and the relevant regional bureau, country desk, or U.S. Embassy, which is knowledgeable
about human rights and prison conditions in the requesting state. 35 The Department examines
materials submitted by the fugitive, as well as other relevant material that comes to the
Department’s attention. 36
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Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
The Department decides on a case-by-case basis whether to seek assurances as a condition of
extradition. These assurances might include provisions on torture; aspects of the requesting
state’s criminal justice system that may protect against mistreatment, such as commitments
that the requesting state will give the fugitive access to counsel and guarantee him the full
protections that exist under that state’s laws; or specific commitments to humane treatment. 37
The Department considers several elements of the assurances when deciding whether they are
sufficient: the identity, position, or other information about the person giving the assurances;
political or legal developments in the receiving state that give context for the assurances;
and U.S. diplomatic relations with the requesting state (which includes judgments about the
requesting state’s incentives and ability to fulfill the assurances). 38
The declaration also provided some detail on monitoring. It noted that in some cases the Department
has asked governmental or non-governmental human rights groups in the requesting
state to monitor the fugitive’s condition. 39 The decision about whether to seek monitoring
will depend on factors such as the identity of the requesting state, the groups that might be
available to monitor, and their ability to monitor. 40 In 1999, the U.S. government stated in a
brief, “[T]here is no evidence that any person extradited from the United States to Mexico or
any other country has been tortured upon his or her return.” 41
In addition to providing greater information about the assurances process, the declaration
explained the importance to the Department of keeping the diplomatic assurances – and the
process of obtaining those assurances – non-public and out of the courts. 42 The declaration
stated:
The Department’s ability to seek and obtain assurances from a requesting State depends
in part on the Department’s ability to treat dealings with the foreign government with
discretion. . . . [T]he Department does not make public its decisions to seek assurances
in extradition cases in order to avoid the chilling effects of making such discussions
public and the possible damage to our ability to conduct foreign relations. Seeking
assurances may be seen as raising questions about the requesting State’s institutions or
commitment to the rule of law . . . . There also may be circumstances where it may be
important to protect sources of information . . . about torture allegations . . . . 43
The declaration further assessed that a requirement to make these communications public
would render both the requesting state and other states reluctant to communicate openly
and honestly with the United States on these issues. Witten’s declaration stated that the
“delicate diplomatic exchange that is often required in these contexts cannot occur effectively
except in a confidential setting.” 44 Finally, the declaration stated that “[a] judicial decision
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Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
overturning a determination made by the Secretary after extensive discussions and negotiations
with a requesting State could seriously undermine our foreign relations.” 45 In at least
one case, however, the United States provided a court with a copy of treatment assurances
– from Venezuela in 1963. 46 And more recently, with the permission of the Government of
Afghanistan, the United States has described the humane treatment assurances in two Afghan
cases described below.
2. Litigation
U.S. courts have seen a significant amount of litigation based on claims by fugitives that their
extradition to a foreign state would violate U.S. laws and treaties due to the alleged treatment
the fugitives would face there. The most important issue in this litigation has been whether
a federal court may consider, in the context of a fugitive’s habeas claim, whether the fugitive’s
extradition would violate the CAT and its implementing legislation. Whether courts may review
assurances is, of course, closely linked to whether courts may examine fugitives’ humanitarian
claims. If courts were to consider humanitarian claims, they naturally would consider
the fugitive’s allegations about why he believes he would be mistreated and the government’s
arguments about why he would not, which might include (at least theoretically) the fact of
obtaining assurances, as well as their contents. To understand why courts historically have
not reviewed assurances in the U.S. extradition context, one must understand why courts have
not, in the main, concluded that they are able to consider humanitarian issues. The Cornejo-
Barreto case showcases the traditional U.S. arguments and differing judicial assessments of
those arguments.
a. Cornejo-Barreto
The U.S. government and U.S. courts historically have taken the view that it is the responsibility
of the Executive Branch, not the courts, to consider humanitarian issues in determining
whether to surrender a fugitive to a foreign country through extradition. Accordingly, the
Executive Branch also has taken the view that it, not courts, should determine whether diplomatic
assurances are necessary and whether the assurances obtained are sufficient to overcome
possible treatment concerns. A fugitive named Ramiro Cornejo-Barreto challenged this
view in litigation that continued for five years and resulted in an unclear legal resolution, even
after three Ninth Circuit opinions.
The Government of Mexico sought to extradite Cornejo-Barreto from the United States under
the U.S.-Mexico extradition treaty. The United States arrested him in 1996, and he appeared
before a magistrate judge for an extradition hearing in 1997. 47 Cornejo-Barreto asserted a
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Diplomatic Assurances in U.S. Courts
defense to extradition on the basis of Article 3 of the CAT, claiming that he had been tortured
in Mexico previously and would be tortured again if returned. 48 The magistrate found his
evidence of future torture inadmissible and issued an order finding him extraditable. 49
Cornejo-Barreto filed a petition for a writ of habeas corpus, alleging that the magistrate’s
order violated CAT Article 3 as well as the Fifth and Eighth Amendments. The district court
denied his petition. On appeal to the Ninth Circuit, Cornejo-Barreto dropped his constitutional
claims but argued that the CAT was self-executing and that he could seek to enforce
it. The U.S. government made three main arguments. First, it argued that the CAT was not
self-executing, based in part on the Senate’s resolution of ratification of the CAT stating that
“the provisions of Articles 1 through 16 of the Convention are not self-executing.” 50 Second,
it argued that FARRA and the State Department regulations implementing FARRA prohibited
judicial review of CAT claims in the extradition context. With regard to FARRA, the U.S.
government pointed to the language in 2242(d), which states that nothing in FARRA “shall be
construed as providing any court jurisdiction to consider or review claims raised” under the
CAT or FARRA, except as part of a final order of removal. 51 Third, the government argued
that the rule of non-inquiry remained unaffected by the CAT, noting that if the executive or
legislative branches had intended “to override this long-established and unbroken principle by
authorizing extradition courts to inquire into possible treatment of a person upon his surrender,
surely one or both branches would have affirmatively so noted.” 52
The Ninth Circuit affirmed the District Court’s denial of Cornejo-Barreto’s petition on the
ground that the issue was not ripe, because the Secretary of State had not yet decided whether
to extradite him. However, the court directed that the dismissal be without prejudice to
Cornejo-Barreto’s ability to file another habeas petition if the Secretary decided to surrender
him. Although Cornejo-Barreto had not invoked the Administrative Procedure Act (“APA”)
as a basis for his claim, the court concluded that the final actions of an agency covered by the
APA are reviewable, with two exceptions: when statutes preclude judicial review or agency
action is committed to agency discretion by law. 53 It reasoned that FARRA did not preclude
judicial review because Congress did not specifically revoke the ability of a court to consider
the issues through habeas petitions, apparently interpreting 2242(d) as foreclosing only direct
judicial review of the Secretary’s implementing regulations. 54 And it determined that the
Secretary’s action was non-discretionary because the FARRA imposed a mandatory duty on
the Department to implement CAT Article 3. 55 Thus, the Cornejo-Barreto I court stated that a
fugitive whom the Secretary ordered extradited could state a claim cognizable under the APA
that the Secretary had breached her duty to implement Article 3. 56
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The Secretary subsequently signed a warrant of extradition for Cornejo-Barreto. 57 Cornejo-
Barreto filed a second habeas claim on the basis of the statement in Cornejo-Barreto I. The
U.S. government argued that the language in Cornejo-Barreto I on humanitarian review was
dicta, because the court ultimately held that Cornejo’s petition was not ripe. The government
understood, however, that the district court might feel obligated to follow Cornejo-Barreto
I. Although it declined to submit for APA review the administrative record underlying
the Secretary’s decision to surrender Cornejo-Barreto, it provided the court with the Witten
declaration (see above) as a generalized alternative, to explain the basic considerations and
procedures in play when the Secretary makes an extradition decision in the face of torture
issues. 58 The government also submitted that Cornejo-Barreto I’s decision raised constitutional
concerns, because the decision effectively overruled the rule of non-inquiry, which has
constitutional underpinnings. 59
The district court held that it had jurisdiction to consider Cornejo-Barreto’s treatment claims,
but found that the Witten declaration was uncontradicted, and that Cornejo-Barreto failed to
show that Secretary had not acted in accordance with the law in deciding to extradite him. 60
Cornejo-Barreto appealed to the Ninth Circuit, which held that the discussion of APA review
in Cornejo-Barreto I was only advisory and not binding on the second panel. 61
The Cornejo-Barreto II panel held that the Secretary’s decisions concerning extradition were
not subject to judicial review. Starting from the long-standing nature of the rule of non-inquiry,
the court held that neither the CAT nor FARRA displaced that rule. The court agreed
with the government’s reading of 2242(d), which it held “plainly does not contemplate judicial
review for anything else” but final orders of removal for compliance with the CAT and
FARRA. 62 It also found that the CAT was non-self-executing, and so did not enable judicial
review either. In sum, the court held that “it seems clear that Congress did not intend for the
Convention or the FARR Act to affect review of the Secretary’s determination in extradition
cases applying the policy against returning fugitives to a requesting country where there is
a danger of being subjected to torture.” 63 And it rejected the APA as an alternative basis for
judicial review of the Secretary’s decision to extradite, both because FARRA limited judicial
review and because the Secretary’s decision to extradite is discretionary. 64
Cornejo sought and the Ninth Circuit granted en banc review of this decision. 65 Before the
Ninth Circuit issued a decision, the Government of Mexico withdrew its extradition request. 66
The Ninth Circuit granted the U.S. government’s motion to dismiss the appeal as moot and
vacated the Cornejo-Barreto II opinion, but denied the government’s request to vacate other
published opinions in the case. 67
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Diplomatic Assurances in U.S. Courts
In the wake of Cornejo-Barreto III, courts have taken different positions on what opinions
in the Cornejo-Barreto series remain intact. A number of courts have treated the reasoning
in Cornejo-Barreto II as surviving the vacation of the opinion. In Mironescu v. Costner, the
Fourth Circuit repeatedly cited Cornejo-Barreto II after Cornejo-Barreto III had ordered the
opinion withdrawn. 68 In In re: Solis, a California district court cited Cornejo-Barreto II for
the proposition that the rule of non-inquiry remains undisturbed by FARRA. 69 Similarly, Al
Anazi cited Cornejo-Barreto II for the holding that section 2242(d) did not contemplate judicial
review of any action other than a final order of removal. 70
Other courts have concluded that Cornejo-Barreto I survives but Cornejo-Barreto II is no longer
good law. The district court in North Carolina hearing the Mironescu case noted that the
Ninth Circuit did not vacate the decision in Cornejo-Barreto I, despite the U.S. government’s
request that it do so. 71 In Arambasic v. Ashcroft, the court noted that the Ninth Circuit vacated
Cornejo-Barreto II, but not Cornejo-Barreto I. 72 In another interpretation, the Third Circuit
in Hoxha v. Levi concluded that neither Cornejo-Barreto I nor Cornejo-Barreto II was binding
law in the Ninth Circuit. 73 The most authoritative source, the Ninth Circuit itself, suggested in
Prasoprat v. Benov that Cornejo-Barreto I continues to be good law, while noting that Cornejo-
Barreto II disapproved of the Cornejo-Barreto I court’s reasoning. 74
One might expect that, if a similar fact pattern arose in the Ninth Circuit, the case would end
up before an en banc panel that would be inclined to follow the result in Cornejo-Barreto I.
The Ninth Circuit’s decision in Prasoprat appeared to keep the holding in Cornejo-Barreto I
alive when it stated, “We note . . . that in light of legislation implementing the United Nations
Convention against Torture, the rule of non-inquiry does not prevent an extraditee who fears
torture upon surrender to the requesting government from petitioning for habeas corpus
review of the Secretary of State’s decision to extradite him.” 75
b. Mironescu
In Mironescu v. Costner, the Fourth Circuit took up the question that arose in Cornejo-Barreto,
and arrived at a different result, although the Mironescu opinion is not without ambiguity.
Romania sought Petru Mironescu’s extradition for car theft. Mironescu asked the Secretary of
State to deny his extradition, claiming that he would face physical abuse amounting to torture
if returned to Romania. The Secretary of State determined that the CAT did not bar his
extradition and signed a warrant for his extradition. 76 Mironescu then sought a writ of habeas
corpus based on CAT and FARRA and, in the wake of Cornejo-Barreto I, invoked the APA as
a basis for jurisdiction.
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Diplomatic Assurances in U.S. Courts
The district court upheld Mironescu’s claim based on the reasoning in Cornejo-Barreto I. 77
The court held that, after Congress enacted FARRA, APA review became available. 78 The
court therefore ordered the government to produce the administrative record that the Secretary
had considered in deciding whether Mironescu would be subject to torture upon returning
to Romania, so as to permit the court to review whether the Secretary’s decision was
“arbitrary, capricious, or not in accordance with law.” 79 The court noted that the government
could file its documents under seal, so as to reduce foreign policy concerns. 80
The United States appealed, and the Fourth Circuit reversed. Only part of its reasoning favored
the government, however. The Fourth Circuit rejected the government’s argument that
the rule of non-inquiry barred courts from reviewing treatment concerns in habeas petitions,
relying on a past case, Plaster v. United States, which held that a court could consider treatment
claims where extradition would violate an individual’s constitutional rights (including
his due process rights). 81 The court emphasized that a habeas court reviewing CAT or FARR
Act claims would not be called upon to consider whether extradition would further our foreign
policy interests or, if so, how much to weigh those interests. Rather, it would be required
to answer only the straightforward question of whether a fugitive would likely face torture
in the requesting country. American courts routinely answer similar questions, including in
asylum proceedings and in applying the political offense exception, under which the political
nature of and motivation for a crime may negate extraditability. 82
The court also speculated that the damage done to foreign relations is likely to be less when a
court, rather than the Secretary, decides to deny extradition. The court expressed confidence
that district courts adequately could protect the government’s sensitive information and communications
by considering the information in camera. 83
The Fourth Circuit concluded, though, that in enacting FARRA, Congress specifically intended
to bar habeas review of CAT claims, and that the court therefore could not consider those
treatment claims. In passing, the court noted that Mironescu had not argued that denying
him the opportunity to present his CAT and FARRA claims on habeas review violated the
Suspension Clause. 84 The Fourth Circuit denied Mironescu’s petition for rehearing en banc;
Mironescu then petitioned for a writ of certiorari. Before the Supreme Court decided whether
to take the case, the U.S. government released Mironescu from custody, after the Romanian
government notified the United States that Mironescu already had served the equivalent of his
sentence while in U.S. custody, thus mooting the case. 85
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Thus, the Fourth and Ninth Circuits appear to disagree about whether Congress, in enacting
FARRA, intended to foreclose habeas petitions challenging the Secretary’s decision to extradite
in the face of torture claims, and Mironescu II represents the first clear appellate ruling
that FARRA commits to the Secretary of State alone the enforcement of the CAT. 86 On the
other hand, there are some tensions within the Mironescu II opinion: for instance, does it
make sense that Congress intended to undermine the rule of non-inquiry by “giving petitioners
a foothold” in federal court with FARRA, yet intended to preclude habeas corpus jurisdiction
to use that foothold? 87 The Fourth Circuit left open the notion that future litigants might
challenge FARRA as violating the Suspension Clause, and its holding in Mironescu II, when
considered with Cornejo-Barreto, reflects that FARRA’s language has proven to be more ambiguous
than its drafters expected. 88
Other courts continue to grapple with this issue. The Third Circuit faced the question of
whether federal courts could review the Secretary of State’s extradition decision under the
APA, but declined to answer the question because the Secretary had not yet decided to extradite
the fugitive. 89 Likewise, the court in Arambasic suggested that Cornejo-Barreto I and its
APA analysis remained good law in the Ninth Circuit but stated, in the context of claims that
a Serbian fugitive would not receive a fair trial in Croatia, “Even if such review is available in
the Eighth Circuit, there would be no basis to request review unless and until the Secretary
of State denied petitioner relief.” 90 The Second Circuit appears to have rejected any judicial
review of humanitarian claims and to treat the rule of non-inquiry as absolute. 91
c. Humanitarian exception dicta
A number of courts have suggested (some more assertively than others) that there may be
a basis for courts to craft an humanitarian exception to the rule of non-inquiry in cases in
which an extradition would offend the sensibility of the court. It is not clear the basis on
which courts would invoke this exception, other than equity, and to date no court has actually
halted an extradition on this theory. Nevertheless, only the Second Circuit seems affirmatively
to have rejected such an exception.
The initial source of the dicta was Gallina v. Fraser. 92 There, the court stated that it could
“imagine situations where the relator, upon extradition, would be subject to procedures or
punishment so antipathetic to a federal court’s sense of decency as to require reexamination of
the [general principles that an extraditing court will not inquire into the procedures or treatment
awaiting a surrendered fugitive].” 93 Since Gallina, the Second Circuit has distanced itself
from that dicta, most recently questioning a district court’s decision to explore the merits of
the fugitive’s mistreatment claims. 94
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Diplomatic Assurances in U.S. Courts
The Ninth Circuit has cited the Gallina dicta most often. In Arnbjornsdottir-Mendler v. United
States, the court noted that the Ninth Circuit might someday articulate a humanitarian exception
to extradition. 95 In Lopez-Smith v. Hood, the court discussed the “frequently quoted (but
not followed) dictum” that a court may apply a humanitarian exception to extradition, but
concluded that “the facts in this case are not so egregious as to invoke the dictum.” 96 Similarly,
the Ninth Circuit declined to apply the dictum to a case in which the fugitive alleged that Germany
might detain him for up to four years without trying or releasing him, which would expose
him to a high risk of suffering a heart attack, but left open the “possibility” that it might
someday develop this exception. 97 Even the Ninth Circuit, though, has acknowledged that no
court has, to date, relied on this theoretical exception. 98 The Third, Fourth, and Seventh Circuits
have suggested in passing that the exception may exist. 99 The First and Eleventh Circuits
seem to have rejected the exception. 100 Given that no court has actually applied the exception,
it remains an untested proposition that courts nevertheless seem unwilling to abandon. 101
d. Conclusion
Cornejo-Barreto I offers an example of a court straining to find jurisdiction in the face of
reasonably clear statutory language to the contrary. Several recent non-extradition cases
illustrate courts’ (including the Supreme Court’s) interest in preserving habeas jurisdiction
even where it is quite clear that Congress intended to remove it. 102 This trend, if it continues,
seems likely to come to a head soon in the extradition context. If the Ninth Circuit confronts
a case similar to Cornejo-Barreto’s, there is a good chance that the court will conclude, as
Cornejo-Barreto I did, that a fugitive may obtain habeas corpus review of the Secretary of
State’s decision to extradite him in the face of torture concerns. This will force the Executive
Branch either to abandon its long-standing reliance on the rule of non-inquiry and disclose
to the court the administrative record, including any diplomatic assurances it has obtained, or
deny the extradition request and release the fugitive from custody. It is reasonable to imagine
that the Supreme Court could grant certiorari on this issue in the near future.
Additionally, the history of U.S. extradition practice contains some exceptions to the rule
of non-inquiry. For example, the 1985 U.S.-UK extradition treaty contained a provision
permitting U.S. judges to inquire into whether the fugitive would potentially be subject to
discriminatory treatment in the requesting state. 103 This provision was unusual – and found
its origins in Senate concerns about the UK’s use of a particular type of court – and the United
States and UK have since concluded a new treaty, partly to supersede that provision. But
other bilateral extradition treaties, such as those with Sweden and Finland, included provisions
that permitted the requested state to deny extradition when that extradition appeared
to be incompatible with humanitarian considerations. 104 And most U.S. bilateral extradition
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treaties contain a “political offense” exception that petitioners may use to seek judicial review
of whether the offense for which a person is sought is a political offense, a judgment that
has political overtones. 105 These examples may be viewed as cracks in the armor of the rule
of non-inquiry in the face of humanitarian considerations. These cracks seem likely only to
widen as some courts seek to assume larger roles in reviewing Executive decisions that take
place at the intersection of detention and treatment.
B. Removal
1. Legal framework
As with extradition, the CAT is the primary source of the limitation on removals where it is
more likely than not that the transferee will face torture. And as with extradition, FARRA
provides the governing statutory rules for the Executive. FARRA required the Department
of Justice (“DOJ”) to enact regulations implementing the Congressional policy contained in
FARRA, because DOJ was responsible for deportations and removals. 106 Unlike in the extradition
context, however, where courts historically have hesitated to review the Secretary of
State’s decision to extradite, FARRA provides for judicial review of a final order of removal.
DOJ’s implementing regulations specifically contemplate the use of diplomatic assurances
where the person subject to removal raises a claim under the CAT. Title 8 C.F.R. § 208.17
provides for relief in the form of deferral of removal for those individuals who are not entitled
to have their removal withheld entirely, but who nevertheless are more likely than not
to be tortured if removed from the United States. 107 8 C.F.R. § 208.17(d) specifies a process
by which the Government may seek termination of deferral of removal when new evidence
affecting the torture analysis becomes available. The process requires notice to the alien; an
evidentiary hearing; and a de novo determination about the likelihood of torture, and permits
an appeal to the Board of Immigration Appeals (“BIA”). 108
The regulations contemplate another way for the Government to seek termination of deferral
of removal. 8 C.F.R. § 208.18(c)(1) states that the Secretary of State may secure assurances
from a receiving state that the person would not be tortured if returned to that state, and then
may forward those assurances to the Secretary of Homeland Security. 109 The Secretary of
Homeland Security, in consultation with the Secretary of State, determines whether the assurances
are sufficiently reliable to allow the transfer to occur consistent with U.S. obligations
under the CAT. Once assurances are provided, the immigration judge, BIA, and asylum office
may no longer consider the alien’s claim for protection. 110 Less clear is whether Congress
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intended courts to be able to review assurances in that context. Until recently, no court had
suggested that Congress did.
2. Factual situations involving use of assurances
The United States has only relied on assurances in a small number of immigration removal
cases. In one recent case, the United States appeared to consider seeking assurances from a
government but then reversed itself. The BIA had held that Bekhzod Yusupov, a Uzbek national
detained by the United States for four years, was entitled to deferral of removal because
it was more likely than not that he would be tortured if the United States sent him back to
Uzbekistan. Although the Department of Homeland Security informed Yusupov in July 2006
that it planned to pursue assurances from the Uzbek Government, in October 2006 the State
Department informed him that this was no longer the case. Instead, the United States reportedly
hoped to resettle him in a third country. 111 The United States may have decided that the
Uzbek Government’s human rights record was so poor that it would not be able to deem any
form of assurances trustworthy.
3. Litigation
Litigation contesting the use of assurances in the removal context has been limited, due in
part to the small number of cases in which the United States has relied on assurances to
overcome a BIA finding. As in extradition cases, the U.S. government argues that courts lack
jurisdiction to review assurances that the government obtains to facilitate a removal consistent
with the CAT. However, in one recent case, Khouzam v. Hogan, a district court blocked
the U.S. deportation of an Egyptian national to Egypt, in part because the U.S. government refused
to show to the court the assurances it had obtained from Egypt. 112 The U.S. government
has appealed the case; a loss on appeal will require the U.S. government to decide whether to
show the assurances to the court, to permit Khouzam to remain free in the United States, or
to try to hold him in post-removal-order detention for an indefinite period of time.
In February 1998, Sami Khouzam sought to enter the United States and immediately was
detained. In May 1998, an immigration judge concluded that there were substantial grounds
for concluding that Khouzam had murdered a woman in Egypt, and thus found him statutorily
ineligible for asylum or withholding of removal. The Board of Immigration Appeals
affirmed. 113 Khouzam then applied for relief under the CAT, claiming that he previously had
been subjected to cruel and inhumane treatment by Egyptian law enforcement officials. He
attributed this treatment to the fact that he was a Coptic Christian who refused to convert to
Islam. The immigration judge found the evidence to be “overwhelming” that Khouzam was
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Diplomatic Assurances in U.S. Courts
more likely than not to be subject to torture by Egyptian officials. The judge therefore deferred
his removal, noting that “the Secretary of State may, in her discretion, seek diplomatic
assurances from the Egyptian government that [Khouzam] would not be tortured if he is
returned there, and then, in consultation with the Attorney General, may separately assess the
adequacy of such assurances.” 114 The BIA affirmed the grant of a deferral. 115
After additional litigation about whether his removal was foreseeable, the district court in
New Jersey granted his habeas petition and ordered Khouzam released. Over a year later,
the U.S. government again detained Khouzam and informed him that it had terminated his
deferral of removal, based on assurances from Egypt that he would not be tortured. The State
Department asserted that the assurances it received “were of sufficient reliability to enable the
Secretary of Homeland Security to conclude that if Mr. Khouzam were removed to Egypt with
these assurances, it would not be more likely than not that he would be tortured.” 116 Khouzam
filed an emergency petition for a writ of habeas corpus and sought a stay of removal. The
district court granted the temporary stay.
The key issue for the district court was whether the U.S. government had the sole discretion
to remove Khouzam on the basis of the assurances it received from Egypt. Khouzam argued
that reliance on those assurances violated FARRA; that the Government had failed to comply
with the applicable regulations; and that terminating his deferral of removal without letting
him examine the assurances and contest their reliability violated his due process rights.
The court rejected his first argument. Specifically, the district court did not reject outright the
use of diplomatic assurances, noting that the negotiating history of the CAT and the legislative
history of FARRA were silent on the use of assurances, and that both the UK and Canada
have relied on assurances in efforts to remove individuals to states with a history of using
torture. 117 The Court noted, “[I]t is not unreasonable to utilize appropriate diplomatic assurances
to avoid violating FARRA. That a particular country may have a record of torture does
not mean that a diplomatic assurance will never have sufficient indicia of reliability.” 118 The
Court addressed his second argument in passing, finding “that there is a substantial question
of fact as to whether the Government complied with the regulations concerning deportation
on the basis of a diplomatic assurance.” 119
However, the Court upheld his third argument – that his inability to see and contest the assurances
violated his due process rights. The United States argued that FARRA specifically
precludes judicial review of diplomatic assurances, and that Khouzam, as an arriving alien,
was not entitled to Fifth Amendment protections. It also claimed that FARRA’s complete
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Promises Not to Torture:
Diplomatic Assurances in U.S. Courts
delegation of authority to the Executive Branch, the traditional deference that the Executive
receives in immigration and foreign affairs, and the rule of non-inquiry all counseled in favor
of a decision that the assurances were not subject to review. 120
The court held that Congress, in enacting FARRA, clearly contemplated that judicial review
would occur after a final removal order, and that nothing in the legislation suggested that
Congress intended to foreclose that review in those cases in which the Government had obtained
diplomatic assurances. In the court’s view, “The CAT claim would then be considered
along with all other challenges to removal in a single judicial review process.” 121 Further, the
court insisted in seeing the assurances: “Because Congress contemplated there would be impartial
review of the United States’s compliance with the non-refoulement obligation, it necessarily
follows that the diplomatic assurances should be subject to some review process.” 122
The court also was not persuaded by the Government’s invocation of the rule of non-inquiry,
citing Mironescu II for the proposition that the rule of non-inquiry is inapplicable in habeas
proceedings. The court quoted Mironescu II’s statement that “a habeas court reviewing CAT
or FARR Act claims would . . . be required to answer only the straightforward question of
whether a fugitive would likely face torture in the requesting country.” 123 The court considered
that, to the extent the U.S. government had good reasons for wanting to maintain the
confidentiality of certain sensitive aspects of the assurances, the court could protect that confidentiality
by considering them in camera. 124
The court then went further. It held that even if Congress had intended to preclude review of
a CAT claim in the face of diplomatic assurances, the Due Process Clause of the Fifth Amendment
required an impartial tribunal to impose some level of scrutiny on the assurances. 125
The court noted that the United States is the only country that denies a person subject to
transfer the right to challenge the reliability and sufficiency of assurances against torture. 126
Relying on Mathews v. Eldridge, the court reviewed the interests at stake, the risk of an erroneous
determination if the process were reduced, and the burden imposed on the Government
by the additional safeguards. It rejected the Government’s arguments that the habeas proceeding
underway constituted notice and a meaningful opportunity to be heard because the
Government had given the court “[u]nsworn declarations that a written diplomatic assurance
has been received,” which the court claimed left it nothing to review. 127
The court also found that there were less drastic ways to comply with FARRA while promoting
stable foreign relations: specifically, the process by which an immigration judge reviews
new evidence related to the likelihood of torture in a deferral of removal case. There, when
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the new evidence arises, the Department of State has the opportunity to provide comments
in connection with an application to terminate the deferral of removal and the immigration
judge makes a de novo review of the likelihood of torture. The court noted, “Diplomatic assurances
could be made part of the record on an application to terminate deferral of removal.
Issues of confidentiality could be addressed by in camera proceedings.” 128
The court dismissed the U.S. government’s argument that courts could not devise meaningful
standards for review of diplomatic assurances by pointing to the experience of other countries,
including factors used by the UK’s Special Immigration Appeals Commission (“SIAC”),
the Canadian courts, and the factors that the U.S. government itself has identified for the
Executive Branch to use. The court concluded that it could review those factors and decide
whether there was “some evidence” supporting the Executive Branch’s decision, without reweighing
the evidence. 129 Although the court declined to further define the parameters of a
review process, it concluded, “[I]t is clear . . . that the ‘process’ accorded to Khouzam is not
sufficient in that the risk of an erroneous determination is unacceptably high in relation to the
important interests at stake. It is also clear that additional protections that could include giving
Khouzam access to the diplomatic assurance and an opportunity to present his case to an
impartial adjudicator would not be unduly burdensome.” 130
This decision highlights one of the critical distinctions between assurances practice in the
United States (which generally places assurances outside the realm of judicial review and
thus permits the Executive Branch to keep the assurances non-public) and European assurances
practice (in which courts conduct a searching inquiry into the assurances and therefore
require governments to reveal the assurances to courts and tribunals). The Khouzam decision
represents one court’s effort to take a step in the European direction. If the Court of Appeals
(and perhaps the Supreme Court) uphold this decision on appeal and determine that courts
should play a role in considering future torture claims, the United States will be forced to
decide whether to reveal the contents of the assurances to the court. It also seems likely that
if the Third Circuit upholds Khouzam on appeal, courts considering whether to review CAT
claims in extradition cases would take note, even though the statutory basis for judicial review
is weaker in the extradition context.
c. When transfers with assurances fail
In Khouzam, the court concluded that transfer was not a legal option, but the government did
not want to release Khouzam into the United States. In Zadvydas v. Davis, the Supreme Court
made it more difficult for the U.S. government to pursue a third possible option -- long-term
detention -- in immigration cases in which neither transfer nor release is viable. 131 There, the
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Court held that constitutional due process requirements demand that, following a final order
of removal, deportable aliens already in the United States may only be detained for such time
as is “reasonably necessary to bring about that alien’s removal from the United States,” and
that those requirements do not permit indefinite detention. 132 The Court nevertheless suggested
that the government might be warranted in detaining indefinitely deportable “specially
dangerous” aliens, without defining that term. 133
In the wake of Zadvydas, DHS enacted new regulations. The regulations allow DHS to detain
certain classes of aliens due to special circumstances, including aliens detained because their
release is likely to have serious adverse foreign policy consequences; and aliens whose release
poses a significant threat to national security or a significant risk of terrorism. 134 The Secretary
of Homeland Security must certify in writing that someone falls within the foreign policy
exception, after consultation with and on the recommendation of the Secretary of State. 135 A
DHS official has testified that “in all but the most serious cases, a criminal alien who cannot
be returned – regardless of the reason – may be subject to release after six months.” 136
Also in the wake of Zadvydas, as part of the 2001 PATRIOT Act, Congress enacted a provision
authorizing administrative detention, for six month renewable periods, of any alien who
cannot be removed but who poses a threat to national security. 137 The Executive Branch has
not tested this provision.
Zadvydas and its progeny raise the stakes for the U.S. government. By establishing a high bar
for the “indefinite detention” option in the removal context, Zadvydas puts the government
in the position of needing to rely more heavily on deportations with assurances in situations
in which someone poses a national security threat to the United States but alleges torture if
deported to his home country. 138
C. Transfers of detainees from Guantanamo Bay
A novel situation in which the United States has relied on diplomatic assurances is in the
context of transferring individuals from the detention facility at Guantanamo Bay to their
home countries or to third countries. The United States has sought those assurances that it
considers “necessary and appropriate for the country in question.” 139 In practice, the United
States has sought two types of assurances from foreign governments in advance of transfer
– security assurances and treatment assurances. This section focuses on the latter.
In declarations filed in federal court, the U.S. Ambassador for War Crimes has stated, “Among
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the assurances sought in every transfer case in which continued detention is foreseen is the
assurance of humane treatment and treatment in accordance with the international obligations
of the foreign government accepting transfer.” 140 Assurances are particularly important
in cases in which the receiving state may detain the individual, because those are the situations
in which the receiving state most clearly can control the treatment that he receives.
In contrast to the U.S. practice in the extradition context, the United States has stated publicly
that it obtains assurances as a matter of course for certain Guantanamo transfers, although,
as in extradition cases, the United States has not revealed the content of those assurances. As
in the extradition and deportation contexts, the United States has argued that the Executive
Branch alone – not the courts – should review the sufficiency of the assurances to address the
likelihood that someone would be tortured after being transferred. As in those other contexts,
some courts have disagreed with this argument as it applies to Guantanamo detainees.
Although the United States is holding detainees at Guantanamo as combatants detained in
an armed conflict, transfers from Guantanamo raise several sui generis issues. Therefore,
this section discusses detainees at Guantanamo, and section D discusses detainees in armed
conflict more generally.
1. Legal framework for transfers
a. Inapplicability of CAT
Because the United States consistently has taken the view that CAT Article 3 does not apply
as a legal matter to its activities outside its territory, and because Guantanamo Bay is not part
of U.S. territory, the United States takes the position that the non-refoulement obligations in
the CAT do not attach as a legal matter to its activities at Guantanamo. 141 Nevertheless, U.S.
policy is not to send any Guantanamo detainee to a place where it is more likely than not that
he will be tortured. 142
b. Inapplicability of Geneva Conventions
The Third and Fourth Geneva Conventions contain several provisions relating to transfers
by a detaining power of individuals (whether prisoners of war under the Third Convention
or protected persons under the Fourth Convention) to their own or third countries. However,
the United States takes the position that the detainees at Guantanamo are not entitled to
prisoner of war status, and because the United States consistently has determined them to be
unlawful enemy combatants, it appears that the United States does not believe that they are
protected persons under the Fourth Convention. Further, the Supreme Court in Hamdan v.
Rumsfeld concluded that the U.S. conflict with al Qaeda was one of a non-international char-
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acter. 143 This means that the al Qaeda detainees could neither be POWs nor protected persons,
categories found only in international armed conflict. Even if members of the Taliban
at Guantanamo could be deemed protected persons, as some have argued, the only provisions
governing transfers of protected persons appear in sections that apply to occupied territory
and to aliens in the territory of a party to a conflict. It is hard to argue that Taliban detainees
fall into either category. 144
Common Article 3, the provision in each of the four Geneva Conventions that the Supreme
Court held to apply to al Qaeda detainees, is silent on issues of transfers of detainees, including
transfers to other states. 145 Therefore, no applicable law of war treaty provisions provide
guidance on transfers of the Guantanamo detainees to their home or third countries.
2. Policy framework for transfers
Because of the U.S. policy against transfers where it is more likely than not that a person will
be tortured, the United States seeks diplomatic assurances of humane treatment from receiving
states when it appears that the state will continue to detain individuals transferred from
Guantanamo. 146 This approach is different (and more protective) than in the extradition
context, where the U.S. government seeks assurances only in cases in which it has specific
concerns that the person at issue might be tortured if returned.
As a result of litigation in which detainees have sought injunctions against their transfers from
Guantanamo, the United States has produced several declarations that explain the transfer
process. The Departments of State and Defense produced these declarations, which are akin
to the Witten declaration described in section A above. The court in Almurbati v. Bush summarized
the process described in the declarations as follows:
To insure that such repatriations or transfers [to face torture] do not occur, the Department
of Defense (“DoD”) represents that it consults with other agencies and considers
factors such as the particular circumstances of the proposed transfer, the country to
which the transfer is being made, the individual concerned, and any concerns regarding
torture or persecution that may arise. Moreover, the respondents declare that the
“United States seeks humane treatment assurances whenever continued detention is
foreseen after transfer and pursues more specific assurances where circumstances warrant,
including assurance of access to monitor treatment after transfer.” [T]he Secretary
of Defense approves a transfer with the involvement of senior United States Government
officials, including Department of State officials most familiar with international
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legal standards and the conditions in the countries concerned. . . . [T]he DoD will not
transfer an individual if any concerns about mistreatment of an individual in his home
country or prospective destination country cannot be resolved. 147
As in the Witten declaration, the Benkert and Williamson declarations explain why it would
be detrimental to the process for the Executive to disclose those assurances publicly. These
reasons include the fact that foreign governments whose communications the United States
disclosed would be reluctant in the future to communicate frankly with the United States on
these issues, that disclosure would undermine the Department of State’s ability to investigate
allegations of torture or mistreatment, and that State Department officials need to know that
their reports, which often contain information received from foreign officials, will not be
made public. 148
3. Litigation
Given the quantities of litigation that Guantanamo has spawned, it is not surprising that
transfers from Guantanamo also have produced significant amounts of litigation. Although
the Department of Defense (“DoD”) transferred at least 68 people out of Guantanamo during
its first two years of operation into the custody of other states, transfer litigation did not begin
until early 2005. 149 In most of those cases, the detainees, who allege they will be mistreated
after their transfers, either have sought an injunction against their transfer or a court order
requiring the government to give them thirty days’ advance notice that the government plans
to transfer them to another country. At the time that detainees initiated most of their cases,
Congress had not enacted any laws affirmatively granting or denying courts the ability to hear
these cases, leading to inconsistent decisions about whether to grant relief. 150
For example, in March 2005, several Yemenis at Guantanamo filed a motion seeking thirty
days’ advance notice of a U.S. intent to transfer them to Yemen. 151 The U.S. government urged
the court to decline to take up petitioners’ claims on the basis that doing so would inject the
court into “the most sensitive of diplomatic matters.” It continued, “Such judicial review
could involve scrutiny of United States’ officials [sic] judgments and assessments on the likelihood
of torture in a foreign country, including judgments on the reliability of information
and representations or the adequacy of assurances provided, and confidential communications
with the foreign government and/or sources therein. Disclosure and/or judicial review
of such matters could chill important sources of information and interfere with our ability to
interact effectively with foreign governments.” 152 This discomfort with sharing assurances has
obvious historical ties to the longstanding U.S. position in extradition cases.
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Dozens of court decisions have granted the detainees’ requests for thirty days’ notice, under
varying legal theories. 153 In Abdah v. Bush, the court granted the detainees’ motion for a
preliminary injunction, providing that their counsel (and the court) receive thirty days’ notice
from the government before transfer. 154 In Abdullah v. Bush, the court granted the thirty days’
notice as a condition of granting the government’s motion to stay the case. 155 In Ameziane v.
Bush, the court required that the government provide thirty days’ notice pursuant to the All
Writs Act. 156 It is not clear what steps the courts believe they could take after the detainees
receive thirty days’ notice (and presumably then attempt to oppose the announced transfer).
Nor is it clear that most courts carefully considered the basis of the implied right not to be
transferred to face torture. 157
Several other courts denied the detainees’ requests for thirty days’ notice. In Al Anazi v. Bush,
petitioners sought a preliminary injunction that would have required the United States to
give detainees’ counsel thirty days’ notice before transfer. 158 The court denied the injunction,
finding the likelihood of success on the merits – that is, success in blocking their transfer to a
foreign state – low. The court noted:
Petitioners have not come forward with any legal authority that can be read to prohibit
the transfer of Guantanamo detainees to a foreign country; any evidence that the United
States is transferring Guantanamo detainees to foreign countries for an illicit purpose; or
any reason to doubt the statements in the sworn declarations of high-level Department
of Defense and Department of State officials that the United States relinquishes control
of the detainees upon transfer to the foreign state and obtains all assurances necessary
under the law from the foreign state that the detainee will be treated humanely upon
transfer. 159
The court also drew on extradition case law – particularly the rule of non-inquiry – to bolster
its conclusion. It stated, “Counseling even further against judicial interference in the transfer
of detainees to other countries is a well-established line of cases in the extradition context
holding that courts will not conduct an inquiry into the procedures or treatment which await
a surrendered fugitive in the requesting country.” 160
In Almurbati v. Bush, another court reached the same result using different reasoning. 161 In
denying the requested thirty days’ notice, the court concluded that petitioners failed to show
that their threatened injuries were not remote and speculative. The court also noted that
judicial intervention in transfer and repatriation decisions would prevent the United States
from speaking with one voice in its dealings with foreign governments, while undermining
the ability of the United States to reduce the number of individuals under its control and to
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elicit the cooperation of other governments in the war on terrorism. It rejected the detainees’
argument that the All Writs Act permitted it to impose the notice requirement, stating,
“[R]equiring the respondents to provide notice as requested prior to carrying out the transfer
of the detainees from Guantánamo Bay on the record before it, would be tantamount to an
unconstitutional encroachment on the authority of the Executive Branch to determine when
it should continue to detain an individual it has no further interest in detaining. This Court
simply does not have authority to require the Executive Branch to provide thirty day notices
prior to effecting the transfer of the petitioners.” 162
The lack of a clear statement (at the time) by Congress about the availability of habeas actions
in Guantanamo cases provides at least a partial explanation for the varied rationales for granting
or denying detainees’ requests for stays or notice. The fact that courts are grappling with
factual scenarios with which they are unfamiliar and for which there is little precedent (other
than the rule of non-inquiry) further explains the patchwork of decisions. Indeed, the D.C.
Circuit, which has denied on appeal a number of “advance notice of transfer” motions, seems
initially to have based its decisions on subsequent guidance that Congress provided in the
MCA. 163 However, more recently the D.C. Circuit concluded that the district court may act
to preserve its jurisdiction over a detainee’s habeas petition and his challenge to his transfer
to Algeria, relying on the Supreme Court’s grant of certiorari in Boumediene as raising colorable
questions about the constitutionality of the MCA provision denying detainees the right to
bring habeas petitions. 164
4. Military Commissions Act and Boumediene
In the background of these cases was a shifting legal landscape about whether Guantanamo
detainees could file habeas petitions. In Rasul v. Bush, the Court held that they could. 165 Congress
then enacted the Detainee Treatment Act in an effort to strip the detainees of the ability
to bring habeas petitions or any other action related to any aspect of their detention, with two
limited exceptions. 166 In Hamdan v. Rumsfeld, the Court held that Congress had not successfully
stripped the detainees of habeas, at least with regard to pending cases. 167 In September
2006, partly to address the Hamdan decision, Congress enacted the Military Commissions
Act (“MCA”). 168
Section 7 of the MCA stripped both habeas and other causes of action related to detention,
whether future and pending. The habeas-stripping provision stated, “No court, justice, or
judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed
by or on behalf of an alien detained by the United States who has been determined to be an
enemy combatant . . . .” 169 The provision related to other actions states, “Except as provided in
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. . . the Detainee Treatment Act . . . no court, justice, or judge shall have jurisdiction to hear or
consider any other aspect of the detention, transfer, treatment, trial, or conditions of confinement
of an alien who is or was detained by the United States and has been determined by the
United States to have been properly detained as an enemy combatant . . . .” 170
The detainees again argued that Congress had not effectively stripped habeas corpus in the
MCA. The D.C. Circuit disagreed in Boumediene v. Bush, holding that the MCA denied
courts jurisdiction to hear the detainees’ habeas and non-habeas claims. 171 The Supreme
Court granted certiorari and reversed, holding that the Suspension Clause protects Guantanamo
detainees and that because the DTA’s procedures for reviewing detainees’ status were
not an adequate and effective substitute for the writ of habeas, MCA section 7 constituted an
impermissible suspension of the writ. 172
While waiting for the Court to decide Boumediene, several courts held that the MCA required
them to dismiss cases by detainees seeking stays or thirty days’ notice of transfer. 173 The MCA
thus appeared to serve a function similar to that served by FARRA in the extradition context:
a notice from Congress that it did not want courts to consider particular (or, in the case of
the MCA, any) questions related to the transfer of individuals to foreign countries. Now that
the Court has upheld the detainees’ right to file habeas petitions and deemed section 7 of the
MCA unconstitutional, it appears that the Guantanamo detainees will continue to be able
seek stays and notice of transfer, barring further action by the Executive and Congress. 174 Additionally,
the Boumediene Court did not make clear what, if any, other constitutional rights
Guantanamo detainees may have. In particular, do constitutional due process rights attach
to the detainees? If so, detainees may try to claim that transfers to face torture would violate
substantive due process. 175
Finally, the Court’s conclusion that Guantanamo detainees have a constitutional right to
habeas corpus (based on the “complete jurisdiction and control” and “de facto sovereignty” by
the United States over the Cuban base) could strengthen the detainees’ claims that the United
States has a legal – not just a policy – obligation under the CAT regarding their transfers. 176
Accordingly, the detainees might argue that the Defense Department is required, pursuant to
FARRA, to enact regulations explaining how DOD complies with the CAT and might claim
that they are entitled to challenge transfers under the APA (following the Cornejo-Barreto I
rationale). 177 This would, of course, open up another vein of litigation.
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D. Wartime transfers of detainees
Armed conflict presents another arena in which the U.S. government has used diplomatic
assurances. In at least one ongoing armed conflict, the United States has detained people in
a foreign state and, in advance of turning the individuals over to that state, has obtained a
commitment from the state that it will treat the individuals humanely. This relatively new
phenomenon reflects a policy decision, not a legal one: the law of war does not preclude a detaining
state from returning a combatant to his state of nationality, regardless of the detainee’s
fears of mistreatment. Nevertheless, if the United States continues to detain individuals outside
U.S. territory, whether during conventional military operations such as those taking place
in Afghanistan or as part of its fight against al Qaeda, there will be an increasing number of
situations in which the United States may wish to obtain assurances as a policy matter before
relinquishing custody of individuals to foreign states.
Here, too, the U.S. government has faced litigation by individuals contesting their transfers,
and has argued that the Executive is the sole entity to assess whether transfers are appropriate.
These wartime situations raise particularly complicated and novel questions because the
individuals opposing their transfers to another state’s custody are being held by the United
States in that other state. Several lower federal courts have ruled against the United States to
date, but some of the cases related to these wartime transfers will be resolved in the wake of
the Supreme Court decisions in Boumediene and Munaf v. Geren. 178 Even here, though, the
Court’s decisions will not resolve many of the questions related to U.S. transfers to the custody
of foreign countries of non-U.S. citizens detained during armed conflict.
1. Legal/policy framework
a. Third Geneva Convention
The Third Geneva Convention (“GC III”) did not envision that transfers of prisoners of war
(“POWs”) back to their state of nationality would raise treatment concerns. 179 Article 118
provides, “Prisoners of war shall be released and repatriated without delay after the cessation
of active hostilities.” 180 As Professor Meron has stated, “The language of Article 118 is clear
and categorical. A prisoner has a clear right to be repatriated, the detaining country has a
similar obligation to return the prisoner, and the prisoner should not be subjected to pressure
by the detaining country to reject repatriation.” 181
The article is silent about what happens to a POW who genuinely fears repatriation, which
poses what Meron calls “a major human rights dilemma.” 182 He notes, “While the principle of
individual choice and the interest in ensuring the protection of individuals were taken into ac-
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count in Article 45 of the Fourth Geneva Convention, which provides that protected persons
shall not be transferred to a country where they fear persecution for political or religious beliefs,
the Third Geneva Convention does not confer such protection.” 183 During negotiations
on GC III, no state condemned the notion of forced repatriation. 184 Indeed, the large majority
of delegates rejected an Austrian proposal to give POWs the right to apply for their transfer to
any other country (besides their country of origin) that was willing to accept them. 185
State practice related to Article 118 suggests a policy evolution, if not a legal evolution, in the
meaning of this provision. After the Korean War, “North Korea, China, and the USSR contended
that under Article 118 of the Third Geneva Convention, the obligation to repatriate
all prisoners of war was absolute and that Article 7 provided that prisoners of war could not
waive their rights. The UN command argued that ‘forcible repatriation was inconsistent with
the . . . spirit of the Geneva Convention.’” 186 The issue also arose in the Iran-Iraq war, where
some POWs from both sides were concerned about returning home. Some Iranian POWs
remained in Iraq, and some Iraqi POWs remained in Iran. At the end of the first Gulf War,
some Iraqi POWs opted not to return to Iraq; Saudi Arabia and the United States granted
them refugee status. 187 There has thus been an increasing willingness by states to respect the
wishes of POWs who fear returning to their state of nationality, and some creative efforts to
address the problem of what to do with those POWs.
In any event, this state practice has focused only on those who are entitled to POW status, not
to belligerents who are detained in non-international armed conflict or who fail to meet the
requirements of GC III for POW status.
b. Fourth Geneva Convention
As Meron notes, the Fourth Geneva Convention (“GC IV”) offers slightly more protection
against “non-refoulement” than GC III, although even there the protections are not absolute.
For individual “protected persons” in the territory of a party to the conflict, GC IV states, “In
no circumstances shall a protected person be transferred to a country where he or she may
have reason to fear persecution for his or her political opinions or religious beliefs.” 188 However,
the article also notes, “The provisions of this Article do not constitute an obstacle to
the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities,
of protected persons accused of offenses against ordinary criminal law.” 189 Thus, GC IV
contemplates that a lawful extradition request would trump any persecution concerns that a
protected person might raise regarding his transfer to the requesting state.
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c. Non-international armed conflict
Common Article 3 and, for those states that are parties to it, 1977 Additional Protocol II (“AP
II”), provide the law of war treaty rules related to non-international armed conflict. Neither
Common Article 3 nor AP II addresses transfers of individuals by detaining powers to other
powers. This is not surprising, given that these treaty provisions are primarily directed at conflicts
that occur in the territory of one state. Thus, the usual paradigm would be that a state
detains rebel fighters and rebel fighters detain state armed forces, all within one state. The
treaties do not contemplate situations in which one or more states operates in another state
during a non-international armed conflict; however, this arguably is the situation today in
Iraq and Afghanistan.
d. U.S. view of applicable law and policy
Each future armed conflict will offer unique fact patterns and issues, and the United States
will have to evaluate on a case-by-case basis whether it believes that it has non-refoulement
obligations that attach to none, some, or all of the individuals it detains. In the case of Afghanistan,
the United States has not treated members of the Taliban and al Qaeda (whether
held in Afghanistan or Guantanamo) as POWs – and even if it had, the law of war contains no
limitations on transfers of POWs back to states of nationality. Further, most of the provisions
of GC IV would only have applied to the United States if it occupied Afghanistan (which it
did not) or if it held Afghan nationals in U.S. territory (which it has not). In addition, although
a UN Security Council Resolution authorizes ISAF to take all necessary measures to
provide security to Afghanistan, its text does not offer any guidance on detainee transfers. 190
In the absence of a clear treaty framework or Security Council Resolution provision on detainee
treatment generally, the United States is treating the detainees consistent with DOD Detainee
Directive 2310.01E, which provides explicit treatment standards, but which also is silent
regarding transfers to foreign governments. 191 The United States does not consider that Article
3 of the CAT or the Protocol relating to the Status of Refugees applies to its activities overseas.
Therefore, the only relevant guidance on this issue is its “no transfers to torture” policy.
The Afghanistan situation is different in some important ways from the Guantanamo situation.
Where one state is operating in another state with the latter’s permission, general principles
of territorial sovereignty make less clear the extent to which the first state can refuse to
release people from its custody because of the human rights record of the territorial state. The
practical consequences are unclear and untested. Would the first state have to detain the individuals
permanently? Remove the individuals over the objection of the territorial sovereign,
and, if so, to where? Accordingly, although the U.S. government has adopted humanitarian
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policies that are mindful of the risks of torture and abuse, it is not entirely clear the extent to
which the United States applies the same non-refoulement policy in these contexts as it does
in situations in which it transfers an individual across national borders.
2. Litigation
The U.S. government has faced litigation both in the context of transfers to the Afghan government
(where assurances are in place), and in the context of transfers of certain detainees to
the Iraqi government (where no such assurances exist). Both contexts illustrate the difficulties
in and implications of having courts review proposed transfers of detainees held overseas
during wartime, even in the face of claims of future torture. The Afghan case is particularly
stark, because the detainees there are Afghan nationals, detained and held in Afghanistan but
seeking protections from U.S. courts. 192
a. U.S.-Afghanistan Arrangement
During the Afghanistan conflict, the United States – both as part of Operation Enduring
Freedom and ISAF – has detained hundreds of people. It releases some people quickly, holds
some in its own detention facilities at Bagram, and transfers some to the Islamic Republic of
Afghanistan (“IROA”). Indeed, in 2005 states contributing to ISAF agreed to transfer detainees
held by ISAF forces to the IROA within 96 hours of detention, with certain limited exceptions.
193 To that end, several ISAF states obtained commitments from the IROA to treat these
detainees humanely. 194
The United States also has concluded such an arrangement, presumably in furtherance of
its “no transfer to torture” policy, although it has not made the arrangement’s text public. 195
According to news reports, the arrangement states that the IROA agrees to treat detainees
humanely and in a manner consistent with applicable international obligations; to refrain
from torture; to allow the United States or a third party such as the ICRC access to the detainees
to verify the assurances; to investigate, detain, and prosecute the detainee to the fullest
extent possible; and to provide the United States with advance notice and place the detainee
on a watch list if the IROA decides to release a detainee. 196 The arrangement appears to cover
transfers from both Guantanamo and the U.S. detention facility at Bagram. 197
The United States, with other ISAF partners, has concluded a subsequent arrangement with
the IROA that gives ISAF even greater access to detainees ISAF has transferred. 198 The letter,
which affects the interpretation of the ISAF bilateral arrangements, provides that those arrangements
are to be interpreted as permitting officials from each signatory government “to
enjoy access to Afghan detention facilities to the extent necessary to ascertain the location
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and treatment of any detainee transferred by that government to the Government of Afghanistan.”
199 It provides the ISAF governments with the opportunity for private interviews with
transferred detainees, and permits the ICRC and the Afghan Independent Human Rights
Commission to gain access to IROA facilities. 200
To date, several detainees held at Bagram have sought stays in U.S. courts seeking to prevent
their transfers to the IROA. 201 Haji Rohullah and Ruzatullah, two Afghan nationals detained
as enemy combatants by U.S. forces in Afghanistan and held at the Bagram detention facility,
originally sought habeas relief in connection with that detention. Several months later, the
U.S. government transferred Ruzatullah to Afghan custody. Rohullah then sought an order
requiring the U.S. government to provide thirty days’ advance notice of his transfer to the
IROA, which he claimed might torture or abuse him. 202
The United States opposed the motion, arguing that habeas jurisdiction has never extended
to alien detainees held overseas (except to those at Guantanamo) and that the MCA removed
any doubt about the court’s lack of jurisdiction. The U.S. government also submitted that
for a U.S. court to condition U.S. transfers of Afghan citizens to the IROA would require the
court to insert itself into the “most sensitive of diplomatic matters,” particularly where the
United States has a military presence in that country. Arguing that transfers implicate both
the Executive’s conduct in foreign relations and its war-making power, the government cited
the rule of non-inquiry as well as the act of state doctrine.
This did not persuade the district court, which granted Rohullah’s motion. The court believed
that the Supreme Court’s pending decision in Boumediene called into question the Court of
Appeals decision that aliens detained by the United States outside its territory do not have
habeas corpus rights, and that the Court’s decision “is likely to directly affect the outcome of ”
Rohullah. 203 It is not clear what effect the Boumediene or Munaf decisions will have on the
Rohullah case, however: Munaf concerned U.S. citizens, not aliens, and Boumediene focused
on the unique aspects of detention in Guantanamo.
Even if the Court had concluded that alien detainees held outside Guantanamo had habeas
corpus rights, Munaf illustrates the type of problems courts will have in granting substantive
relief to individuals like Rohullah, even in a situation in which a court concluded that a
detainee would face torture if the U.S. government transferred him. Would the court order
the United States to continue to hold him? To release him in Afghanistan without telling the
IROA where and when it released him? To show the court the Afghan assurances? To bring
the detainee to the United States? The Supreme Court confronted some of these issues in
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Munaf and Omar, consolidated cases arising from potential transfers to the Government of
Iraq (“GOI”), albeit in the absence of assurances.
b. Omar and Munaf
In contrast with its approach in Afghanistan, the United States does not appear to have concluded
diplomatic assurances with the GOI regarding treatment of the detainees it transfers to
Iraq, even though the factual situation is quite similar to Afghanistan. One explanation might
be that the United States is working very closely with the Iraqi Ministry of Justice and the
Central Criminal Court of Iraq (“CCCI”) to ensure that Iraq’s prison facilities and criminal
court processes are humane and fair. Although diplomatic assurances are not in play in the
Iraq cases, the guidance that the Supreme Court issued nevertheless may prove instructive in
the cases from Afghanistan.
Shawqi Omar and Mohammed Munaf are, respectively, dual U.S.-Jordanian and U.S.-Iraqi
citizens who were detained in Iraq for security reasons by the Multi-National Forces – Iraq
(“MNF-I”), to which the United States provides the large majority of forces. MNF-I transferred
legal (but not physical) custody of Munaf to the Iraqi government, which tried and
convicted him and sentenced him to death. 204 MNF-I retains legal and physical custody of
Omar, although MNF-I sought to transfer his case to the CCCI in August 2005. Omar and
Munaf filed habeas petitions challenging their detention, and Omar sought and obtained an
injunction preventing MNF-I from transferring him to the GOI. Both sought release from
MNF-I custody.
The Supreme Court granted certiorari in the two cases to decide whether U.S. courts had
jurisdiction to entertain habeas corpus petitions by individuals challenging their detention
in MNF-I custody. 205 The United States argued that U.S. courts lacked jurisdiction over these
habeas petitions because the individuals were in the custody of an international force and because
of separation of powers principles, and submitted that U.S. courts lacked the authority
to deny the GOI criminal jurisdiction over individuals within its borders. 206 Munaf and Omar
asserted that, because they were being detained in the exclusive control of the U.S. military,
U.S. courts had jurisdiction over their habeas petitions.
The Court held that the habeas statute extended to American citizens held overseas by U.S.
forces that were operating in a U.S. chain of command. 207 However, the Court also held that
federal district courts could not enjoin the United States from transferring to a foreign sovereign
for prosecution individuals detained within the territory of that foreign sovereign and
accused of committing crimes. 208
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In addition to their general interest in not being transferred to the GOI, Omar and Munaf both
claimed that they would be tortured if turned over to the GOI. 209 The Supreme Court brief
for the Federal Parties stated without citation, “The United States would object to the MNF-I’s
transfer of Omar or Munaf to Iraqi custody if it believed that they would likely be tortured.” 210
This is consistent with the approach of the United States in the extradition context: stating that
the Executive Branch would object to a transfer of someone to face torture, but asserting that
it is for the Executive, not the courts, to make that determination. The sentence in the brief
presumably flows from the U.S. non-refoulement policy, not a legal obligation.
The Court noted that the torture allegations were “a matter of serious concern,” but concluded
that “in the present context that concern is to be addressed by the political branches,
not the judiciary.” 211 The Court continued, “The Judiciary is not suited to second-guess such
determinations—determinations that would require federal courts to pass judgment on
foreign justice systems . . . . [T]he political branches are well situated to consider sensitive
foreign policy issues, such as whether there is a serious prospect of torture at the hands of an
ally, and what to do about it if there is.” 212 This tracks the traditional “rule of non-inquiry”
approach discussed above.
However, in his concurrence, Justice Souter stated:
The Court accordingly reserves judgment on an “extreme case in which the Executive
has determined that a detainee [in United States custody] is likely to be tortured but decides
to transfer him anyway.” . . . [N]othing in today’s opinion should be read as foreclosing
relief for a citizen of the United States who resists transfer, say, from the American
military to a foreign government for prosecution in a case of that sort, and I would
extend the caveat to a case in which the probability of torture is well documented, even
if the Executive fails to acknowledge it. . . . [I]f the political branches did favor transfer
it would be in order to ask whether substantive due process bars the Government from
consigning its own people to torture. 213
The majority’s (and concurrence’s) discussion contains faint overtones of the “humanitarian
exception” discussed in several extradition cases, although the decision clearly preserves
the political branches’ traditional role in assessing the likely treatment that a transferee will
receive upon transfer. Because the Court’s decision in Munaf focuses on the U.S. nationality
of the detainees, the holding may not have wide application in other armed conflicts. It
seems likely, though, that individuals held in the United States (both U.S. citizens and those
who may have acquired certain U.S. constitutional rights) will invoke language from Justice
Souter’s concurrence to urge federal courts to review decisions by the United States to transfer
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a person to a country where, in the view of those individuals, “the probability of torture is well
documented.” It is not clear, of course, that courts will find this argument persuasive.
c. Noriega
Although not a case flowing from active hostilities, the United States recently sought assurances
in a POW transfer context, pursuant to Article 12 of GC III, and in litigation contested
the court’s ability to consider the POW’s likely treatment after transfer. In 2007, the United
States filed an extradition request of behalf of France, which sought to extradite General Manuel
Noriega to stand trial on money-laundering charges. The United States tried and convicted
Noriega on narcotics-related offenses in 1992; he was due to complete his sentence in 2007.
Because a U.S. court previously had determined that Noriega was a POW, and because Article
12 of GC III states that POWs “may only be transferred by the Detaining Power to a Power
which is a party to the Convention and after the Detaining Power has satisfied itself of the
willingness and ability of such transferee Power to apply the Convention,” the United States
obtained assurances from the French government that it would treat General Manuel Noriega
consistent with GC III. 214
Noriega challenged his extradition, alleging that France did not intend to abide by GC III in
its treatment of him. 215 The District Court, granting in part Noriega’s emergency motion for
stay of extradition, ordered Noriega to produce credible evidence to support that allegation.
The court’s order also stated that
[t]o the extent that the United States is unable to confirm current compliance with
Article 12 of the Convention, this Court will require that the confidential communications
between France and the United States, upon which the United States relies for its
assertions that it “has satisfied itself of the willingness and ability of [France] to apply the
Convention,” be produced. To preserve the confidential and diplomatic nature of such
communications, this Court simply will review the communications privately, and will
return them immediately . . . . The documents will not be made available to the public,
nor to the Defendant, absent the agreement of the United States. 216
The district court subsequently lifted the stay and dismissed Noriega’s case. 217 Although the
court’s reasons are not completely clear, it appears that the court concluded (1) that Noriega
had sought a stay in an attempt to have the court revisit its conclusion that GC III did not bar
his extradition to France; (2) that the court lacked jurisdiction to consider his claims regarding
treatment in France; and (3) that the court believed that France would treat him consistent
with his POW status. In support of its opposition to the stay, the United States filed an affidavit
explaining in some detail the treatment to which France had committed, presumably as
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a substitute for sharing the assurances with the court. The court cited that affidavit to assure
itself that Noriega would retain all of his rights as a POW in France. Noriega has appealed the
decision to the Eleventh Circuit. 218
This use of assurances is not unprecedented in the POW context, although earlier POW
transfers to third states did not result in litigation. 219 This case represents another instance in
which the United States, in response to efforts by a court to review the assurances, provided
a substitute in the form of an affidavit. Here, the case resolved itself on different grounds,
avoiding a clash between the Executive and the court about the court’s ability (or responsibility)
to review treatment concerns, but it seems likely that the United States will in the future
continue to seek assurances in POW transfer cases, to ensure its own compliance with Article
12, especially in transfers where the state receiving the POW has a questionable human rights
record. Less clear is whether the U.S. government will seek these kinds of assurances when
repatriating POWs to their own country, rather than to third countries.
Like the extradition and removal cases, the Guantanamo and wartime cases illustrate an
ongoing struggle by courts to determine what their role should be in evaluating U.S law and
obligations related to transfers in the face of torture claims.
E. Conclusion
To date, many people in U.S. custody confronting transfers in the face of CAT claims have
challenged these transfers in court. Absent a Supreme Court decision expressly upholding
the Executive Branch’s exclusive authority to decide these transfers, this litigation is unlikely
to slow down. 220 In many of these cases, courts have found themselves without a clear way
ahead, resulting in inconsistent decisions.
For example, in most extradition cases, courts have declined to review treatment fears, but
there are competing views of whether FARRA permits review and lingering dicta about a “humanitarian
exception” to the rule of non-inquiry. In the limited number of deportation cases
in which the United States sought assurances to overcome torture fears, courts generally have
declined to review the assurances, but the recent Khouzam case is an important exception.
With regard to the Guantanamo cases and the two Bagram cases, some courts have granted
thirty days’ notice requirements without analyzing what the courts actually could do in the
face of a U.S. notice of transfer. In the cases that the government lost, an intervening factor
mitigated the costs to the government of each adverse outcome. 221
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There is a good chance that the Supreme Court could grant certiorari in the next few years to
consider the issue of the type raised in Cornejo-Barreto, Mironescu, and Khouzam: whether
courts may review the substantive basis for the Executive Branch’s decision to extradite or
remove someone in the face of torture claims. Even if the issue remains in the lower courts,
recent cases forecast that some U.S. courts will continue to seek ways to review the substance
of that decision, although it is not clear what basis for or standard of review they might use.
If courts increasingly preclude the United States from removing individuals from the United
States even though the United States believes that they pose a risk to national security, the
government may decide to test the notional national security exception in Zadvydas, a case
that otherwise limits the length of time the United States may detain a person ordered removed,
or the PATRIOT Act provision permitting six-month renewable detentions.
The Supreme Court’s decision in Boumediene likely will open additional avenues of litigation
to Guantanamo detainees who object to their transfers. If the United States changes its
Guantanamo policy, and decides to bring individuals from Guantanamo to the United States
for trial or continued detention, litigation regarding returns in the face of torture concerns is
only likely to increase. This also is true if the United States creates a forward-looking security
detention program that contemplates finite security detention and eventual release. Finally,
if the United States brings members of the Taliban to the United States, the detainees’ lawyers
may well argue that they are entitled to protected person status under GC IV, and thus that
their transfers are subject to Article 45 of GC IV as a matter of law.
IV. Other Difficulties with the Use of Assurances
While litigation has posed the most tangible and time-consuming problem to the U.S. use of
assurances, the government faces two additional problems with their use: criticisms by human
rights groups about the efficacy of assurances and draft legislation from Congress that would
eliminate assurances as a tool.
A. Human rights criticisms of diplomatic assurances
Human rights groups have been the most vocal opponents of assurances, and often represent
in court individuals who are contesting their transfers by the U.S. government. Many groups
have called for a total ban, while others have sought more stringent monitoring mechanisms
to give teeth to the assurances. 222 Critics claim that current practice shrouds the assurances in
a veil of secrecy. At the same time, the fact that only the Executive Branch reviews the assur-
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ances leads these critics to conclude that the decision-maker has a vested interest in concluding
that the assurances are reliable. In part because the Executive Branch faces widespread
criticism over issues related to detention, Guantanamo, and torture, a unilateral reliance
by the Executive Branch on assurances (which the public associates with all three issues) is
viewed with similar skepticism. The criticisms may have gained additional traction in the
public’s mind because the U.S. government has not responded directly to these criticisms.
The criticisms generally fall into five basic categories: (1) concerns about the nature of the
receiving states’ regimes and their approach to their treaty obligations; (2) concerns about
the nature of torture and the related insufficiency of monitoring mechanisms; (3) past failures
of diplomatic assurances; (4) the lack of an enforcement mechanism; and (5) “signaling”
concerns. 223
When all of these criticisms are taken together, many human rights groups have concluded
that diplomatic assurances are ineffective and unable to overcome concerns about torture or
ill-treatment, and therefore that any effort by a transferring state to transfer a person to a receiving
state in this scenario violates the transferring state’s legal obligations (whether derived
from the CAT or customary international law) not to expose individuals to the danger of
torture and not to “refoule” anyone. 224
1. Weaknesses of receiving states’ regimes
The first basket of criticisms relates to concerns about the receiving state’s compliance with its
existing human rights obligations. 225 In this view, the receiving state already is bound by legal
obligations that commit it to not torture those in its territory (whether through the CAT or
the ICCPR, or through what many assert is a CIL prohibition against torture). Thus, if a state
has a reputation for torturing those in its custody, it already is violating a legal obligation. In
this view, there is no basis on which to trust the assurances, because the receiving state already
has breached the trust of its treaty partners on a multi-lateral level. 226 As a related matter,
torture often occurs in states with weak institutions; therefore, even if one part of the government
provides a good faith assurance against mistreatment, the human rights groups have
little confidence that a particular part of the government can speak for and exercise control
over all state officials. 227
In contrast, many transferring states do not view assurances as inherently unreliable. These
states believe that the use of assurances, which focus the receiving state’s attention on specific
individuals and create a deterrent effect in the form of possible tensions in the bilateral relationship
if it breaches the assurances, can lower the risk of mistreatment below the threshold level of
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“substantial grounds” in the CAT. 228 In this view, human rights groups appear to be seeking to
avoid any element of uncertainty regarding possible ill-treatment; that goal, while worthy, is neither
legally required nor practically achievable. States also point to the fact that, in most cases,
the individuals they transfer with assurances have not been tortured after transfer.
2. Nature of torture
In the view of many human rights groups, it is difficult to identify when torture has taken
place, as it almost always occurs in secret. Further, those subject to torture lack the opportunity
to report it and, even if given the chance, often are too intimidated to do so. Even if
permitted to meet with monitors privately, some detainees will be unwilling to report abuse
because they believe the state will be able to track the claims back to that detainee and treat
him harshly. Additionally, those intent on using torture may be skilled at hiding those acts of
torture from investigators, including by using techniques that do not leave outward marks. 229
Relatedly, human rights groups view as ineffective the monitoring regimes that often are built
into assurances and believe that monitoring by definition can only address torture or mistreatment
after the fact. 230
In the view of states that rely on assurances, monitoring serves as a deterrent against mistreatment.
Monitoring thus serves not only as a post hoc “band-aid” but also as a means of
preventing mistreatment ex ante. Provisions that permit the transferring state, the ICRC, or
other groups to visit detainees at times of their choosing create an additional disincentive to
mistreat detainees.
3. Past failures of assurances
To prove that transferring states should have no confidence about assurances in the future,
human rights groups often point to previous cases in which they claim that assurances have
failed. Among the cases they cite are those of Agiza, Arar, and certain Guantanamo detainees
returned to Russia and Tunisia. Human Rights Watch (“HRW”) alleges that all of these
individuals have been mistreated after being transferred. 231 Further, these groups argue that
neither the transferring state nor the receiving state has an incentive to report publicly that
a transferee has been tortured, as it represents a failure of the bilateral agreement and strains
diplomatic relations. 232
In the view of some states, it is not appropriate to judge a receiving state’s future behavior entirely
on the basis of its past behavior. In this view, it is important to recognize that states can
change. The peace and reconciliation process in Algeria offers a good example of this type of
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change, which can reduce tensions between state forces and non-state armed groups, of which
many transferees are part. This type of change arguably affects a receiving state’s calculus about
its perceived need to use coercion against detainees and about the reputational costs of coercion
bilaterally or internationally. Further, no entity has conducted a comprehensive, empirical study
about how receiving states have treated all detainees transferred in the context of assurances.
Although there are a few specific reports of mistreatment, as in the Arar and Agiza cases, there is
little or no reporting on the vast number of cases in which states have used assurances. 233
4. Unenforceability
Yet another objection by human rights groups is that assurances (whether in the form of agreements
or letters) are legally unenforceable. 234 Specifically, they note that the transferring state
lacks legal recourse if it discovers that the receiving state has violated the assurances, and that
the person injured has no recourse in either the transferring or receiving state. 235 Despite this
dislike of assurances, these groups also object to decisions by governments to keep the terms of
the assurances confidential when they exist. 236
States using diplomatic assurances would respond that most treaties, even if legally binding,
also are practically unenforceable. Few treaties contain dispute-resolution mechanisms or
specific provisions that contemplate counter-measures in the event of a violation. Thus, the
practical consequences of violating a non-legally binding commitment may be much the same
as for violating a legally binding agreement. The consequences include diplomatic protest,
counter-measures (for instance, withdrawing bilateral cooperation or some other desired
action), and refusal by the transferring state and others to send people to that country on the
basis of assurances in future cases. Therefore, this complaint evidences some lack of understanding
of general treaty practice; there is little to suggest that one would see a different level
of compliance by receiving states if assurances were crafted as treaties.
5. Symbolic concerns
The final basket of concerns is about what the use of assurances can symbolize. This includes
concerns that the use of diplomatic assurances creates a two-tiered system: those individuals
who receive “special” protections, and the rest of the detainee population in the receiving
country. 237 Relatedly, human rights groups view the use of assurances as a signal by the transferring
state that it is willing to accept the mistreatment of others in the receiving state, as long
as the receiving state commits to treat individuals from the transferring state appropriately. 238
Further, in the U.S. context, some have argued that the United States signals a limited commitment
to abolishing torture around the world when the State Department issues its annual
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human rights report criticizing a receiving country’s treatment of prisoners and the United
States then transfers someone into that system.
Most states probably would not quibble with a suggestion that transferring states are treating
certain individuals differently than the rest of the receiving states’ populations. This is simply
a fact of life: transferring states do not have the responsibility, authority, or capacity to monitor
the welfare of a national of a receiving state in the receiving state’s detention facilities who
never set foot in the transferring state. It may seem unjust, but the alternative is impossible
– it cannot be the case that states such as the UK, Sweden, and Germany have an affirmative
responsibility to ensure that no Algerians, Egyptians, Libyans, and Moroccans living in those
countries are ever tortured. 239 Further, states may argue that assurances do nothing to undercut
the prohibition against torture. Rather, they enhance the ban by calling the attention of
the receiving state to the expectations of the transferring state, in a scenario that makes it clear
that the transferring state condemns torture.
B. Congressional concerns about assurances
A few members of Congress, perhaps responding to these human rights criticisms, have tried
to regulate the use of diplomatic assurances. There may be advantages to having Congress
clarify the rules for the use of assurances and make difficult policy decisions that U.S. courts
should not have to make. But the draft legislation produced to date virtually obviates the use
of assurances, unduly limiting the Executive Branch’s flexibility in undertaking a complex
balancing test. Further, each bill by its terms contemplates increased litigation.
1. Markey and Leahy bills
Representative Markey introduced a bill in 2005 entitled the “Torture Outsourcing Prevention
Act.” In March 2007 he reintroduced the bill with sixty co-sponsors. 240 Under that bill, the
Secretary of State would be required to submit an annual report to Congress that contained a
list of countries where there are substantial grounds for believing that torture or cruel, inhuman,
or degrading treatment “is commonly used in the detention or interrogation of individuals.”
241 The United States would then be prohibited from transferring any person imprisoned,
held, or detained in U.S. custody to a country on that list. 242
The bill would create a process requirement as well, stating that no person, regardless of his
nationality or location, be rendered, returned, or otherwise transferred by the United States
to any otherwise permitted country “unless the person has been given an opportunity to
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challenge the rendering, return, or transfer in a court of the United States . . . on the grounds
that the person would . . . be in danger of being subjected” to torture or cruel, inhuman, or
degrading treatment (“CIDT”). 243 This provision would effectively terminate future renditions
by the United States from state A to state B, as it would appear to require the United States to
bring the person subject to that rendition to the United States before it sent him to state B.
The provision also appears to preclude the United States from returning someone voluntarily
to a state listed in the annual report. By virtue of the standards it would impose, it would
prohibit far more transfers than currently is required under the CAT.
The Markey bill would permit the Secretary of State to waive the prohibition on transfers to
the listed states if she certifies that the listed state has ended those acts of torture or CIDT and
“there is in place a mechanism that assures the United States in a verifiable manner that a person
rendered, returned, or otherwise transferred will not be tortured or subjected to [CIDT],
including, at a minimum, immediate, unfettered, and continuing access, from the point of
return, to each such person by an independent humanitarian organization.” Under the bill,
diplomatic assurances would not be sufficient to establish that mechanism. 244 This would
impose a high standard: it requires the United States to conclude that a state has ended all acts
of torture or CIDT; to acquire a very high level of confidence that the transferee would not be
subject to CIDT; and to negotiate detailed access provisions for NGOs in states that have not
tended to be particularly open, without being able to use assurances. 245
The bill would exclude from its scope extraditions made pursuant to a treaty, but only if the
person may, before his extradition, obtain “recourse to a court in the United States of competent
jurisdiction to challenge the extradition on the basis that there are substantial grounds for
believing that the person would be in danger” of being subjected to torture or CIDT. 246 Here,
too, the bill precludes the United States from relying on written or verbal assurances from the
receiving state. 247
Finally, the bill would require all of the relevant executive agencies, including State, DOJ, DHS,
DOD, and the CIA, to issue regulations setting forth the “process by which a person may raise
and adjudicate in an independent judicial forum a claim that his or her transfer” would violate
Article 3 of the CAT, “including the process by which the individual being transferred can challenge
any diplomatic or other assurances received from the government to which the individual
would be returned that the individual will not be subjected to torture or ill-treatment.” 248
Thus, the bill would specifically require the executive agencies to permit individuals to challenge
in court – and presumably permit the court and the individual to review – any diplomatic
assurances received (even though the bill would declare assurances insufficient ab initio).
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In 2005 Senator Leahy introduced a similar bill in the Senate, with eight co-sponsors. 249 Like
Rep. Markey’s bill, Sen. Leahy’s bill would deem written or verbal assurances made to the
United States by the receiving state that persons in its custody or control would not be tortured
an insufficient basis for believing that a person is not in danger of being tortured. 250
2. Biden bill
Senator Biden introduced a bill in 2007 that would subject renditions to a detailed review
procedure. The bill envisions that the Executive would have to assert a good faith belief that
the country receiving the individual would not subject him to torture or CIDT and that the
Foreign Intelligence Surveillance Act (“FISA”) court would have to evaluate whether “the
application, and such other information as is available to the judge, including reports of the
Department of State and the United Nations Committee Against Torture and information
concerning the specific characteristics and circumstances of the individual, establish a substantial
likelihood that the country to which the individual is to be rendered will not subject
the individual to torture or to cruel, inhuman, or degrading treatment.” 251 Although the bill
is not explicit about whether the FISA court would review any assurances that the U.S. government
received in establishing its “good faith belief,” the requirement that the Executive
submit a “statement of the facts and circumstances relied upon by the applicant to justify” its
good faith belief presumably would include the contents of the assurances in that statement
of facts on which the United States relied.
V. European and Canadian Uses of Diplomatic Assurances
A. Introduction: key differences
Like the U.S. government, many European governments and Canada rely on diplomatic
assurances to meet their non-refoulement obligations in the face of concerns about mistreatment
after transfer. Also like the United States, these governments face strong criticism by
human rights groups for using assurances, and have faced litigation by individuals challenging
their transfers due to concerns about future torture.
There are several key differences between the practice of the United States and its allies, however.
252 First, the United States and European states have undertaken different legal obligations
regarding the transfer standards (and, correspondingly, the content of the diplomatic assurances
that each receives is different). Second, European states and Canada as a matter of law must
share with their courts and transferees the diplomatic assurances they receive from foreign governments.
As described above, the U.S. Executive Branch consistently has declined to do so.
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This Part explores how European states and Canada – and their courts – have handled the
same categories of cases as those discussed in Part III, within regimes that mandate full – or,
in Canada’s case, at least partial – review of transfer decisions and assurances. The experience
of these states strongly suggests that, even if it is not sustainable for the United States to maintain
its position opposing any judicial review of transfers, it is not desirable for the United
States to move to a system of de novo judicial review of transfers either.
B. Deportation
1. European Convention on Human Rights
The ECHR contains two articles that delineate Contracting States’ obligations regarding
torture and inhuman or degrading treatment. Article 1 states, “The High Contracting Parties
shall secure to everyone within their jurisdiction the rights and freedoms defined in Section
I of this Convention.” Article 3, which is located in Section I, provides, “No one shall be subjected
to torture or to inhuman or degrading treatment or punishment.” On its face, Article 3
appears to impose a direct requirement on the Parties themselves not to engage in torture or
inhuman or degrading treatment, but does not contain an express non-refoulement obligation.
Caselaw from the European Court of Human Rights (“ECtHR”), however, has fleshed
out the obligations of Contracting States regarding the principle of non-refoulement.
2. European Court of Human Rights case law
a. Soering
In Soering v. United Kingdom, the ECtHR held that Article 3 implicitly imposes an obligation
on Contracting States not to expel a person to a country in which he would face a real risk
of being subjected to treatment contrary to Article 3. 253 That is, the ECtHR has extended the
obligations in the Convention to preclude transfer of an individual in cases in which the Contracting
State determines that there are substantial grounds for concluding that there is a real
risk that the receiving state would engage in acts against that individual that are prohibited by
the ECHR. 254 Other decisions have made clear that Contracting States may not derogate from
this provision during wartime or other states of emergency. 255
b. Chahal
Chahal v. United Kingdom put to the test diplomatic assurances obtained by an ECHR Contracting
State to overcome the non-refoulement obligations imposed on it by Soering. The UK
suspected Mr. Chahal, a Sikh separatist from India living in the UK, of terrorist activities and
sought to deport him as a national security risk. Chahal challenged the effort to deport him,
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claiming that the deportation would violate (among other provisions) Article 3 of the ECHR.
After Mr. Chahal raised these treatment concerns, the UK sought and received diplomatic
assurances from the Indian government regarding Mr. Chahal’s treatment. Those assurances
stated: “We have noted your request to have a formal assurance to the effect that, if Mr Karamjit
Singh Chahal were to be deported to India, he would enjoy the same legal protection as
any other Indian citizen, and that he would have no reason to expect to suffer mistreatment of
any kind at the hands of the Indian authorities. I have the honour to confirm the above.” 256
At the time, UK courts could review a decision of the Home Secretary to refuse asylum, but
could not engage in findings of fact within the province of the Secretary of State or substitute
their discretion for the Secretary’s. The courts could quash a decision only if the Secretary
failed to apply English law correctly, failed to take account of issues that he was required by
law to address, or if his decision was “so irrational or perverse that no reasonable Secretary of
State could have made it.” 257
The UK Court of Appeal held that UK law required the Home Secretary to weigh the threat
to Mr. Chahal’s life or freedom if he were deported against the threat to UK national security
if the UK let him stay. The UK Court of Appeal stated, “[T]here may very well be occasions
when the individual poses such a threat to this country and its inhabitants that considerations
of his personal safety and well-being become virtually irrelevant. Nonetheless one would expect
that the Secretary of State would balance the risks to this country against the risks to the
individual, albeit that the scales might properly be weighted in favor of the former.” 258
Chahal appealed to the ECtHR. In its submissions, the UK urged the ECtHR to accept this
balancing, and argued that courts should not engage in close judicial scrutiny of national security
issues. 259 Its submission stated, “[T]his balancing exercise is non-justiciable. It cannot be
the role of the national courts or the Convention organs to make any searching judicial inquiry
of national security matters, once raised by the Member State in good faith. It is not possible to
evaluate the evidence on which the executive bases its decision on national security.” 260
The ECtHR rejected the idea that a state could balance considerations of the treatment that
a deportee might face against the threat that the person posed to the state deporting him. It
stated:
Article 3 [of the ECHR] enshrines one of the most fundamental values of democratic
society. The Court is well aware of the immense difficulties faced by States in modern
times in protecting their communities from terrorist violence. However, even in
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these circumstances, the Convention prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the victim’s conduct. . . . Article 3
makes no provision for exceptions and no derogation from it is permissible . . . . [T]he
activities of the individual in question, however undesirable or dangerous, cannot be a
material consideration. 261
In evaluating the treatment that Mr. Chahal would likely face if returned to India, the Court
considered the diplomatic assurances that the UK obtained from India. 262 It did not challenge
the Indian government’s good faith in providing the assurances, but found that human rights
violations by members of the security forces in Punjab and elsewhere were a “recalcitrant and
enduring” problem, despite the efforts of the Indian government and its courts, and decided
that it was not persuaded that India’s assurances would “provide Mr. Chahal with an adequate
guarantee of safety.” 263
Seven of the judges filed a partial dissent. They agreed that a Contracting State could not take
into account national security considerations to justify the mistreatment of someone within
that State’s territory, but believed that, where the issue was whether a non-Contracting State
would engage in mistreatment, a Contracting State could legitimately “strike a fair balance between,
on the one hand, the nature of the threat to its national security interests if the person
concerned were to remain and, on the other, the extent of the potential risk of ill-treatment of
that person in the State of destination.” 264 The dissent distinguished the holding in Soering on
the basis of the certainty of the risk that awaited the individual applicant: in Soering, the UK
was considering extraditing the applicant to the United States to face the death penalty. The
dissent noted that the applicant would be “in the grip” of a legal process involving risks to him
that were much easier to assess than those of Mr. Chahal. 265
The Chahal court engaged in a de novo review of the UK’s decision to transfer Mr. Chahal on
the basis of India’s assurances. This case illustrates how easy it is for a court in this situation to
substitute its judgment for the Executive’s, even if the court has no unique expertise in evaluating
the likelihood that a person will face torture.
c. Revisiting Chahal
In the initial aftermath of Chahal, the UK, searching for alternatives to deportation, enacted
a law authorizing the government to detain indefinitely individuals designated as suspected
international terrorists. 266 After the 2005 terrorist attacks in London, the UK began quietly
and then overtly to question the decision in Chahal. 267 For instance, in September 2005, UK
Home Secretary Clarke obliquely asked whether the Chahal principle remained an appropriate
one, given the nature of the terrorist threat European states faced. 268
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To that end, the UK decided to urge the ECtHR to revisit the Chahal decision. In his testimony
before the UK Joint Committee on Human Rights, Home Secretary Clarke explained that
decision: “We think that the Chahal judgment, which was narrowly carried in the European
court, did not give sufficient account to some of the issues involved . . . and that is why we are
returning to the European court.” 269
Several cases pending before the ECtHR raised the same issues as Chahal and thus offered an
opportunity for the UK and other states (including Lithuania, Portugal, and Slovakia) to urge
the Court to revisit that decision. The governments intervened in Ramzy v. Netherlands and
Saadi v. Italy. 270
d. Joint intervention
The joint intervention of the UK, Lithuania, Portugal, and Slovakia invited the ECtHR to
overturn the aspects of Chahal that prohibit a balancing of an individual’s interest in not being
subjected to mistreatment against the transferring government’s national security interests. 271
The Joint Observations stated, “[N]ational security considerations can have an impact on
the threshold to be overcome by a person who is to be removed. In a case in which there is
material indicating a national security threat, it would be appropriate for it to be shown more
clearly, or to a higher standard, that a person might be ill-treated.” 272
In support of this approach, the governments asserted that Chahal posed practical problems
because of the absolute nature of the prohibition against removal and because of the low
threshold that an individual must show before the prohibition kicks in. 273 The governments’
Joint Observations explained that options other than the use of assurances often do not exist:
third states rarely are willing to accept these individuals, and it often is impossible to try the
person for criminal offenses (either because he has not yet committed an offense, or because
the state’s information derives from secret intelligence that is not usable in court). 274 A third
option, indefinite detention, poses different problems under the ECHR, as the UK House of
Lords concluded in 2004. 275
Human rights groups, a number of which submitted briefs in these cases, viewed the governments’
arguments as an attempt to dilute what those groups believe is the absolute character
of the prohibition against torture and inhuman and degrading treatment. 276 In contrast to
the approach in the Joint Observations, which would impose higher evidentiary standards
for high-threat applicants who allege likely mistreatment post-transfer, several human rights
groups would like to see the evidentiary standards lowered, because of the difficulties that applicants
face in obtaining evidence related to their likely ill-treatment. 277
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In March 2008, the Grand Chamber in Saadi unanimously rejected the arguments in the Joint
Observations, stating, “[T]he Court cannot accept the argument of the United Kingdom Government,
supported by the respondent Government, that a distinction must be drawn under
Article 3 between treatment inflicted directly by a signatory State and treatment that might
be inflicted by the authorities of another State, and that protection against this latter form of
ill-treatment should be weighed against the interests of the community as a whole.” 278 Despite
Italy’s allegations that Saadi was a member of an al Qaeda cell who had spent time in an
al Qaeda training camp and its suspicions that he plotted an attack to occur outside Italy, the
Court held that it would violate Article 3 for Italy to deport Saadi to Tunisia. 279 This decision
only increases the pressure on the UK and other states to obtain very robust assurances against
torture, as discussed in the next section, in order to be able to successfully deport dangerous
aliens.
3. United Kingdom
a. Evolution to current system
Of all countries in the European Union, the UK has been the most active in using diplomatic
assurances, and has seen the densest and fastest evolution in its laws related to deportations
and assurances. 280 This evolution explains the current heavy reliance on diplomatic assurances
and demonstrates other approaches that the UK has tried (and in some cases been
foreclosed from using).
Since 1971, under the Immigration Act, the Secretary of State for the Home Office has had the
power to identify and deport individuals he deems as “not conducive to the public good.” 281
In 1993, Parliament supplemented that power in the Asylum and Immigration Appeals Act
by permitting the Secretary to order the exclusion, deportation, or departure of individuals
for reasons of national security. 282 In these cases, an individual facing an adverse immigration
decision had recourse to a non-statutory advisory procedure. Under the advisory procedure,
the individual could make written or oral representations to an advisory panel that included
judges; could call witnesses; and could be assisted by a friend but not a lawyer. The Home
Secretary decided how much information to share with the individual, and the panel’s advice
to the Home Secretary was confidential. The Home Secretary had discretion whether to adopt
the panel’s advice. 283
In 1997, in the wake of Chahal, which concluded that these advisory panels did not provide
the type of effective remedy required under the ECHR, the UK created the Special Immigration
Appeals Commission (“SIAC”) to hear appeals related to decisions made under the
Immigration Act in cases in which the Home Secretary had invoked the “public good” or
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“national security” provisions discussed above. 284 The SIAC Act established that SIAC shall
grant an appeal if it considers “(i) that the decision or action against which the appeal is
brought was not in accordance with the law or with any immigration rules applicable to the
case, or (ii) where the decision or action involved the exercise of a discretion by the Secretary
of State or an officer, that the discretion should have been exercised differently,” and in every
other case shall dismiss the appeal. 285 This permits a de novo review of the Secretary of State’s
decision that there was not a real risk that the person would be subject to torture or inhuman
or degrading treatment if deported. 286
The law permitted SIAC to develop procedural rules that would permit it to conduct proceedings
even where the appellant was not given the full details of the reason for the decision
under review; to hold proceedings in the absence of the appellant and his lawyer; and to rely
on “special advocates” to represent the appellant’s interests before the SIAC in closed sessions.
287 Rule 35 of the SIAC Procedure Rules 2003 sets out the functions of special advocates:
to cross-examine witnesses, make written submissions, and make submissions at any hearings
from which the appellant parties have been excluded. 288
b. Increased reliance on diplomatic assurances
In 2001, following the attacks on the United States, Parliament enacted the Anti-Terrorism,
Crime and Security Act (“ATCSA”). 289 Section 23 of the ATCSA permitted the UK government
to detain “suspected international terrorists” pending deportation, even if it appeared
that the UK might have to detain the person indefinitely. As a UK Home Office paper explained,
“The ATCS Act Part 4 powers are special immigration powers, which allow the Home
Secretary to certify and detain, pending deportation, foreign nationals who are suspected of
involvement in international terrorism but whom he cannot remove from the United Kingdom.
. . . [Removal] may not be possible for a number of reasons but in most cases it derives
from a fear that deportation might result in those deported being subject, within their countries
of origin, to torture or inhuman or degrading treatment or punishment . . . .” 290
In December 2004, the House of Lords held that indefinite detention without charge of aliens
suspected of terrorism pursuant to ATCSA was not compatible with the UK’s Human Rights
Act and the ECHR. This deprived the UK of its ability to rely on indefinite detention and
forced it to consider more seriously the use of diplomatic assurances. 291 In 2005 and 2006, the
UK concluded MOUs with Libya, Lebanon, and Jordan, and agreed to an exchange of letters
with Algeria on deporting terrorist suspects. The current UK practice now relies heavily on
“deportations with assurances” to remove foreign nationals from UK territory. 292
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SIAC thus has been placed in a position of evaluating diplomatic assurances and has indicated
that the diplomatic assurances must be made public in the proceedings. 293 Either party to a
case may appeal a SIAC decision to the Court of Appeal on points of law material to the decision.
294 The Court of Appeal has held that “the acceptance of assurances depends on the facts
of each case, rather than upon the application of any rule of law or thumb.” 295
The scope of UK courts’ role in reviewing assurances remains somewhat controversial, even if
the fact that they review the assurances is not. For instance, in 2005 Home Secretary Clarke
argued that it would reflect a “neo-colonial” approach for courts to conclude that a UK MOU
was not worth the paper it was written on. 296 In testimony before the Joint Committee on
Human Rights, he stated, “I think it would be extraordinary if a British court were not to take
serious account of a memorandum of understanding seriously entered into by this government
and another government.” 297 Nevertheless, as discussed infra, SIAC has rejected the
UK’s reliance on its MOU with Libya in deporting individuals there.
c. Assurances in recent practice
There has been an evolution in the kind of assurances that the UK has deemed acceptable. In
the 2004 Youssef case, Prime Minister Blair apparently was interested in obtaining from Egypt
only an assurance that four deportees would not face torture if returned. 298 He reportedly
was willing to live without guarantees of access by UK officials to the four in Egyptian prison,
and without guarantees of access by the four to UK lawyers. (The government of Egypt was
unwilling to provide even the basic “no torture” assurances, so the individuals were not deported.)
In the 2005-06 arrangements, the UK obtained much broader sets of assurances.
As of February 2007, the UK Home Office reported that six terrorist suspects had been deported
to Algeria and one to France; 23 were awaiting deportation. Of those, four had lost their
appeals; three had withdrawn their appeals; and sixteen were awaiting hearings or decisions. 299
i. Jordan
The UK-Jordan MOU offers one example of the increasingly robust assurances that the UK
has obtained; that MOU addresses a range of treatment concerns well beyond “no torture”
commitments. 300 The MOU contemplates that it will apply to Jordanian citizens deported
from the UK; that the UK may seek assurances additional to those contained in the MOU;
and that Jordan will notify the UK of any sentences or criminal charges pending against an individual
deportee. The treatment assurances state that Jordan will: give an individual arrested
or detained adequate accommodation, food, and medical care; treat the person in a “humane
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and proper manner, in accordance with internationally accepted standards”; if it arrests the
person, bring him promptly before a judge to decide the lawfulness of his detention and
inform him of the reasons for his arrest; permit the person to follow his religious observance;
and give the person a fair and public trial without undue delay, with an independent tribunal
and a publicly announced judgment, the ability to prepare his defense, appear in person,
examine and cross-examine witnesses, and defend himself or have an attorney do so.
The MOU envisions that certain of Jordan’s undertakings will continue for at least three years
after a person returns there. Specifically, the document states that if Jordan arrests, detains, or
imprisons the person within three years of his return, “he will be entitled to contact, and then
have prompt and regular visits from the representative of an independent body nominated
jointly by the UK and Jordanian authorities” and Jordan will permit private interviews. The
independent body, the identity of and roles for which the governments agreed in separate
terms of reference, will report to the UK on its visits.
Abu Qatada was the first person to challenge a deportation order made on the basis of an
MOU. 301 The UK detained Qatada in August 2005 pending his deportation to Jordan, alleging
that he had long-standing associations with bin Laden, was a spiritual adviser to extremist Islamists
in the UK and abroad, and had issued fatwas justifying the killing of women and children
and justifying suicide bombings. 302 In May 2006, Qatada challenged his deportation and
the reliability of the Jordanian assurances before the SIAC, but it dismissed Qatada’s appeal.
Holding that it was not required to give deference to the Foreign Office’s assessment of the
situation in Jordan, and reaching its own conclusions about the evidence, the SIAC assessed
his likely treatment both before trial and after trial and concluded that, in each case, Qatada
did not face a “real risk” of torture. 303 SIAC focused on the fact that the MOU was concluded
at the highest levels of government, with Jordan’s intelligence services at the table; that Jordan
accepted significant scrutiny in the form of monitoring; and that it had strong incentives not
to violate the agreement. 304
Qatada appealed the SIAC decision to the Court of Appeal and won. 305 The Court was concerned
that evidence allegedly obtained by torture from other people might form part of Abu
Qatada’s future trial in Jordan. 306 The UK has stated that it plans to appeal.
ii. Libya
The UK has had even less success relying on its MOU with Libya. 307 Like the Jordan MOU,
the Libyan MOU commits Libya to treat UK deportees humanely, and states that the parties
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will nominate an independent monitoring body “to monitor the implementation of the assurances”
in the MOU. The monitoring body’s responsibilities include “monitoring the return
of, and any detention, trial or imprisonment of, the person.” The body will report both to the
UK and Libya. The deportee is to have unimpeded access to the monitoring body unless he is
arrested or detained, in which case he may meet with a representative of the monitoring body
within a week of his arrest and may receive private visits from that body at least once every
three weeks.
In May 2006, the UK and Libya agreed on an independent monitoring body: the Qadafi Development
Foundation (“QDF”), run by Col. Qadafi’s second son. 308 The states also concluded
terms of reference requiring that the monitoring body be independent of the government of
Libya; have sufficient capacity and expertise to monitor those in detention; and have access
to a range of independent medical and legal expertise. 309 A monitor would accompany the
person on his trip from the UK to his home or place of detention in Libya. 310
In April, 2007, SIAC heard the appeal of two Libyans the UK sought to deport. Both the UK
and Libya alleged that the individuals, referred to as DD and AS, were members of the Libyan
Islamic Fighting Group, which the Libyan government views as a terrorist group and a threat
to the state. The Secretary of State for the Home Department concluded that he would have
serious concerns about the real risks of mistreatment the two would face but for the MOU
with Libya. 311 The Home Secretary’s representative deemed it “well-nigh unthinkable” that
Libya would fail to comply with the assurances, given the positive way in which the UK and
Libyan relationship was developing. 312
The key question for SIAC was whether Libya would abide by the assurances in the MOU. 313
In answering this question, SIAC looked closely at the general human rights picture in Libya,
the character of President Qadafi, and the relationship between the UK and Libya. Against
that background, SIAC assessed the effectiveness and reliability of the assurances, the likely
efficacy of the QDF as the monitoring body, and the political and diplomatic context in which
Libya gave the assurances and in which the UK could enforce them. 314 SIAC reaffirmed that
“diplomatic assurances are legally relevant and capable of reducing the risk which would
otherwise be faced to a level at which return would no longer breach the UK’s obligations.” 315
An assessment of assurances, SIAC stated, must focus not just on their contents, but on the
domestic political forces that animate the foreign government giving the assurances and the
pressures that may compel that government to perform its obligations. 316
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SIAC expressed concern about the limited efficacy of the QDF, the reasonably high risk that
Qadafi would not adhere to the assurances (based on his unpredictability and questionable
rationality), the absence of a civil society in Libya to shame the government, and the newness
of the UK’s relationship with Libya. 317 SIAC came to the conclusion that there was a “real risk”
that the deportees would be ill-treated in a way that breached Article 3, noting, “In short there
is too much scope for something to go wrong, and too little in place to deter ill-treatment or
to bring breaches of the MOU to the UK’s attention.” 318 Thus, despite the detailed provisions
of the MOU, SIAC declined to uphold the deportation. The UK government appealed the
decision to the Court of Appeal, which upheld SIAC’s findings of fact about the likelihood of
torture. 319
iii. Algeria
The UK concluded an exchange of letters with Algeria in 2006. Subsequent assurances in
specific cases suggest that the letters contain the following provisions: The individual has right
to appear before a court so that the court may decide on the legality of his arrest or detention,
the right to be informed of the charges against him, and the right to be assisted by a lawyer of
his choice and to have immediate contact with that lawyer; he may receive free legal aid; he
may be placed in custody only by the competent judicial authorities; in the event that he is the
subject of criminal proceedings, he will be presumed to be innocent until his guilt has been
established by due legal process; he has the right to notify a relative of his arrest or detention;
he has the right to be examined by a doctor; and his human dignity will be respected under all
circumstances. 320
As of October 2007, the UK had notified eighteen Algerians of its intent to deport them with
assurances. Of these, nine chose to return voluntarily and nine appealed their deportations.
The UK government has reported that the two Algerians deported in June 2006 were detained
and interviewed on arriving in Algeria, and were released after five and six days in detention,
respectively. 321 The UK gave the four individuals deported in January contact information
for the UK Embassy in Algiers; one individual requested contact arrangements, and the UK
Embassy has been in contact with his family since he returned to Algeria. The government
of Algeria charged two of the four with criminal offenses (membership in an armed terrorist
group active abroad). Algeria charged or released all four before the twelve-day detention
period provided in Algerian law expired and all were able to contact their families during that
time. 322
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The SIAC has considered seven of the nine appeals by those Algerians contesting their deportations.
In each case, the SIAC has concluded that the UK would not violate ECHR Article 3 by
deporting them. For instance, one of the first Algerian cases that came before SIAC involved
an Algerian (“Y”) who had been tried and acquitted for his alleged involvement in a ricin poison
plot. 323 In holding that the UK could return Y to Algeria, SIAC placed particular emphasis
on several elements. It noted the decline in violence in Algeria in the past several years, which
resulted in fewer abuses by security forces. 324 SIAC also noted Algeria’s peace and reconciliation
efforts, which also meant that Y was likely to receive amnesty on his return. 325 Finally,
it viewed the government of Algeria as having negotiated the assurances in good faith and
believed that diplomatic pressure by the UK would help enforce those assurances. 326
SIAC provided a general comment on assurances as well:
Assurances are not usually sought unless there is a prospect that the treatment to be
guarded against will occur. Where that treatment is already forbidden by a state’s domestic
law and international obligations, . . . there has to be something about the assurances,
sufficient to show that the promise to do that which it has already agreed to do or
is bound to do, will be honoured rather than breached in this instance. That may come
from the person giving the assurances, the terms of it, the circumstances of the country,
monitoring, the political and diplomatic incentives to adhere to it or the potential penalties
for a breach, or from a combination . . . of them. What we do not accept is that there
is a principle which requires assurances in such circumstances to be ignored as opposed
to being assessed carefully. The political realities in the country will matter far more
than the precise text, because it is the probable attitudes of those in power or having
dealings with the individual case that are at stake, rather than the legal enforcement of
that which is inherently not legally enforceable. 327
These cases illustrate how deeply SIAC has dug into issues that require substantial political
decisions, pursuant to its de novo review of the cases. The SIAC decisions run to hundreds of
pages, and its decisions to remand certain decisions back to the UK government reveal that
SIAC is willing to supplant the judgment of the UK Home Secretary with its own. While it is
difficult to determine whether this type of process objectively has produced better outcomes
than a more streamlined review process would, it has the advantage of ensuring that the UK
obtains robust assurances up front; engages in a careful analysis of the torture risk, in the
knowledge that SIAC will review its decisions closely; and discloses the monitoring provisions
and their efficacy in particular cases.
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4. Canada
Canada’s current immigration law, the 2001 Immigration and Refugee Protection Act
(“IRPA”), provides, “[A] person who is recognized as a Convention refugee by another country
to which the person may be returned shall not be removed from Canada to a country
where they would be at risk of persecution for reasons of race, religion, nationality, membership
in a particular social group or political opinion or at risk of torture or cruel and unusual
treatment or punishment.” 328 However, that provision does not apply to a person “who is
inadmissible on grounds of serious criminality and who constitutes, in the opinion of the
Minister [of Citizenship and Immigration], a danger to the public in Canada.” 329
The Ministers of Public Security and Citizenship and Immigration may decide to issue a
certificate seeking an alien’s removal. Once signed, the certificate is referred to a judge of the
Federal Court, who determines whether the certificate is reasonable. 330 During the Federal
Court proceeding, most detainees are eligible to apply for a pre-removal risk assessment
(“PRRA”) if they allege that they personally would be subjected to a substantial danger of
torture if removed. 331 During the assessment, the Minister of Citizenship and Immigration
(“MCI”) may seek assurances from the detainee’s country of nationality that it will protect the
detainee’s human rights upon transfer. 332 The Federal Court will determine the lawfulness of
the MCI’s PRRA decision, along with the reasonableness of the certificate. If the Court deems
the certificate reasonable, it is considered conclusive proof that the detainee named in it is
inadmissible. The certificate then becomes a removal order. 333
a. Suresh
In Suresh v. Canada (Minister of Citizenship & Immigration), the Canadian Supreme Court
considered three questions relevant to diplomatic assurances. 334 The first was the appropriate
standard of review for a court considering a ministerial decision to deport an individual.
The second was whether a decision to deport someone pursuant to the 1985 Immigration Act
(the predecessor to the IRPA), even to face torture, would be constitutional in Canada. The
third was whether Canada’s deportation scheme contained adequate procedural safeguards
to ensure that refugees are not deported to face torture and, if not, what such a scheme would
require.
Suresh was an individual from Sri Lanka to whom the government of Canada had granted
refugee status in 1991. In 1995, Canada initiated deportation proceedings against him, based
on the Canadian Security Intelligence Service’s opinion that he was a member of and fundraiser
for the Liberation Tigers of Tamil Eelam (“LTTE”), an organization widely believed to
be engaged in terrorist activities against the government of Sri Lanka. 335 The use of torture
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apparently is widespread in Sri Lanka, especially against persons suspected of being LTTE
members.
The MCI notified Suresh that she was considering whether to declare him a danger to the security
of Canada under the Act, which permitted her to deport a refugee on security grounds
even where the refugee’s life or freedom would be threatened by the return. 336 Suresh submitted
written evidence, including reports describing the torture and killings of LTTE members.
337
An immigration officer considered Suresh’s submissions and recommended that the MCI
nevertheless deem Suresh a danger to Canada’s security. The officer assessed that Suresh faced
a risk of torture on returning to Sri Lanka but that the risk was uncertain, might be tempered
by his high profile, and was counterbalanced by the threat the Suresh posed to Canada. 338
The MCI then issued an opinion, on the basis of that officer’s memorandum, declaring that
Suresh was a danger to the security of Canada and should be deported. Suresh did not see the
officer’s memorandum or have a chance to respond to it, and the MCI’s opinion did not give
reasons for her conclusions. Suresh therefore sought judicial review, claiming that the MCI’s
decision was unreasonable; that the procedures under the Immigration Act were unfair; and
that the Act violated the Canadian Charter. The lower and appellate federal courts dismissed
his appeal, but the Supreme Court reversed, holding that Suresh was entitled to a new deportation
hearing. 339
i. Standard of review of executive decision to deport
The Court held that the reviewing court should “adopt a deferential approach” to the MCI’s
decision, both about whether the individual poses a danger to the security of Canada and
whether the refugee faces a substantial risk of torture upon deportation. 340 In so deciding, the
Court agreed that the MCI is better suited than a court to engage in the balancing test between
national security and the danger of non-refoulement. 341 Among the factors the Court
viewed as necessary for the Executive to consider in evaluating the risk of torture are: the
human rights record of the receiving state; the personal risk the individual faces; any assurances
from the receiving state that the individual will not be tortured; the value of those assurances;
and the ability of the receiving state to control its security forces. 342 The Court held that
reviewing courts may set the MCI’s decision aside only if it is “patently unreasonable” – that
is, made arbitrarily or in bad faith, cannot be supported on the evidence, or the MCI failed
to consider the appropriate factors. 343 A court should not re-weigh the factors or interfere
because that court would have come to a different conclusion. 344 In the view of the Supreme
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Court, a deferential standard of review would not prevent “human rights issues from being
fully addressed, provided that proper procedural safeguards are in place.” 345
ii. Non-refoulement
The Court then considered whether the section of the Immigration Act that permitted Canadian
officials to deport a person where his life or freedom would be threatened was consistent
with section 7 of the Charter, which guarantees everyone the right to life, liberty, and security
and the right not to be deprived thereof except in accordance with principles of fundamental
justice. 346 Applying Canada’s “shock the conscience” test to determine if such a deportation
would violate fundamental justice, the Court concluded that “deportation to torture will
generally violate” section 7. 347 However, the Court qualified that by recognizing that each case
involved a balancing test and stating, “We do not exclude the possibility that in exceptional
circumstances, deportation to face torture might be justified.” 348
iii. Procedural safeguards
Having described the balancing test that the Minister would have to undertake, the Court
assessed the procedural protections to which an individual was entitled under section 7 when
the individual had established a threshold showing that a risk of torture or similar abuse
existed. The Court concluded that the MCI did not need to conduct a full oral hearing or
judicial process before reaching her decision. 349 Nonetheless, a refugee facing deportation
who makes out a prima facie case of a risk of torture must be informed of the case to be met,
and (subject to privilege and other legitimate reasons for reduced disclosure) must be able to
see the material on which the MCI based her decision. 350 The refugee must have a chance to
respond in writing to the information presented to the MCI and to challenge the information
in the file. 351 Specifically, the refugee may present evidence on the decision’s treatment aspects
– the risk he will face torture on return and the value of the assurances of the receiving government.
352 Further, the MCI must provide written reasons for her decision on all relevant issues,
and must articulate and rationally sustain a finding that there are no substantial grounds
to believe that the individual will be tortured. 353
To date, the Canadian government has not sought to use the Suresh “deportation to torture”
exception. Indeed, by seeking assurances against mistreatment, the Canadian government
will try to avoid having to use that exception.
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b. Mahjoub
In Mahjoub v. Canada, a lower federal court questioned the propriety of the Suresh exception.
354 Mahjoub provides an example of the significant amount of time and process that
these cases demand, and of an instance where the Canadian government was foreclosed from
deporting an individual because of non-refoulement concerns; attempted to detain the person
indefinitely; 355 and ultimately released the person into Canada, despite real concerns that he
posed a threat to Canada’s national security.
The case arose when Canada tried to deport Mohamed Mahjoub, an Egyptian alleged to be a
member of a faction of al Jihad al Islamiya and thought to pose a threat to Canada’s national
security. The Canadian government obtained three sets of assurances from the Egyptians.
The Minister’s delegate, tasked with making the government’s decision about deportation,
expressed concerns about Egypt’s assurances but concluded that Canada could appropriately
deport Mahjoub. Mahjoub challenged and a federal court reviewed that decision in January
2005.
With regard to the assurances, the court stated, “The delegate reviewed the reports [documenting
the experience of other Egyptians accused of similar terrorist activities who were
sent back to Egypt from other countries and who, notwithstanding assurances, were subjected
to alleged human rights abuses, ill-treatment, and incommunicado detention] and concluded
that they presented a credible basis for calling into question the extent to which the Egyptian
government would honour its assurances.” 356
In dicta, the Court noted, “The Supreme Court of Canada has left the issue open by not excluding
the possibility that, in exceptional circumstances, such deportation may be justified,
either as a consequence of the balancing process required by section 7 of the Charter or under
section 1 of the Charter. There are, however, powerful indicia that deportation to face torture
is conduct fundamentally unacceptable; conduct that shocks the Canadian conscience and
therefore violates fundamental justice in a manner that cannot be justified under section 1 of
the Charter.” 357
In January 2006, the Minister’s delegate again decided in favor of deporting Mahjoub. In
December 2006, a federal court again rejected this decision. 358 In this case, the court dug
more deeply into the assurances (and other information in the record that called into question
whether Egypt had acted consistent with its assurances in the past). The court believed that
the delegate ignored evidence about Egypt’s disregard of its assurances, and, in a decision that
looks like de novo review of the assurances and risk assessment, concluded that the delegate
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had reached a “patently unreasonable” decision. It sent the case back to the MCI for a re-determination.
In 2007, a Canadian court released Mahjoub into Canadian territory after seven
years in detention, though it kept him under house arrest. 359 He apparently wears a GPS ankle
bracelet and is under surveillance by the Canadian Border Services Agency. 360
c. Lai Cheong Sing
Lai Cheong Sing, a Chinese national who fled to Canada, was wanted to stand trial in China
for smuggling. China wanted Canada to remove Lai to China and provided Canada with
assurances that Lai would receive a fair trial and would not be tortured. 361 China’s diplomatic
note to the Canadian Department of Foreign Affairs stated, “China is a state party to
the [CAT]. According to the provisions of the relevant Chinese laws, during the period of
investigation and trial of Lai after his repatriation and, if convicted, during his term of imprisonment,
Lai will not be subject to torture and other cruel, inhuman or degrading treatment or
punishment.” 362 The note did not contemplate any monitoring mechanism.
The PRRA officer denied Lai’s PRRA request. The officer noted that the Chinese themselves
had proffered the diplomatic note; that the case was well-publicized; that the Chinese government
had the ability to ensure that the note’s provisions would be enforced; and that the Chinese
had not previously reneged on diplomatic assurances. She concluded that it was unlikely
that the Chinese government would “take the extraordinary step” of providing the note after
high-level negotiations that were widely publicized, and then renege on those promises, damaging
its international reputation. 363 Nor did she find the absence of a monitoring mechanism
to be an insurmountable problem. 364 Lai appealed the conclusion that he would not be subject
to torture if returned.
In April 2007, a federal court held that the PRRA officer “erred by failing to determine
whether the assurances met the essential requirements to make them meaningful and reliable.
Assuming for the moment that assurances can, in the right circumstances, drastically mitigate
the risk of torture, she never engaged in any discussion about what those essential requirements
might be, let alone whether those requirements were met. She simply wrote that the
couple’s notoriety will protect them, and incidentally, that there is no evidence that China has
reneged on any previous assurances.” 365
Although the court cited several provisions from Suresh to the effect that courts should not
substitute their judgment for the executive branch, the 2007 decision in Lai seems to do just
that. Although the Lai court stated that the officer had “never engaged in any discussion
about what those essential requirements [to make assurances meaningful] might be,” 366 the of-
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ficer’s opinion discussed virtually all of the factors raised in Suresh, such as “the human rights
record of the receiving state; the personal risk the individual faces; any assurances from the
receiving state that the individual will not be tortured; the value of those assurances; and the
ability of the receiving state to control its security forces.” 367 One problem is that the “relevant
factors” for courts to consider in reviewing these cases are factors that the courts themselves
have developed, not factors established by the legislature, and so are quite malleable.
For better or worse, this decision and others like it will prompt the MCI’s delegates and Canadian
courts to engage in even more searching review of the substance of diplomatic assurances
and the political context in which the receiving state gave those assurances. This case
also shows that unless a legislature puts in place carefully-crafted review standards, it can be
difficult to prevent courts from conducting the kind of review they themselves find most appropriate.
The Minister’s officer apparently is reconsidering the PRRA in the Lai case now. 368
C. Extradition
1. ECHR cases
Although many European and Canadian cases assessing diplomatic assurances have arisen in
deportation cases, these states face similar obligations with regard to extraditions of individuals
from their territory and therefore rely on assurances in that context as well. For European
states, judicial review of assurances means that both their domestic courts and the ECtHR
may consider those assurances. To date, the ECtHR has been comfortable with the use of
assurances in extradition cases but, troublingly, has also taken into account information that
should not be relevant to its analysis.
The latter type of case has arisen, for instance, in Mamatkulov & Askarov v. Turkey. 369 In that
case, the applicants, Uzbek nationals, claimed that their extradition from Turkey to Uzbekistan
would violate Article 3 of the ECHR. Uzbekistan sought their extradition because it
considered them suspects in a homicide and an attempted terrorist attack against the Uzbek
President. The applicants claimed that the offenses were political, and that political dissidents
in Uzbekistan typically are subjected to torture in prison. While the case was pending in the
ECtHR, Turkey extradited the applicants.
Before doing so, the government of Turkey received several assurances from the government
of Uzbekistan. The Uzbek Ministry of Foreign Affairs conveyed an assurance from the Uzbek
Public Prosecutor that “the applicants will not be subjected to acts of torture or sentenced to
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capital punishment. . . . The Republic of Uzbekistan is a party to the United Nations Convention
against Torture and accepts and reaffirms its obligations to comply with the requirements
of the provisions of that Convention both as regards Turkey and the international community
as a whole.” 370 Two months after the extradition, the Ministry of Foreign Affairs sent another
note to Turkey describing Uzbekistan’s treatment of the returned individuals; that note
included an assertion that “[t]he assurances given by the Public Prosecutor of the Republic of
Uzbekistan concerning Mamatkulov and Abdurasulovic comply with Uzbekistan’s obligations
under the United Nation’s [sic] Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10 December 1984.” However, the applicants’ representatives
claimed that they had been unable to contact the men after the Uzbek government
convicted them. 371
The ECtHR took “formal cognizance of the diplomatic notes from the Uzbek authorities” in
assessing all of the material placed before it, including information about the applicants’ trials
in Uzbekistan and medical certificates indicating no mistreatment, and concluded that Turkey
had not violated Article 3. 372
Somewhat oddly, the Mamatkulov Court stated that it could take into consideration, in
evaluating the reasonableness of Turkey’s decision to extradite, what had happened to the
applicants after their extradition, as that information “may be of value in confirming or refuting
the appreciation that has been made by the Contracting Party of the well-foundedness or
otherwise of an applicant’s fears.” 373 Indeed, the Court noted a post-transfer medical record
from Uzbek authorities showing no signs that the transferees were abused.
It is troubling that the ECtHR considered information that came to light only after the government
decided whether to extradite: as in decisions in armed conflict about whether it is
lawful to use force against a particular objective, one should judge the propriety of a particular
decision by considering only that information that the decision-maker had in hand when
forced to make the decision – even if the particular objective turned out to be something
other than what the state using force thought it was. It would be appropriate, of course, for
the Court to consider the treatment of individuals extradited to a state in previous cases when
reviewing, for example, the reliability of assurances from that state in a subsequent case. But
the use of hindsight in upholding a particular set of diplomatic assurances implies that decision-makers
in transferring states should have a level of prescience that they cannot have in
real life. This suggests another problem with de novo judicial review: a court may import
additional information into its analysis that is not relevant for the review it is supposed to
perform. Mamatkulov also illustrates the temporal delays that can ensure from multiple layers
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of full judicial review: Turkey extradited the Uzbeks in 1999, and the ECtHR issued its final
opinion in 2005.
2. European domestic cases
Several European states have used diplomatic assurances in extraditions, including the Swiss,
Austrians, Germans, and Slovaks. 374 One case from the Netherlands shows Dutch courts forcing
the government repeatedly to seek supplemental assurances, and ultimately setting a very
high standard for transfers in the face of torture claims.
Turkey requested that the Netherlands extradite Nuriye Kesbir, a member of the PKK terrorist
group, to stand trial for war crimes. In May 2004, a lower Dutch court concluded that there
were insufficient grounds to halt Kesbir’s extradition, even though her fears of torture and
unfair trial were not unfounded. That court gave the Dutch government the exclusive authority
to extradite (or not), but recommended that that Dutch Ministry of Justice should seek
assurances from the Turks. 375 The Dutch did so, obtaining a “letter of guarantee” that stated,
“[T]here should be no question as to Turkey’s adherence to its obligations emanating from
the international instruments that she is party to on issues that the [Dutch] Supreme Court
has expressed sensitivity.” 376 A subsequent letter from Turkey stated, “[T]here should not be
any doubt that she will receive a fair trial under the guarantee of the ECHR and enjoy the full
rights emanating from the said Convention.” 377
At that point, the Dutch Minister of Justice ordered Kesbir’s extradition. Kesbir appealed. A
lower court held that the Dutch authorities should not have accepted Turkey’s assurances as
sufficient. The Dutch government obtained a third assurance from the Turkish government,
to the effect that “Kesbir will be brought before the Turkish Court without delay in accordance
with relevant laws and have the unimpeded right of access to her lawyers when extradited to
Turkey.” 378 The Dutch then appealed the lower court decision. In January 2005, the appellate
court held that Turkey’s diplomatic assurances did not defeat the risk of torture if Kesbir
returned to Turkey. The appellate court was not satisfied that she would not be tortured or
exposed to other humiliating practices by police officers, prison staff, or other officials within
the judicial system; in the court’s view, the assurances failed to address the problem that the
EHCR and Turkish law are not enforced “at all times and in every respect.” This is quite a
high standard: in no country are the laws enforced at all times and in every respect. The
Dutch government appealed this ruling.
In September 2006, the Dutch Supreme Court blocked the extradition of Kesbir on the
grounds that she could face torture in Turkey. Dutch officials describing the decision said
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Ankara’s guarantees that Kesbir would not be tortured were unsatisfactory to the court but
said the ban on her extradition could be lifted if Ankara gave more solid guarantees of proper
treatment. 379
D. Wartime transfers of detainees
Like the United States, the governments of the UK, Canada, Denmark, the Netherlands, and
Norway have entered into agreements with the IROA regarding detainee transfers. 380 These
agreements supplement the basic ISAF rule that ISAF states will transfer a detainee to the
IROA within 96 hours of detaining him. The UK also concluded a memorandum of understanding
(“MOU”) with the government of Iraq related to the transfer of detainees from the
UK to Iraq. Unlike the United States, most of these governments have made their MOUs public.
The fact that, like the United States, these states are obtaining assurances during wartime
suggests a shifting paradigm between the law of war and human rights law. The Canadian
arrangements with the IROA are the subject of an ongoing court challenge as a result of that
shifting paradigm.
According to Amnesty International, the European and Canadian MOUs with the IROA have
certain elements in common. The MOUs, which govern the transfer of ISAF detainees to Afghan
authorities, provide that these authorities will keep records of the transferred detainees. 381
The agreements generally state that the signatories will treat detainees in accordance with international
law, including human rights law and the law of war; provide that representatives from
the transferring state, ICRC, and Afghan Independent Human Rights Commission (or some
combination thereof) have access to the detainees after transfer; and require the IROA to notify
the ISAF state before Afghanistan initiates legal proceedings against or releases the detainee, or
transfers him to a third country. 382 These assurances are not unlike the types of assurances that
the UK, for example, has obtained in the context of deportations with assurances.
Canada’s arrangements are among the most robust. 383 The first MOU, from December 2005,
states that the Participants (Canada and Afghanistan) will treat detainees in accordance with
the standards in the Third Geneva Convention; that the ICRC has the right to visit detainees
in either state’s custody; that the Participants must keep accurate written records accounting
for detainees who pass through their custody; and that the Participants will cooperate with
the AIHRC. 384 The second MOU, from May 2007, supplements the 2005 MOU by building in
access by the Canadians to their detainees after transfer; creates access for UN human rights
institutions; requires the Afghans to notify the Canadians before they initiate proceedings
against a detainee or release him; and specifically prohibits torture and cruel, inhuman, or
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degrading treatment. 385 Additionally, the May MOU requires the Afghan authorities to obtain
written permission from the Canadians before transferring detainees to a third state; to hold
the transferred detainees in a limited number of declared facilities; to grant full, unrestricted
access to those detention facilities; to permit AIHRC and Canadian officials to conduct
private detainee interviews; to investigate and prosecute individuals alleged to have abused
transferred detainees; and to advise all prison authorities under its jurisdiction of the contents
of the MOUs. 386
Despite these extensive arrangements, Canada faces ongoing litigation about its transfers of
detainees to the IROA. Amnesty International has sued Canada to prevent Canadian troops
in Afghanistan from transferring detainees to the IROA. Amnesty’s claim is that the Afghans
mistreat detainees, which means that such transfers violate Canada’s constitution. From November
2007 to February 2008, pending Amnesty’s request for an interim injunction against
transfers, Canada chose not to transfer detainees to the Afghans, presumably relying instead
on short-term, ad hoc detention arrangements.
A Canadian federal judge recently concluded that Afghan detainees were not entitled to protection
under the Canadian Charter and dismissed Amnesty’s claim. 387 Amnesty has appealed
the decision to the Canadian Court of Appeal. 388 A top Canadian General argued publicly
that if Canada loses the case – that is, if its courts prevent the government from transferring
detainees to the Afghans – Canadian troops would be unable to detain combatants, and thus
be forced to hunker down in secure bases. This would effectively terminate Canada’s contribution
to the mission and remove a significant NATO troop contributor from the battlefield.
E. Conclusion
The European and Canadian examples illustrate that both the United States and its allies are
grappling with how to balance the same basic set of concerns – wanting (or being required)
not to transfer an individual back to torture, but being unwilling to release the individual into
their territory for national security reasons or to detain the individual for an indefinite period.
All of these states have used assurances in cases in which the CAT clearly applies, and in cases
where it is less clear that non-refoulement attaches as a legal matter. All have faced difficult
litigation relating to assurances, either because the courts are unsure whether they have jurisdiction
to evaluate treatment issues, or because the courts, in exercising their jurisdiction, are
uncomfortable with decisions that the Executive Branches have made in the face of claims of
future torture.
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The European and Canadian examples differ from the U.S. cases in several important ways. 389
First, in the European and Canadian examples, the diplomatic assurances are made public to
the courts and to the individual subject to transfer, with the exception of the UK’s arrangement
with Iraq. 390 It does not appear that the public nature of the assurances has adversely
impacted the ability of these transferring states to obtain the assurances in the first place,
which raises some questions about the U.S. argument that sharing assurances with U.S. courts
will chill the negotiations about the assurances. Second, the courts play a role in reviewing
assurances – either reviewing the substance de novo (in SIAC) or reviewing the procedures
and some aspects of the substance (in Canada). The concept of a “rule of non-inquiry” is
absent, although Canadian courts recognize that the executive is better placed than courts
to evaluate assurances. The SIAC process suggests the utility of crafting a system in which
the reviewing entity gains significant expertise in country-specific issues, but also shows how
deeply the SIAC has had to probe into diplomatic and political issues in order to engage in a
de novo review of the decision to deport. 391 And the existence of an international court that
issues binding decisions on Council of Europe Contracting States means that each state has
less freedom to set its own policy in this area. 392
The Canadian and European examples offer insight into what might happen if the United
States established a system of extensive judicial review of diplomatic assurances related to torture.
These cases suggest that a system that permits the courts fully to substitute their judgment
about the likelihood of torture for that of the executive has significant costs, and does
not necessarily lead to fairer outcomes in each case. If full judicial review completely satisfied
the concerns described in Part IV, it might be worth balancing the costs of full review against
that benefit, but full review has not silenced critics. That said, European states and Canada
have the reputational advantages that attach to full transparency in resolving treatment issues
in transfers, and have the incentives that come with the knowledge that an outside entity will
review the decisions they make.
VI. Way Ahead
A. Accounting for the differences
What accounts for the fact that the United States, on the one hand, and Europe and Canada,
on the other, have developed quite distinct approaches to diplomatic assurances? Some of the
explanations are readily apparent: European states, as parties to the ECHR, simply face higher
legal bars to transferring a person who claims future mistreatment in the receiving state; and
the ECtHR provides an additional layer of oversight over the use of assurances and related
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decisions to transfer. Further, ECtHR and domestic decisions require the governments using
assurances to reveal those assurances to the court and transferee. 393 Finally, the Europeans
and Canada appear to have settled into roles as leading proponents of human rights, with
humanitarian policy concerns often (though not always) trumping “hard power” equities. 394
In contrast, the U.S. use of assurances in all contexts has been colored by its longstanding
extradition practice, which embraces the rule of non-inquiry. As far back as 1911, the Supreme
Court declined to review the fairness of the trial procedures in another country, stating
that judges “are bound by the existence of an extradition treaty to assume that the trial will be
fair.” 395 The well-established nature of the rule, coupled with a broader set of judicially-created
principles such as the political question doctrine, means that the Executive has grown accustomed
to courts declining to get involved in many cases touching on political and diplomatic
relationships.
There may be another reason for the difference as well: the primacy of the U.S. role in providing
security to the West. As Robert Kagan has written, “American and European perspectives
are diverging. Europe is . . . moving beyond power into a self-contained world of laws
and rules and transatlantic negotiation and cooperation. . . . Meanwhile, the United States
remained mired in history, exercising power in an anarchic Hobbesian world where . . . true
security and the defense and promotion of a liberal order still depend on the possession and
use of military might.” 396
This overstates the differences between the U.S. and Europe, but to the extent that the United
States is at the forefront of the war on terror, it means that the United States will detain more
people; that the United States has the capacity to engage in operations that others do not have;
that it remains a particularly appealing target of terrorism; and that it has a unique need to
preserve fragile alliances with countries that are not liberal democracies and whose citizens
do not like the United States. This, in turn, might mean that the United States, more than its
European and Canadian allies, needs to be able to keep parts of its diplomatic efforts confidential,
to avoid undermining the very governments with which it is working. 397
B. Options
Given U.S. equities in preserving the use of assurances and concerns expressed by Congress,
the courts, and the public about existing assurances practice, is there a way for the United
States to alter its policy to maximize the benefits from a change while preserving its most
important equities and minimizing other costs? Policymakers have at least four options: they
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could abandon the use of assurances; maintain the status quo; create full judicial review; or
create limited judicial review.
1. Option 1: Abandon the use of assurances
One possible option, which many human rights groups and some members of Congress
would support, is to abandon the use of diplomatic assurances entirely. This approach might
be based both on human rights and security concerns. For instance, the United States might
conclude that at least some diplomatic assurances are not as reliable as it hoped, and that the
risk of transferring an individual back to a country with a bad human rights record results
in high reputational costs, particularly where subsequent reports suggest that the person was
mistreated. The U.S. might also decide that the states to which it is transferring individuals
cannot reliably detain or monitor the transferees, and thus prefer to release them into the
United States, where it can attempt to place them under surveillance. Or it could decide to
test the Patriot Act provision permitting extended administrative detention, at least for those
individuals it believes to pose a security risk, and otherwise continue to hold individuals at
Guantanamo if the United States concludes that they cannot be transferred consistent with
the “more likely than not” standard.
This approach seems untenable. The alternative of long-term administrative detention poses a
competing – though different – human rights challenge, and release into U.S. territory seems
likely to increase security risks to the United States to unacceptably high levels. In the wake
of Boumediene, federal courts may begin to issue decisions precluding the United States from
continuing to hold certain individuals at Guantanamo. 398 Doing away with assurances entirely
also could lead to enormous practical problems: what other tools would the U.S. have to address
humane treatment obstacles relating to transfer of detainees? Absent such tools, and
in the face of specific treatment concerns, what would the United States do with detainees it
now holds in Afghanistan or Iraq, when it is ready to leave the country? Indeed, the fact that
the United States has begun to use assurances in a growing number of contexts suggests that
rejecting this tool will have high (and possibly unforeseen) costs.
2. Option 2: Maintain the status quo
As discussed in Parts III and IV, the status quo has resulted in a number of problems, including
significant quantities of litigation; inconsistent judicial decisions; the possibility of
a Supreme Court decision that could alter the U.S. government’s assurances practice; and
criticisms about lack of neutrality and transparency. Leaving diplomatic assurances practice
to chance in the courts is not ideal: it seems unlikely that letting courts muddle through these
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issues without further guidance will result in the best policy outcome. At the least, muddling
through might mean that the United States ends up with a patchwork of decisions within particular
areas of law (i.e., extradition) or with a patchwork of decisions across areas of the law,
even though the government’s and transferees’ equities are quite similar across the board.
Leaving it to Congress alone to develop new laws on assurances also has costs – most notably,
that the Executive Branch may dislike any outcome that diminishes Presidential power. Yet
declining to make changes to the practice means that there is little room to increase others’
confidence in the assurances process and dispel certain of the critics’ claims. It also is difficult
to draw clear distinctions about why it is appropriate for courts to review final orders of
removal in the immigration context but not be able to review final decisions to extradite or
otherwise to transfer. 399
There are advantages to making no changes: in the short term, it may preserve maximum flexibility
for the Executive, and it avoids the risk that comes with agreeing to limited changes: the
fear that courts will interpret a grant of limited review as a grant of broad review. Further, the
Executive reasonably might claim that it has established standards and procedures, that it has
been able to transfer most of the people it wants to, and that there have been limited claims
that people have been mistreated on return. This provides limited impetus to seek changes.
But it is not clear how long the other branches will tolerate this “maximum flexibility.”
3. Option 3: Establish full judicial review
European and Canadian cases illustrate another way to handle the issue of diplomatic assurances:
provide full transparency to the courts and to the person to be transferred, regarding
both the fact of and substance of assurances. The UK gives SIAC the right of full review of a
decision to deport. Canada’s courts apply a more deferential standard of review than SIAC,
reviewing the executive’s decision to determine if she considered the appropriate factors, rather
than reviewing the decision de novo. Following the European approach, Congress might
legislatively mandate de novo judicial review of an Executive Branch decision to transfer a
person where the Executive has decided, based on assurances, that the person is not more
likely than not to face torture.
But an approach that provides public access to the diplomatic assurances and permits de novo
review is not ideal. It requires judges to dig deeply into foreign policy considerations, even
though (in the words of the Canadian Supreme Court) the review of assurances is a fact-based
inquiry with “negligible legal dimensions” and there is little reason to believe that judges are
in a better position to analyze the substantive torture issue better than the Executive. 400 Not
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surprisingly, extensive court review of assurances (and non-refoulement issues) has led to a
more extended process than most assurances cases in the United States. In extradition cases,
a very long delay can undermine the U.S. ability to fulfill its treaty obligations, as in Mironescu,
where the proceedings took so long that the person served the equivalent of his sentence
in jail in the United States. The European and Canadian courts have halted some cases, which
human rights groups see as victories, but it is impossible to say whether these cases truly
produced a more just result, because it is impossible to know what would have happened to
the individuals if they had been transferred. Finally, this approach would undercut the sense
within the Executive Branch that the U.S. role in the world may require a greater degree of
discretion and confidentiality than that required by our Western allies.
4. Option 4: Establish limited judicial review
The most reasonable approach to revising U.S. assurances practice is to create carefully
cabined judicial review of the transfers in the face of torture allegations, including where the
U.S. government uses assurances. Reforms are complicated, and taking this approach would
require the Executive Branch and Congress to answer difficult policy questions. If carefully
crafted, however, judicial review would increase transparency and bolster the legitimacy of
assurances by permitting another branch of government to play a role, while permitting the
Executive to continue to protect from public view sensitive aspects of its negotiations about
assurances.
a. Statutory changes
Instead of letting courts continue to muddle through, drawing what guidance they can from
the Boumediene and Munaf cases, Congress could work with the Executive Branch to establish
rules for the use of diplomatic assurances related to torture. The political branches are
the right branches to engage in this important balancing of policy considerations: weighing
national security concerns against the risk of transferring individuals in the face of torture
claims, and taking into account U.S. reputational costs and practical limitations to judicial review.
Congress has not waded into this issue for ten years (which is when it enacted FARRA);
the world has changed since then. Not only is there an increased focus on torture as one of
the most serious ills to which a person can be subjected, but there also has been an increase
in terrorism, greater information about foreign government practices, including their human
rights practices, and an active U.S. detention policy. These factors elevate the political nature
of this balancing process.
The law might create limited judicial review of decisions in the face of torture claims that is
similar to the type of review that attaches to decisions by the Secretary of State to designate a
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group as a “foreign terrorist organization” (“FTO”). 401 Indeed, this type of review tracks the
APA review that Cornejo I concluded was available, though it has the advantage of flowing
from a clearer statute than FARRA and of recognizing that the Executive Branch’s decision
is discretionary. A new statute could permit the courts to review a transfer decision by the
relevant agency of the Executive Branch to determine whether it was “arbitrary and capricious
or an abuse of discretion.” This review is not unlike the type in which Canadian courts are
supposed to engage; that standard of review recognizes that the Executive Branch is in better
position than the courts to evaluate the assurances and associated information about the
country in question.
To avoid a situation (as has happened in Canada) in which courts expand their scope of review,
the statute could establish a list of factors that the Executive should take into account in
making its evaluation, and that the courts could ensure that the Executive considered. Admittedly,
it will be almost impossible to foreclose future litigation on the issue. However, to date
courts have not gotten bogged down in litigation pursuant to the judicial review provision
in 8 U.S.C. § 1189, which creates even broader review than the basic arbitrary and capricious
standard proposed above. 402
There are differences between a State Department FTO determination and a determination
that someone is more likely than not to face torture if transferred to another state. In the
former case, the determination is about the activities of a non-state actor; in the latter, it is
about the acts of a foreign government. However, both situations require decisions by Executive
agencies based on classified or sensitive information; both have political implications; and
in both cases the Executive agency’s decision has a significant impact on the person subject
to the decision. Further, even though decisions about foreign governments are more sensitive
than those about non-state actors, courts have reviewed likely treatment of individuals by
foreign governments in removal cases.
Congress would need to provide very clear guidance to courts about the scope of review. This
is, of course, the biggest potential downside for the Executive Branch to a law that creates
some, albeit limited, judicial review: even in the face of relatively plain language in a statute
that creates narrow review, courts can interpret that statute in a way that expands that review.
403 This new law, however, would provide ready and coherent rules for the courts, replacing
a cacophony of current litigation on this issue.
What would the review process look like as a practical matter? The U.S. government should
notify the individual in advance of its intent to transfer him to a particular country (often
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his country of nationality), and the individual should be able to submit his concerns to the
Executive related to his treatment on return (as he currently can in extradition cases). 404 After
making a decision to transfer, the Executive Branch would submit to the court the assurances
and a summary of negotiations with the foreign government (if any), as well as the State
Department Human Rights Reports, any history of assurances from the receiving state that
the relevant Department considered, the individual’s submissions related to his fear of torture,
other information the Executive considered regarding the likelihood (or not) of torture, and a
short explanation of how the Department(s) reconciled the competing arguments and concerns.
405 The law could require the court to review the assurances in camera, though this will
be seen as weakening the transparency gains, especially in view of European practice.
One concern about the imposition of judicial review might that it will make the judicial process
longer than it has proven to be thus far. Long periods of litigation can pose diplomatic
and practical problems: for example, the Government of Romania ultimately withdrew its
request for Mironescu’s extradition because he had spent so long in U.S. custody (contesting
his extradition) that he had served the maximum amount of time he would have received if
he had been convicted in Romania on the offense for which it sought him. There are several
ways to expedite cases, however; Congress could require – as it did in creating judicial review
of FTO designations – that the Executive Branch submit its administrative record directly to
the D.C. Circuit, rather than proceeding first in a district court. There also are precedents for
imposing time limits within which a court must decide a case, although these provisions are
not popular with judges. 406 Alternatively, Congress could require the courts to expedite these
cases, as it did in the Bipartisan Campaign Finance Reform Act. 407 Finally, it hopefully will be
the case that statutory clarity will expedite the process; one reason current cases have gotten
snared in lengthy litigation is the lack of clarity about what Congress intended in FARRA and
the MCA.
Congress and the Executive also would need to determine the types of cases to which this
review would apply: it should limit judicial review to cases involving extradition, removal,
and cases in which the United States has sole control over the area in which the individuals
are held at the time and into the foreseeable future, such as at Guantanamo Bay. 408 The latter
category would be crafted to capture those cases in which the United States truly has the
option to continue to detain, in the event that a court strikes down a proposed transfer. The
Secretary of State would make the extradition decisions, and would consult with the Secretary
of Homeland Security when DHS decides removal cases and with the Secretary of Defense
when DOD decides military detainee cases.
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The law should bar judicial review over transfers flowing from detention in military operations
overseas (such as the current situations in Afghanistan and Iraq) because (1) this context
is constitutionally committed to the commander in chief; (2) APA § 551(1)(G) excludes
review of military authority exercised in field in time of war; (3) law of war treaties have never
prevented transfers of combatants – even those entitled to POW status – to their states of
nationality in the face of treatment concerns; and (4) the practical implications of granting
review would be overwhelming, leading potentially to tens of thousands of cases and possibly
transfers of hundreds of combatants to the United States in cases in which a court found that
they could not be transferred to their countries of origin. 409 The Secretary of Defense could
invoke this “overseas military operations” exception, which decision should not be subject
to judicial review. Even in these cases, however, the Executive Branch still should disfavor
transfers of these detainees when it concludes that it is more likely than not that the detainees
would be tortured.
This legislative approach has a number of advantages. First, it would provide greater transparency
than the existing process by providing a check by another branch of government. Second,
it would overcome the appearance of having a transfer decision made exclusively by a decisionmaker
who critics see as invested in a particular outcome; a neutral third party would evaluate
the process to ensure the Executive reviewed the relevant elements in reaching its decision.
The fact of judicial review will make it even more likely that the Executive will engage in a
careful, thoughtful balancing of the facts in deciding whether torture is more likely than not
and seek the most robust assurances possible when it believes that, absent assurances, a person
would more likely than not be tortured. Finally, a process in which all three branches have
participated will bolster the credibility of the process with allies and the public.
This approach would fall short of the fixes that human rights groups seek. It would not necessarily
reveal the assurances publicly and would not create an adversarial process, although
the individuals subject to transfer could submit to the Executive Branch information detailing
their treatment concerns. Exempting custodial situations during active hostilities might
create incentives for the military to hold detainees in the field, even in cases in which it would
prefer to bring the individuals to a third location or to the United States. One might expect,
though, that the military imperatives would trump concerns about eventual judicial review of
transfers.
b. Executive policy
In addition to the legislative change proposed above, the Executive should describe publicly
what diplomatic assurances are and why it uses them. 410 One reason that critics are uneasy
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about assurances is that the United States obtains them in secret. To date, the most extensive
explanations of the process are in court filings and within lengthy documents submitted to the
Committee Against Torture, neither of which is easy for the public to locate. 411 Further, the
United States should address the critiques from human rights groups about the use of assurances.
A thoughtful analysis from the government would foster a public dialogue about the
use of assurances and dispel some myths.
Finally, the Executive publicly should commit to prioritizing monitoring – both during negotiations
for assurances and after it has transferred individuals pursuant to those assurances.
One of the critics’ biggest concerns is the weakness of (or lack of clarity about) mechanisms to
follow up on assurances after the United States has returned an individual. Recognizing that
U.S. embassies have dozens of issues on which they must focus, the Executive Branch should
instruct its embassies to devote continued, high-level attention to each individual returned in
the face of a diplomatic assurance. It might, for example, consider whether to designate and
train one or more senior officers within the State Department to assume full-time responsibility
for monitoring the treatment of transferred individuals, working with in-country monitors
as appropriate.
VII. Conclusion
The dilemmas that diplomatic assurances attempt to address are daunting ones. Regardless
of how vehemently human rights groups oppose the use of assurances, the courts of various
states (and the ECtHR) have not yet precluded governments from seeking assurances as a way
to bring themselves into compliance with their non-refoulement obligations. Nor have states’
legislatures precluded the executive branches from relying on assurances. For now, then, diplomatic
assurances are here to stay, especially because there is little reason to believe that the
situations that lead to the need for these assurances – the presence of individuals in Western
countries who pose security threats but who are from countries with questionable human
rights records – will diminish any time soon. With limited changes to existing U.S. practice,
the United States can better ensure that it retains assurances as a viable legal and policy tool.
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Endnotes
1 The author wrote this piece as an International Affairs Fellow, Council on Foreign Relations
and Visiting Fellow, Center for Strategic & International Studies, while she was on
leave from the U.S. Department of State. The views expressed herein are those of the author
alone, and not those of the U.S. Department of State or the U.S. government. The author
would like to thank Sean Murphy, Ed Swaine, Michael Matheson, and other participants in
the Second Annual Potomac Foreign Relations Roundtable at George Washington University.
Thanks also to individuals in the U.S. Departments of State, Defense, and Justice who
described the processes and challenges of obtaining diplomatic assurances and provided
helpful comments.
2 See Sir Elihu Lauterpacht & Daniel Bethlehem, “The Scope and Content of the Principle
of Non-Refoulement: Opinion,” 2 and 6, available at http://www.unhcr.org/publ/PUBL/
419c75ce4.pdf [hereinafter, Lauterpacht & Bethlehem]. The concept first appeared in the
1933 League of Nations Convention relating to the International Status of Refugees.
3 1951 Convention Relating to the Status of Refugees, No. 2545, 189 U.N.T.S. 150, art. 1F
(“Refugee Convention”). Although the United States is not a party to the Refugee Convention,
it is a party to its 1967 Protocol relating to the Status of Refugees, which incorporates
by reference Articles 2-34 of the Convention.
4 Refugee Convention, art. 33.
5 Special Immigration Appeals Commission, Omar Othman (aka Abu Qatada) v. Secretary of
State, Home Department, 103, available at http://www.siac.tribunals.gov.uk/Documents/
QATADA-FINAL-7-FEB-2007.pdf.
6 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
A/RES/39/46, 10 Dec. 1984. Like the CAT, the International Covenant on Civil
and Political Rights (“ICCPR”) prohibits torture and cruel, inhuman, or degrading treatment
or punishment. Unlike the CAT, the plain language of the ICCPR does not contain a
non-refoulement obligation. Nevertheless, the Human Rights Committee, which ICCPR
states parties tasked with monitoring implementation of the ICCPR and its Protocols in
the territory of those parties, issued a General Comment in 1992 that interpreted Article
7 of the ICCPR as containing a non-refoulement obligation. General Comment 20 stated,
in part, “In the view of the Committee, States parties must not expose individuals to the
danger of torture or cruel, inhuman or degrading treatment or punishment upon return to
another country by way of their extradition, expulsion, or refoulement.” The Human Rights
Committee later expanded this idea to include “all persons under [states parties’] control”
in situations in which “there a real risk of irreparable harm . . . either in the country to
which removal is to be effected or in any country to which the person may subsequently be
removed.” General Comment 31.
The United States has not accepted General Comments 20 and 31, because it believes that
the Comments are not supported by the plain language of the ICCPR. Further, the United
States does not support the view that the principle of non-refoulement attaches to transfers
where a person is more likely than not to face inhuman or degrading treatment; in the
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U.S. view, the principle applies only where a person is more likely than not to face torture.
Finally, the United States takes the view that, by virtue of Article 2 of the ICCPR, the treaty
does not apply to U.S. activities that occur outside its territory.
7 CAT, art. 3.
8 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,
European Treaty Series No. 5, art. 3.
9 See Soering v. United Kingdom (1989), series A, no. 161, 98 ILR 270, 88.
10 S. Exec. Rep. No. 101-30 (1990) (Resolution of Advice and Consent to Ratification).
11 Response of the United States of America regarding the Examination of the Second Periodic
Report, pp. 31, 36, available at www.state.gov/documents/organization/66172.pdf.
12 ICRC Operational Update, “US detention related to the events of 11 September 2001 and its
aftermath,” July 30, 2008, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/usadetention-update-121205.
13 Lauterpacht & Bethlehem, 242 (“No person shall be rejected, returned, or expelled in any
manner whatever where this would compel him or her to remain in or return to a territory
where substantial grounds can be shown for believing that he or she would face a real risk
of being subjected to torture or cruel, inhuman or degrading treatment or punishment. This
principle allows of no limitation or exception.”); see also Amnesty International, Afghanistan:
Detainees transferred to torture, November 13, 2007, p. 9, available at http://www.amnesty.
org/en/alfresco_asset/8f7a4c33-a2d6-11dc-8d74-6f45f39984e5/asa110112007en.pdf.
14 Although the U.S. government has stated that it uses diplomatic assurances in the context of
renditions, this article does not address renditions, which raise a host of additional issues
outside the scope of this discussion.
15 Because the United States generally does not make public the fact that it has sought assurances
in a particular extradition case, it is difficult to determine when the United States first
used diplomatic assurances. It is clear, however, that by 1999 the Executive Branch anticipated
using diplomatic assurances, because the 1999 Code of Federal Regulations provisions that
implement the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. 105-
277, sec. 2242, 8 U.S.C. § 1231 note, specifically refer to assurances. See 8 C.F.R. § 208.18(c)(1).
16 18 U.S.C. § 3184; Mironescu v. Costner, 2006 WL 1558336 (4th Cir.), *4 (Brief for the Appel-
lants).
17 Collins v. Miller, 252 U.S. 364, 369-70 (1920).
18 Prasoprat v. Benov, 421 F.3d 1009, 1013 (9 th Cir. 2005).
19 18 U.S.C. § 3186; see also Plaster v. United States, 720 F.2d 340, 354 (4 th Cir. 1983) (“[T]he
ultimate decision to extradite is, as has frequently been noted, reserved to the Executive
among its powers to conduct foreign affairs.”).
20 22 C.F.R. § 95.3(b).
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21 Mironescu, 2006 WL 1558336 at *6.
22 For a history of the rule of non-inquiry, see Matthew Murchison, Extradition’s Paradox:
Duty, Discretion, and Rights in the World of Non-Inquiry, 43 Stan. J. Int’l L. 295, 300 (2007).
23 Prasoprat, 421 F.3d at 1016.
24 In re Tang Yee Chun, 674 F. Supp. 1058, 1068 (S.D.N.Y. 1987) (political question); Eain v.
Wilkes, 641 F.2d 504, 516 (7 th Cir. 1981) (separation of powers).
25 CAT, art. 3; FARRA, 8 U.S.C. § 1231 note, (a).
26 David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations
and Human Rights Treaties, 24 Yale J. Int’l L. 129, 159 (1999).
27 FARRA, 8 U.S.C. § 1231 note.
28 8 U.S.C. § 1231 note, (a).
29 Id. at (d).
30 22 C.F.R. § 95.2(b).
31 Id. § 95.3(a).
32 Id. § 95.3(b).
33 Id. § 95.4.
34 Declaration of Samuel M. Witten, Cornejo-Barreto v. Seifert, Case No. 01-cv-662-AHS
(“Witten declaration”), available at www.state.gov/documents/organization/16513.pdf. The
United States subsequently has updated this declaration with one made by Clifton Johnson.
35 Witten declaration, 6.
36 Id. 7.
37 Id. 8.
38 Id. 9.
39 Id. 10.
40 Id. In the Response by the United States of America to the “List of issues to be considered
during the examination of the second periodic report of the United States of America” before
the Committee Against Torture, the United States noted that U.S. monitoring typically
is performed by U.S. political or consular officers at U.S. embassies overseas. Response of
the United States of America regarding the Examination of the Second Periodic Report, p.
47, available at www.state.gov/documents/organization/66172.pdf.
41 Appellee’s Brief, Cornejo-Barreto v. Siefert, 1999 WL 33651619 (9th Cir.), *37.
42 Witten declaration, 11-13.
43 Id. 11.
44 Id. 12.
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45 Id. 13.
46 Jimenez v. U.S. Dist. Court, 84 S. Ct. 14 (1963) (reprinting letter from United States to Venezuela
describing steps taken by Venezuela to eliminate risk of physical harm to extraditee).
It is not clear whether the Venezuelan government consented to the U.S. disclosure of the
assurances to the court.
47 Cornejo-Barreto, 218 F.3d 1004, 1007 (9 th Cir. 2000) (“Cornejo-Barreto I”).
48 Id. at 1007.
49 Cornejo-Barreto v. Siefert, 379 F.3d 1075 (9 th Cir. 2004) (“Cornejo-Barreto II”).
50 U.S. government brief, 1999 WL 33651619 at *23-24.
51 Id. at *30.
52 Id. at *40-41.
53 Cornejo-Barreto I, 218 F.3d at 1012-13.
54 Id. at 1013.
55 Id. at 1013-14.
56 Id. at 1016-17.
57 U.S. government brief in opposition to petition for habeas corpus, October 9, 2001, available
at http://www.state.gov/s/l/16152.htm.
58 Id.
59 Id.
60 Cornejo-Barreto II, 379 F.3d at 1079 (describing unpublished district court opinion).
61 Id.
62 Id. at 1086.
63 Id. at 1087.
64 Id. at 1087-88.
65 “Ninth Circuit to Rule En Banc on Extradition Issue,” Metropolitan News, Oct. 20, 2004,
available at http://www.metnews.com/articles/2004/corn102004.htm.
66 Hoxha v. Levi, 465 F.3d 554, 565 n. 16 (3d Cir. 2006).
67 Cornejo-Barreto v. Siefers, 389 F.3d 1307, 1307 (9 th Cir. 2004) (en banc) (“Cornejo-Barreto
III”).
68 Mironescu v. Costner, 480 F.3d 664, 671-73 (4 th Cir. 2007) (“Mironescu II”).
69 In re: Solis, 402 F. Supp. 2d 1128, 1132 (C.D. Cal. 2005).
70 Al Anazi v. Bush, 370 F. Supp. 2d 188, 194 (D.D.C. 2005); see also O.K. v. Bush, 377 F. Supp.
2d 102, 118 n.17.
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71 Mironescu v. Rice, 2006 WL 167981 (M.D.N.C.), *8 (“Mironescu I”).
72 Arambasic v. Ashcroft, 403 F. Supp. 2d 951, 963 n.6 (D.S.D. 2005).
73 Hoxha, 465 F.3d at 565 n.16.
74 Prasoprat, 421 F.3d at 1011 n.1 (noting that Cornejo-Barreto II disapproved of Cornejo-Barreto
I; that the en banc court vacated Cornejo-Barreto II; and that it denied the U.S. government’s
request to vacate Cornejo-Barreto I).
75 Prasoprat, 421 F.3d at 1016 n.5 (citing Cornejo-Barreto I).
76 Mironescu II, 480 F.3d at 668.
77 Mironescu I, 2006 WL 167981 at *8.
78 Id. at *9.
79 Id. at *10.
80 Id.
81 Mironescu II, 480 F.3d at 670. Plaster also rejected the U.S. government’s argument that
only the executive branch could consider alleged constitutional violations in extradition
cases. 720 F.2d 340 (4 th Cir. 1983). See also In re Burt, 737 F.2d 1477, 1487 (7 th Cir. 1984)
(suggesting that courts may review constitutional claims related to extradition); Blaxland
v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1208 (9 th Cir. 2003) (stating that
potential abuses in the requesting country rising to the level of torture are reviewable by
American courts).
82 Mironescu II, 480 F.3d at 672.
83 Id. at 673.
84 Id. at 677.
85 U.S. motion in opposition to the grant of certiorari, No. 07-5427 (government’s brief) and
2008 WL 94735 (2008) (denial of certiorari).
86 Russ Bikoff, Extradition and the U.N. Convention Against Torture: Mironescu v. Costner, 23
No. 7 Int’l Enforcement L. Rep. 256 (2007).
87 Mironescu II, 480 F.3d at 671; see also Bikoff, supra note 86.
88 Commentators have taken different positions about which FARRA argument is persuasive.
Bikoff argues that the Fourth Circuit’s efforts to read section 2242(d) as barring habeas
claims is “forced and unpersuasive.” In contrast, Bernard Oxman and Jacques Semmelman
argue that Cornejo-Barreto I is subject to “serious criticism” for ignoring provisions of
FARRA. Bernard Oxman & Jacques Semmelman, International Decision: Cornejo-Barreto v.
Seifert, 95 Am. J. Int’l L. 435, 438 (2001).
89 Hoxha, 465 F.3d at 565. Both the Third Circuit and the E.D. Pa. urged the Secretary of State
to examine seriously the charges of torture that Hoxha levied against the Albanian police.
Id. at 564 n.13; Hoxha v. Levi, 371 F. Supp. 2d 651, 660 n.3 (E.D. Pa. 2005).
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90 Arambasic, 403 F. Supp. 2d at 963 n.6.
91 Ahmad v. Wigan, 910 F.2d 1063, 1066 (2d Cir. 1990) (“It is the function of the Secretary of
State to determine whether extradition should be denied on humanitarian grounds. So far
as we know, the Secretary never has directed extradition in the face of proof that the extraditee
would be subjected to procedures or punishment antipathetic to a federal court’s sense of
decency. Indeed, it is difficult to conceive of a situation in which a Secretary of State would
do so.”) (citations omitted).
92 Gallina v. Fraser, 278 F.2d 77 (2d Cir.), cert. denied, 364 U.S. 851 (1960).
93 Gallina, 278 F.2d at 79.
94 Ahmad, 910 F.2d at 1066.
95 Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683 (9 th Cir. 1983).
96 Lopez-Smith v. Hood, 121 F.3d 1322, 1326-27 (9 th Cir. 1997).
97 Emami v. U.S. Dist. Court, 834 F.2d 1444, 1453 (9 th Cir. 1987).
98 See Cornejo-Barreto I, 218 F.3d at 1010 (stating that its “research failed to identify any case
in which this theoretical exception has been applied”); Mainero v. Gregg, 164 F.3d 1199,
1210 (9 th Cir. 1999) (stating that no court had ever relied on the “caveat” in Gallina to create
a humanitarian exception to extradition); Prasoprat, 421 F.3d at 1016.
99 Hoxha, 465 F.3d at 564 n.14 (“Since Gallina, several courts have hinted at the existence
of [an exception to the rule of non-inquiry]. . . . Regardless of whether such an exception
might be justified in some circumstances, we find that it does not apply here.”);
Prushinowski v. Samples, 734 F.2d 1016, 1019 (4th Cir. 1984) (stating extradition may be
barred if “the prisons of a foreign country regularly opened each day’s proceedings with
a hundred lashes applied to the back of each prisoner who did not deny his or her God
or conducted routine breakings on the wheel for every prisoner”); In re Burt, 737 F.2d at
1487 (due process challenge may be founded on “exceptional constitutional limitations as
may exist because of particularly attrocious [sic] procedures or punishments employed by
the foreign jurisdiction.”).
100 Koskotas v. Roche, 931 F.2d 169, 173-74 (1st Cir. 1991); Martin v. Warden, Atlanta Pen., 993
F.2d 824, 830 n.10 (11 th Cir. 1993) (holding that judicial intervention in extradition proceedings
based on humanitarian considerations is inappropriate).
101 Other untested propositions include the Suspension Clause challenge that the Fourth Circuit
mentioned in passing in Mironescu II, and the argument that substantive due process
may preclude the government from transferring individuals to situations in which the government
has deliberately disregarded the prospect of torture. See Robert Chesney, Leaving
Guantanamo: The Law of International Detainee Transfers, 40 U. Rich. L. Rev. 657, 739-744
(2006).
102 See I.N.S. v. St. Cyr, 533 U.S. 289 (2001); Rasul v. Bush, 542 U.S. 466 (2004); and Hamdan v.
Rumsfeld, 548 U.S. 557 (2006). See also Oxman & Semmelman, supra note 88, at 438 (criticizing
Cornejo-Barreto I for ignoring the plain language of FARRA).
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103 1985 U.S.-UK Extradition Treaty, art. 3(a) (permitting a court to decline to issue an extradition
order if the fugitive could show that the UK made the extradition request “with a view
to try or punish him on account of his race, religion, nationality or political opinions”).
104 U.S.-Finland Extradition Treaty, June 11, 1976, 31 U.S.T.S. 944 (1980), art. 7(1)(c); U.S.-
Sweden Extradition Treaty, Oct. 24, 1961, Art. V(6), available at http://untreaty.un.org/
unts/1_60000/14/27/00027332.pdf; see also Murchison, supra note 22, at 304. In contrast,
the only recently-negotiated extradition treaty with such a clause – the U.S.-France Extradition
Treaty – specifically states that the Executive Branch makes the determination about
humanitarian issues.
105 See, e.g., U.S.-UK Extradition Treaty, art. 4 (2006); U.S.-Peru Extradition Treaty, art. IV
(2003). See also David Lieberman, Sorting the Revolutionary From the Terrorist: The Delicate
Application of the “Political Offense” Exception in U.S. Extradition Cases, 59 Stan. L. Rev. 181,
190 (2006) (“The political offense exception was crafted to delicately balance the [requested]
State’s concern for the fugitive’s welfare with its general aversion to involvement in the political
affairs of the requesting State. The grafting of these interests onto a legal framework,
with resolution vested in the judicial branch, may be designed to provide a “legal cloak”
for what is essentially a political judgment. . . . [T]he vesting of the decision in the judicial
branch creates an equally knotty balancing act -- the application of a superficially legal
framework to a question fraught with political considerations.”).
106 The Department of Homeland Security now bears partial responsibility for immigration
issues.
107 See 8 U.S.C. § 1231(b)(3)(B) (creating exceptions to withholding of removal in face of CAT
protection where the Attorney General decides that there are serious reasons to believe,
inter alia, that the alien committed a serious non-political offense abroad or that there are
reasonable grounds to believe that the alien poses a danger to the security of the United
States).
108 8 C.F.R. § 208.17(d).
109 Id. § 208.18(c). Although the original regulation gave the Attorney General the role of
reviewing the assurances, the Secretary of Homeland Security since has assumed that role.
110 Id. § 208.18(c)(3).
111 Human Rights Watch, Cases Involving Diplomatic Assurances Against Torture: Developments
Since May 2005: United States (January 2007), p. 20, available at http://www.hrw.
org/backgrounder/eca/eu0107/9.htm.
112 Khouzam v. Hogan, 529 F. Supp. 2d 543 (M.D. Pa. 2008). The United States also used assurances
in the well-known case of Maher Arar, which the United States treated as a removal
case (despite human rights groups’ assertion that it was a rendition). The U.S. government
stated that it received assurances from the Government of Syria prior to deporting Mr. Arar
there. Mr. Arar sued the U.S. government; his case is on appeal. See Arar v. Ashcroft, 414 F.
Supp. 2d 250 (E.D.N.Y. 2006).
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113 Khouzam, 529 F. Supp. 2d at 548.
114 Id. at 549.
115 Id.
116 Id. at 551.
117 Id. at 556.
118 Id. at 557.
119 Id. at 547.
120 Id. at 559.
121 Id. at 560.
122 Id.
123 Id. at 563 (quoting Mironescu II, 480 F.3d at 672-73).
124 Khouzam, 529 F. Supp. 2d at 563.
125 Id. at 564. This part of the opinion seems to be doing two different things. On the one
hand, it seems to be dicta, in that the court already had held that FARRA did not preclude
judicial review. On the other hand, the first part of the court’s ruling – that FARRA did not
preclude judicial review – left open the question of what kind of review the statute required.
The “dicta” part of the opinion appears to be answering that question by setting out the type
of review that the government needed to provide the alien.
126 Id. The court cited a Human Rights Watch affidavit stating that Austria, Canada, Germany,
Netherlands, Russia, Sweden, Switzerland, Turkey, and the United Kingdom all provide
judicial review of the reliability and sufficiency of diplomatic assurances. That affidavit also
described the elements of the processes that the other governments provide: the person
subject to transfer is informed of the case against him; is given the chance to rebut the
government’s effort to remove him; the transferring government produces the assurances; a
court or independent, impartial body evaluates the text of the assurances and the context in
which the assurances were negotiated; and the person subject to transfer has the chance to
review the assurances and associated documents. See Declaration of Julia Hall (Khouzam
v. Hogan), 4, available at http://hrw.org/backgrounder/eca/khouzam0807/khouzam0807.
pdf.
127 Khouzam, 529 F. Supp. 2d at 567-68 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)).
128 Khouzam, 529 F. Supp. 2d at 568-69.
129 Id. at 569.
130 Id. at 569-70.
131 Zadvydas v. Davis, 533 U.S. 678 (2001).
132 Zadvydas, 533 U.S. at 679. The Court has subsequently extended this holding to non-admitted
aliens. Clark v. Martinez, 543 U.S. 371 (2005).
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133 Zadvydas, 533 U.S. at 679.
134 8 C.F.R. § 241.14.
135 Id. § 241.14(c)(2).
136 Immigration Relief under the Convention Against Torture for Serious Criminals and
Human Rights Violators; Hearing Before the House Subcomm. on Immigration, Border
Security, and Claims of the House Comm. on the Judiciary, 108th Cong., 1st sess. 45, Serial
No. 34, at 13 (2003) (prepared statement of C. Stewart Verdery, Asst. Secretary for Policy
and Planning, Border and Transportation Security Directorate, U.S. Dept. of Homeland
Security).
137 8 U.S.C. § 1226a(a)(3).
138 Another option includes trying to find a third country to accept the deportee, but it is generally
difficult to find such a country.
139 Declaration of Clint Williamson (“Williamson declaration”), 6.
140 Id.
141 Although the Supreme Court decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), concluded
that Guantanamo detainees were entitled to file habeas corpus petitions as a result
of the level of U.S. control over the Guantanamo facility, it does not necessarily follow that
CAT Article 3 applies to Guantanamo detainees as a matter of treaty law.
142 Williamson declaration, 4; Declaration of Peter Benkert (“Benkert declaration”), 6. See
Human Rights Watch, Still at Risk, p. 2.
143 Hamdan, 548 U.S. 557, ___, 126 S. Ct. 2749, 2795-96 (2006).
144 Some have proposed transferring Guantanamo detainees to the United States. This raises
the question whether Afghan detainees who are not members of al Qaeda should be treated
as protected persons once inside the United States.
145 See, e.g., Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August
1949, art. 3.
146 Williamson declaration, 6. It is not clear whether the Government seeks assurances in
cases in which a detainee voluntarily wishes to return to his country.
147 Almurbati v. Bush, 366 F. Supp. 2d 72, 77 (D.D.C. 2005) (citations omitted).
148 Williamson declaration, 9-11.
149 Chesney, supra note 101, at 665 & n.24 (citing DOD press releases).
150 Congress’s first effort to strip the courts of habeas jurisdiction over cases filed by Guantanamo
detainees was in the Detainee Treatment Act, which the President signed into law in
December 2005. Title X, 2006 DOD Authorization Act, Pub. L. No. 109-148, 119 Stat. 2680
(“DTA”).
151 Abdah v. Bush, 2005 WL 711814 (D.D.C. 2005).
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152 Abdah v. Bush, Respondents’ Memorandum.
153 Chesney, supra note 111, at 667 (noting that by the end of June 2005, at least 27 decisions
granted detainees the requested notice requirements).
154 Abdah, 2005 WL 711814.
155 Abdullah v. Bush, No. 05-CV-0023 (RWR) (March 16, 2005 Order).
156 Ameziane v. Bush, No. 05-CV-0392, 2005 WL 839542 (ESH) (April 12, 2005 Order); see also
Ahmed v. Bush, 2005 WL 1606912 (D.D.C. July 08, 2005); Alsaaei v. Bush, 2006 WL 2367270
(D.D.C. August 14, 2006).
157 Chesney, supra note 111, at 668 (noting that the al Marri court implicitly assumed the
existence of such a right, but failed to identify the sources of law that might give rise to that
right and the standard of evidence that a detainee would have to meet to trigger that right);
compare Qassim v. Bush, 2005 WL 3508654, *4-5 (D.D.C.) (considering that the only habeas
relief the court could order would be release into the United States – given that the government
had not found a foreign country to accept particular Guantanamo detainees – and
concluding that ordering detainees admitted to United States would have national security
and diplomatic implications beyond the authority of the court).
158 Al Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005).
159 Al Anazi, 370 F. Supp. 2d at 194.
160 Id.
161 Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005) (April 14, 2005 Order).
162 Almurbati, 366 F. Supp. 2d at 81.
163 See, e.g., Hamlily v. Gates, No. 07-1127 (D.C. Cir. July 16, 2007) (denying motion for order
requiring government to provide thirty days’ notice of intended removal because the court
lacked jurisdiction based on D.C. Circuit precedent); Belbacha v. Bush, No. 07-5258 (D.C.
Cir. Aug. 2, 2007) (denying motion for temporary restraining order against transfer from
Guantanamo and for stay pending appeal, citing Boumediene).
164 Belbacha v. Bush, 2008 WL 680637, *2 (D.C. Cir. March 14, 2008).
165 Rasul, 542 U.S. at 483-84.
166 DTA § 1005(e)(1)-(2).
167 Hamdan, 126 S. Ct. at 2764.
168 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (“MCA”).
169 MCA § 7(e)(1).
170 Id., § 7(e)(2).
171 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).
172 Boumediene v. Bush, 128 S. Ct. 2229, 2274 (2008).
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173 See, e.g., Belbacha v. Bush, 2007 WL 2422031 (D.D.C. 2007) (holding that the MCA is clear
that the court lacks jurisdiction to hear a motion to prevent Belbacha’s transfer from Guantanamo
to Algeria); Zalita v. Bush, Case No. 07-5129 (D.C. Cir.) (Order of April 25, 2007)
(denying motion to enjoin transfer of Guantanamo detainee based on lack of jurisdiction);
Hamlily v. Gates, Case No. 07-1127 (D.C. Cir.) (Order of July 16, 2007) (denying motion for
order requiring U.S. government to provide thirty days’ notice before transfer). But see Belbacha
v. Bush, 2008 WL 680637, *2 (D.C. Cir. March 14, 2008) (relying on grant of certiorari
as basis on which to preserve jurisdiction under All Writs Act).
174 See, e.g., Alhami v. Bush, Memorandum Order, CA No. 05-359 (D.D.C. Oct. 2, 2007) (granting
detainee’s request for preliminary injunction preventing his transfer to Tunisia pending
the outcome of Boumediene), available at http://www.scotusblog.com/wp/wp-content/uploads/2007/10/kessler-rahman-order-10-2-07.pdf.
There is ambiguity in the Court’s holding
about whether the Court struck down all of sec. 7, or only the habeas-stripping provision
in sec. 7. See In re: Guantanamo Bay Litigation, Case 1:05-cv-01509-UNA (Memorandum
Opinion, Aug. 7, 2008), available at www.scotusblog.com/wp/wp-content/uploads/2008/08/
urbina-ruling-uighurs-8-7-08.pdf.
175 See Chesney, surpra note 111, at 737-38.
176 Boumediene, 128 S. Ct. at 2252-53. CAT obligations require states to prevent torture “in any
territory under its jurisdiction.” On the other hand, the United States has interpreted its
CAT article 3 obligations to attach to custodial transfers from U.S. territory only; Boumediene
did not conclude that the Guantanamo detention facility constituted U.S. territory, and
in fact acknowledged that the detainees were being held outside U.S. sovereign territory. Id.
at 2260.
177 Chesney, surpra note 111, at 683-84.
178 Munaf v. Geren, 128 S. Ct. 2207 (2008).
179 GC III does recognize that transfers of POWs to third states could raise treatment concerns.
Article 12 provides that a detaining power may only transfer POWs to a third power that itself
is a party to GC III and only after the detaining power satisfies itself of the third power’s
ability and willingness to apply GC III to the POWs.
180 GC III, art. 118.
181 Theodor Meron, The Humanization of Humanitarian Law, 94 Am. J. Int’l L. 239, 254 (2000).
182 Id. at 254.
183 Id.
184 J. P. Charmatz & Harold M. Witt, Repatriation of Prisoners of War and the 1949 Geneva
Convention, 62 Yale L. J. 391, 401 (1953).
185 Jean S. Pictet, Commentary on the 1949 Geneva Convention Relative to the Treatment of Pris-
oners of War 542.
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186 Meron, supra note 181, at 255. See also Christiane Shields-Delessert, Release and Repatriation
of Prisoners of War at the End of Active Hostilities: A Study of Article 118, Paragraph 1 of
the Third Geneva Convention Relative to the Treatment of Prisoners of War (1977).
187 John Bellinger, Lecture at the University of Oxford, Dec. 10, 2007 (First Gulf War), available
at www.state.gov/s/l/rls/96687.htm; Meron, supra note 181, at 256 (Iran-Iraq War).
188 GC IV, art. 45.
189 Id.
190 UN Security Council Resolution 1776 (Sept. 19, 2007).
191 DOD Detainee Directive 2310.01E (2006).
192 The litigants in the Iraq cases hold U.S. citizenship. See infra notes 204-212 and accompany-
ing text.
193 The ISAF policy is described at http://www.nato.int/docu/speech/2005/s051208g.htm.
194 The European and Canadian agreements are discussed in Part IV.
195 See Ruzatullah v. Rumsfeld, Civ. A. No. 06-CV-01707 (GK), Respondents’ Opposition to Petitioner’s
Motion for an Order Requiring Respondents to Provide 30 Days’ Advance Notice
of any Proposed Transfer of Petitioner Rohullah from Bagram, available at http://docs.justia.
com/cases/federal/district-courts/district-of-columbia/dcdce/1:2006cv01707/122762/28/0.
pdf (noting that the U.S. government has on-going diplomatic arrangements with the IROA
regarding U.S. presence, “including arrangements regarding the transfer of Afghan citizens
detained by the United States”).
196 Andrea Koppel & Elise Labott, “U.S. officials: Gitmo transfer talks active,” CNN, August 9,
2005, available at www.cnn.com/2005/US/08/09/detainee.release/index.html.
197 Josh White & Robin Wright, “Afghanistan Agrees to Accept Detainees,” Wash. Post, August
5, 2005, at A1.
198 ISAF letter, “Access to Detainees Transferred to the Government of Afghanistan,” available
at http://canada-afghanistan.gc.ca/cip-pic/afghanistan/library/docs-en.asp.
199 Id.
200 Id.
201 Ruzatullah v. Gates, Motion for an Order Requiring Respondents to Provide 30-Days’
Advance Notice of any Proposed Transfer of Petitioner Rohullah from Bagram (August 10,
2007), available at http://docs.justia.com/cases/federal/district-courts/district-of-columbia/
dcdce/1:2006cv01707/122762/26/0.pdf.
202 Ruzatullah v. Gates, Memorandum Order (October 2, 2007) at 2.
203 Id. at 3.
204 An Iraqi court recently overturned his conviction. Josh White & Robert Barnes, “Iraq Detention
Case Heads to High Court,” Wash. Post, March 23, 2008.
205 Munaf v. Geren and Geren v. Omar, 128 S. Ct. 741 (Dec. 7, 2007) (granting certiorari).
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206 Geren v. Omar and Munaf v. Geren, Brief for the Federal Parties, available at http://
brennan.3cdn.net/a53c68231bc0cd5a24_hgm6bh569.pdf.
207 Munaf, 128 S. Ct. at 2218.
208 Id. at 2220-22.
209 Geren v. Omar and Munaf v. Geren, Brief for the Federal Parties at 47; Munaf v. Geren, Petition
for Writ of Certiorari at 5, available at thttp://brennan.3cdn.net/325ec9675b2ba5c78a_
zkm6iicnh.pdf.
210 Geren v. Omar and Munaf v. Geren, Brief for the Federal Parties at 47.
211 Munaf, 128 S. Ct. at 2225.
212 Id. at 2226.
213 Id. at 2228 (Souter, J., concurring) (citation omitted).
214 See Noriega v. United States, 1990 WL 95527 (S.D. Fla. 1990) (treating Noriega as a POW);
GC III, art. 12.
215 See United States v. Noriega, Case 88-0079-CR-Hoeveler (Sept. 5, 2007). Unlike many
other detainees opposing their transfers, Noriega did not assert that France would subject
him to torture or inhumane treatment.
216 See id.
217 United States v. Noriega, 2007 WL 2947981 (Sept. 7, 2007).
218 Noriega v. Pastrana (S.D. Fla., Jan 31, 2008) (No. 07-CV-22816-PCH) (text not available on
Westlaw).
219 The United States reached similar agreements with the governments of the Republic of Korea
in 1983 and Saudi Arabia in 1991.
220 The Munaf petitioners did not assert FARRA claims in their habeas or certiorari filings, so
the Court did not consider whether the FARRA prohibits the Executive from transferring
them when torture may result. The Court did suggest, though, that FARRA claims may be
limited to certain immigration proceedings. Munaf, 128 S. Ct. at 2226 n.6.
221 For instance, Mironescu and Cornejo-Barreto became moot. The government is appealing
Khouzam and several courts stayed further decisions about Guantanamo transfers while
awaiting the Court’s decision in Boumediene.
222 While groups like Human Rights Watch have called for total prohibition on the use of
diplomatic assurances, the Committee Against Torture and the UN Special Rapporteur on
Torture have not insisted that assurances not be used. Instead, they have urged that governments
should use assurances carefully. In 2006, the Committee Against Torture made a
nonbinding recommendation that the United States “should only rely on ‘diplomatic assurances’
in regard to States which do not systematically violate the Convention’s provisions,
and after a thorough examination of the merits of each individual case. The State party
should establish and implement clear procedures for obtaining such assurances, with
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adequate judicial mechanisms for review, and effective post-return monitoring arrangements.”
Conclusions and Recommendations of the Committee Against Torture, United
States of America, UN Doc. CAT/C/USA/C/2 (2006), available at http://www1.umn.
edu/humanrts/cat/observations/usa2006.html. In addition, the UN Special Rapporteur
on Torture stated that while diplomatic assurances “should not be ruled out a priori,” they
should be coupled with a system to monitor the treatment of transferred persons to ensure
that they are not treated inhumanely. Interim Report of the Special Rapporteur of the Commission
on Human Rights on the Question of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, U.N. General Assembly, 59th Sess., A/59/324. See also
Robert Goldman, Report of the Independent Expert on the Protection of Human Rights
and Fundamental Freedoms While Countering Terrorism, E/CN.4/2005/103 (Feb. 7, 2005),
60 (listing protections that should be contained in diplomatic assurances: prompt access
to a lawyer; recorded interviews of detainees, independent and timely medical examinations,
prohibition on incommunicado detention, and qualified monitors conducting regular,
private interviews).
223 For a discussion of key criticisms levied against the UK’s use of deportations with assurances,
see Kate Jones, Deportations with Assurances: Addressing Key Criticisms, 57 Int’l & Comp. L.
Q. 183 (2008).
224 See, e.g., Human Rights Watch, Amnesty International, and the International Commission
of Jurists, Reject Rather than Regulate (Dec. 2005), available at http://hrw.org/backgrounder/
eca/eu1205/1.htm#_Toc121565673. Many states would argue that this overstates their legal
obligations. First, the obligation is not to not “expose individuals to the danger of torture.”
Rather, for parties to the CAT, the obligation is to not “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.” Second, there is much debate about the scope of
the “non-refoulement” obligation. As discussed below, the United States believes that this
legal obligation attaches only to situations in which the person at issue is located within U.S.
territory. Third, the United States has stated that its human rights-related obligations related
to non-refoulement are contained in the CAT and the Refugee Convention and that it does
not have related obligations as a matter of customary international law.
225 Reports from human rights groups tend not to differentiate among various situations in
which states use assurances. Although human rights groups’ concerns about diplomatic assurances
extend to the extradition context, the concerns seem more muted in this area. One
reason may be that the person being extradited is, by definition, being sent into a criminal
justice system, where the transferring state has a good understanding of what likely will happen
to him.
226 See, e.g., Louise Arbour, In Our Name and on Our Behalf, 55 Int’l & Comp. L. Q. 511 (2006).
227 See Positions of the Jacob Blaustein Institute for the Advancement of Human Rights (JBI)
and Columbia University Law School’s Human Rights Clinic on Minimum Standards and
Guidelines on the Use of Diplomatic Assurances (Dec. 6, 2005), A.II.2.
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228 See Abu Qatada, 296 (“Mr Oakden considered that Mr Nowak’s concern that it was
‘unclear’ why states which breach international obligations should comply with assurances,
involved a misunderstanding of how an MOU worked in practice. States look not only to
the legal status of international documents when deciding their behaviour but to the whole
political context. The UK Government was party to many non-legally binding bilateral
MOUs with other governments on a diverse range of subjects. This MOU, while imposing
less than a legal obligation, was made with respect to one state only, with an exceptionally
strong political commitment on the part of both governments; it also included the monitoring
arrangements. United Nations human rights treaties might constitute legal obligations
between each state party and every other state party in the world, but their enforcement
mechanisms are relatively weak. He stated that the protection provided by the MOU was
more specific than multilateral human rights treaties, related to identified individuals and
referred expressly to their treatment.”); 495 (“The fact that the receiving state does not
adhere fully or in large measure to its multilateral international human rights obligations is
relevant to whether political realities and diplomatic relationships will lead to compliance,
but cannot rule out assurances as a means of ensuring that the removing state’s obligations
are adhered to.”).
229 Human Rights Watch, Empty Promises: Diplomatic Assurances No Safeguard Against Torture
(April 2004), p. 4, available at http://www.hrw.org/reports/2004/un0404/diplomatic0404.
pdf.
230 Manfred Nowak, UN Special Rapporteur on Torture, December 23, 2005 report, § 3, 31
[hereinafter Nowak report].
231 HRW, Reject Rather Than Regulate, available at http://hrw.org/backgrounder/eca/eu1205/8.
htm (Agiza and Arar); HRW, Ill-Fated Homecomings: A Tunisian Case Study of Guantanamo
Repatriations, available at http://hrw.org/reports/2007/tunisia0907/tunisia0907web.pdf
(Tunisian detainees); HRW, The Stamp of Guantanamo: The Story of Seven Men Betrayed
by Russia’s Diplomatic Assurances to the United States, available at http://www.hrw.org/reports/2007/russia0307/
(Russian detainees). In the Tunisian cases, only of the two detainees
complained of torture on return. In the Russian cases, the seven detainees were held
by Russia for three months after their return, then released. Russia subsequently detained
three of the seven on suspicion of participation in various bombings; the alleged torture occurred
during this second period of detention.
232 Rebekah Braswell, Protection Against Torture in Western Security Frameworks: The Erosion
of Non-Refoulement in the UK-Libya MOU, U. Oxford Refugee Stud. Center Working Paper
No. 35 (Oct. 2006) 17; Nowak report, § 3, 31.
233 The UK has reported on six Algerians transferred back to Algeria, and has discovered no
mistreatment to date.
234 Nowak report, § 3, 31.
235 Id.
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236 Abu Qatada, 301.
237 Nowak report, § 3, 31.
238 HRW, Reject Rather than Regulate.
239 It may be the case that a state has certain obligations to prosecute or extradite individuals
who have engaged in torture if the individual is present in that state. See, e.g., GC III, arts.
129-130 (requiring high contracting parties to extradite or prosecute individuals, regardless
of nationality, who have tortured prisoners of war or treated them inhumanly); Fourth
Geneva Convention, arts. 146-147 (same, where victim is a protected person).
240 H.R. 1352, available at http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.1352:.
241 Id. § 2(a). Note that this would expand the existing U.S. legal obligation, which prohibits
transfers from U.S. territory to face torture, but not transfers to face CIDT.
242 Id. § 2(b)(1).
243 Id. § 2(c).
244 Id. § 2(d)(2).
245 Id. § 2(d)(1) and (2).
246 Id. § 2(e)(1). The Optional Protocol to the CAT creates an independent body to visit detention
facilities in states parties, but almost all of the parties to date are from European or
Latin American countries.
247 H.R. 1352, § 2(e)(2).
248 H.R. 1352, § 3(a)(2).
249 S. 654 (2005), available at http://thomas.loc.gov/cgi-bin/query/D?c109:1:./temp/
~mdbsnf0gAt::.
250 Id. § 2(c). Note that this provision addresses only torture, not CIDT. This provision also
would expand the obligation by creating a blanket prohibition rather than a case by case
analysis as to the risk to a specific individual.
251 S. 1876, available at http://thomas.loc.gov/cgi-bin/query/F?c110:1:./temp/~mdbsONsf9q:
e4470:.
252 See text accompanying notes 363-71 infra.
253 Soering v. United Kingdom, 1989 E. Ct. Hum. R., Series A no. 161, 90-91 (“The decision by
a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage
the responsibility of that State under the Convention, where substantial grounds have been shown for
believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to
inhuman or degrading treatment or punishment in the requesting country.”).
254 Cruz Varas and Others v. Sweden, Series A no. 201, p. 28, 69 and 70 (20 March 1991).
255 Chahal v. United Kingdom, 23 Eur. H. R. Rep. 413 (Eur. Ct. H. R. 1996), 79-80 (citations
omitted).
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256 Id. 37.
257 Id. 66.
258 R. v. Secretary of State for the Home Department, ex parte Chahal [1994] Immigration
Appeal Reports, p. 107.
259 Chahal, 23 Eur. H. R. Rep. at 76 (need for balancing test).
260 See Third Party Intervention by Liberty & Justice, Ramzy v. Netherlands, 55 (citing UK
submission), available at http://www.icj.org/IMG/pdf/Ramzy_intervention_Justice.pdf.
261 Chahal, 23 Eur. H. R. Rep. at 79-80 (citations omitted). See also D v. United Kingdom, 24
Eur. H. R. Rep. 423 (Eur. Ct. H. R. 1997), 47; Cruz Varas v. Sweden, 76; H.L.R. v. France,
11/1996/630/813 (1997) at 40 (stating that it did not rule out the possibility that Article 3
of the ECHR may apply where the danger emanates from persons who are not public officials
when applicant shows that the risk is real and that the authorities of the receiving State
cannot obviate the risk).
262 Chahal, 23 Eur. H. R. Rep. at 37.
263 Chahal, 105.
264 Chahal, Joint Partly Dissenting Opinion, 1.
265 Id. 5.
266 Anti-Terrorism Crime and Security Act 2001, Part 4.
267 UK Joint Committee on Human Rights, “Counter-Terrorism and Human Rights: Terrorism
Bill and Related Matters,” available at http://www.publications.parliament.uk/pa/jt200506/
jtselect/jtrights/75/75ii.pdf, questions 46 and 48.
268 Charles Clarke, UK Home Secretary, “Speech to the European Parliament,” Sept. 7, 2005,
available at http://www.eu2005.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/
ShowPage&c=Page&cid=1107293561746&a=KArticle&aid=1125559979691.
269 UK Joint Committee on Human Rights, supra note 267, at qu. 46.
270 UK and others, Joint Observations, available at http://ejp.icj.org/IMG/UKobservations.pdf
[hereinafter, Joint Observations].
271 The Dutch government has stated that it supports the gist of the joint intervention in
Ramzy. Additional Observations of the Government of the Netherlands, Response to
Third-Party Interventions, 4, available at http://ejp.icj.org/IMG/NLaddendum.pdf.
272 Joint Observations, 30.
273 Id. 2.
274 Id. 14.
275 Id. 15.
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276 See Interights’ Intervention Before the Eminent Jurists Panel, session 2-4 July 2007,
Brussels, p. 3.
277 Id. p. 6 (describing the brief of Interights and seven NGOs in Ramzy).
278 Saadi v. Italy, ECHR Grand Chamber Judgment, March 2008, 138.
279 In Saadi, the Italian government stated that the Tunisian government had promised to treat
Saadi humanely if returned. http://bbsnews.net/article.php/20070927103001808.
280 The UK is not alone among European states in engaging in deportations with assurances. In
2001, Sweden expelled two individuals, Agiza and al-Zari, to Egypt after it obtained assurances
from the Egyptian government that they would not be subject to the death penalty,
would receive fair trials, and would not be tortured or ill-treated. Germany has deported an
individual to Turkey using assurances, and the ECtHR recently precluded Italy from deporting
an individual to Tunisia despite the diplomatic assurances it received from Tunisia.
281 Immigration Act of 1971, Schedule 2.
282 Asylum and Immigration Act 1993, schedule 2, 6, available at http://www.opsi.gov.uk/
acts/acts1993/ukpga_19930023_en_3#sch2.
283 Chahal, 58-60; Secretary of State for the Home Department v. Rehman, UK House of
Lords, 9, available at http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/
jd011011/rehman-1.htm; see also UK House of Commons Constitutional Affairs Committee,
“The Operation of the Special Immigration Appeals Commission (SIAC) and the Use of
Special Advocates,” 7th Report of Session 2004-05, Vol. I, 44-45 (describing the advisory
panel system), available at http://www.justice.org.uk/images/pdfs/cacseventhreport.pdf.
284 Special Immigration Appeals Commission Act 1997, available at http://www.opsi.gov.
uk/acts/acts1997/ukpga_19970068_en_1; and Nationality, Immigration and Asylum Act
2002, sec. 97(1)(a), available at http://www.opsi.gov.uk/acts/acts2002/pdf/ukpga_20020041_
en.pdf.
285 Special Immigration Appeals Commission Act 1997, § 4.
286 See, e.g., Y v. Secretary of State, SIAC, Appeal No. SC/36/2005, 404 (“The decision-maker is
asking the single question: are we satisfied on all the evidence, including that as to the past
risk, that Y would face no real risk of Article 3 ill-treatment? We are so satisfied.”), available
at http://www.siac.tribunals.gov.uk/Documents/Y%20%20%20OPEN%2016%20Aug.pdf.
287 Special Immigration Appeals Commission Act 1997, §§ 5 and 6.
288 Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034), § 23;
see also UK House of Commons Constitutional Affairs Committee, “The Operation of the
Special Immigration Appeals Commission (SIAC) and the Use of Special Advocates,” 7th
Report of Session 2004-05 (describing in detail the role of Special Advocate).
289 Anti-Terrorism, Crime and Security Act 2001, available at http://www.opsi.gov.uk/acts/
acts2001/ukpga_20010024_en_4#pt4-pb1-l1g23.
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290 UK Home Office, “Counter-Terrorism Powers: Reconciling Security and Liberty in an Open
Society,” (Feb. 2004), 22, available at http://www.statewatch.org/news/2004/feb/uk-CTdiscussion-paper.pdf.
291 Y v. Secretary of State, 222. The UK’s Foreign Secretary has created a position of “Representative
for Deportation with Assurances,” and that representative has both helped negotiate
assurances and given evidence in numerous SIAC cases.
292 The UK also has relied on “control orders” under the Prevention of Terrorism Act 2005
to monitor and limit the movement of individuals within the UK who are not subject to
removal. Prevention of Terrorism Act 2005, §§ 1 and 2 (“The Secretary of State may make
a control order against an individual if he—(a) has reasonable grounds for suspecting that
the individual is or has been involved in terrorism-related activity; and (b) considers that it
is necessary, for purposes connected with protecting members of the public from a risk of
terrorism, to make a control order imposing obligations on that individual.”), available at
http://www.opsi.gov.uk/acts/acts2005/pdf/ukpga_20050002_en.pdf.
293 Y & Othman v. Secretary of State, SIAC, SC/36/2005 & SC/15/2005 (July 2006), 58, available
at http://www.siac.tribunals.gov.uk/Documents/C362005_SC152005.pdf.
294 MT, RB & U v. Secretary of State, 2007 E. W. C. A. Civ. 808, 4, available at http://www.
bailii.org/ew/cases/EWCA/Civ/2007/808.html#para1.
295 VV v. Secretary of State, SIAC, SC/59/2006, 19 (citing MT, RB & U v Secretary of State,
2007 E. W. C. A. Civ. 808, 127), available at http://www.siac.tribunals.gov.uk/Documents/
outcomes/VV%20-Oct07.pdf.
296 Examination of Witness Charles Clarke, Joint Committee on Human Rights, Minutes of
Evidence, Oct. 24, 2005, question and answer no. 51, available at http://www.publications.
parliament.uk/pa/jt200506/jtselect/jtrights/75/5102404.htm.
297 Id.
298 HRW, Still at Risk, p. 20-21.
299 BBC News, “Cleric Loses Deportation Appeal,” Feb. 26, 2007, available at http://news.bbc.
co.uk/2/hi/uk_news/6396447.stm.
300 http://www.statewatch.org/news/2005/aug/uk-jordan-MOU.pdf. For a detailed history of
the UK-Jordan negotiations of the MOU, see Abu Qatada, SIAC, SC/15/2005, 171-74,
available at http://www.siac.tribunals.gov.uk/Documents/QATADA-FINAL-7-FEB-2007.
pdf.
301 At least one other individual (known by the initials “VV”) has challenged his deportation to
Jordan on the basis of the MOU. VV, available at http://www.siac.tribunals.gov.uk/Documents/outcomes/VV%20-Oct07.pdf.
In dismissing VV’s appeal, SIAC stated that there was
no real risk that the intelligence service would disobey the orders of the Jordanian government
in investigating him for terrorist acts; placed some weight on the ability of the monitoring
body to visit VV; and noted that the UK government “takes its obligation to see that
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diplomatic assurances in relation to deportees are fulfilled seriously.” VV, 27-29.
302 Abu Qatada, 18 and 36, available at http://www.siac.tribunals.gov.uk/Documents/QA-
TADA-FINAL-7-FEB-2007.pdf
303 Abu Qatada, 341.
304 Abu Qatada, 501-503.
305 Othman v. Secretary of State, [2008] E. W. C. A. Civ. 290 (April 9, 2008), available at
http://www.bailii.org/ew/cases/EWCA/Civ/2008/290.html. See also BBC News, “Preacher
Abu Qatada wins appeal,” Apr. 9, 2008, available at http://news.bbc.co.uk/2/hi/uk_
news/7338553.stm.
306 Othman, [2008] EWCA, 43.
307 Memorandum of Understanding Between the General People’s Committee for Foreign Liaison
and International Co-Operation of the Great Socialist People’s Libyan Arab Jamahiriya
and the Foreign and Commonwealth Office of the United Kingdom of Great Britain and
Northern Ireland Concerning the Provision of Assurances in Respect of Persons Subject to
Deportation (Oct. 18, 2005), available at http://www.icj.org/IMG/pdf/05.10.09_DWA_M_
Libya_FINAL.pdf.
308 DD & AS v. Secretary of State, SIAC, Appeal No. SC/42/2005 and SC/50/2005 (Apr. 27,
2007), 215, available at http://www.siac.tribunals.gov.uk/Documents/siac_sc_42_50_2005.
pdf. Despite the family connections and the fact that the Libyan government partly funded
the QDF, the QDF claimed that it had considerable experience visiting persons to investigate
torture allegations. 227. The UK claimed that the QDF was uniquely independent in
Libya. 228. The UK undertook to train people to recognize symptoms of torture. 229.
And the QDF undertook to place its reports on the website and use the international media
if necessary to bring attention to mistreatment. 230.
309 DD and AS, 220.
310 Id. 221.
311 Id. 133.
312 Id. 275. The Libyan government had assured the UK that the individuals would be
detained for the first seven days of their return in a facility run by the judicial police; after
seven days, the police would turn the investigation over to the Attorney General’s office.
222. If they were convicted, they would serve their sentences in a judicial police facility.
223.
313 Id. 299.
314 Id. 316.
315 Id. 317.
316 Id. 319.
317 Id. 346, 348, 364, 368, and 370.
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318 Id. 371.
319 AS & DD v. Secretary of State, [2008] E. W. C. A. Civ. 289 (Apr. 9, 2008), 82-83, available
at http://www.bailii.org/ew/cases/EWCA/Civ/2008/289.html. See also BBC News, “Preacher
Abu Qatada Wins Appeal,” Apr. 9, 2008 (quoting the UK Home Office as stating that it
would not appeal the decision), available at http://news.bbc.co.uk/2/hi/uk_news/7338553.
stm.
320 The UK successfully has removed six Algerians to Algeria. See G v. Secretary of State; Sihali
v. Secretary of State; PP v. Secretary of State; U v. Secretary of State; House of Commons
Foreign Affairs Committee, Human Rights Annual Report 2006 (Third Report of Session
2006-07) (hereinafter, “HCFAC Report”), 64-65, available at http://www.publications.
parliament.uk/pa/cm200607/cmselect/cmfaff/269/269.pdf.
321 HCFAC Report, 64-65.
322 Id. 65.
323 Y v. Secretary of State, SIAC, SC/36/2005 (Aug. 2006), 3, available at http://www.siac.tribunals.gov.uk/Documents/Y%20%20%20OPEN%2016%20Aug.pdf.
324 Y, 341.
325 Y, 342-45.
326 Y, 374-75.
327 Y, 391. See also BB v. Secretary of State, SIAC, SC/39/2005 (Dec. 2006), 5 (discussing
how SIAC would evaluate Algeria’s assurances).
328 Immigration and Refugee Protection Act 2001 (“IRPA”), § 115, available at http://laws.
justice.gc.ca/en/I-2.5/text.html.
329 Id.
330 Id. § 77.
331 Id. §§ 97, 112-13.
332 Proceedings of the Special Senate Committee on the Anti-Terrorism Act (March 21, 2005)
(describing process by which Canada seeks assurances), available at http://www.parl.
gc.ca/38/1/parlbus/commbus/senate/com-e/anti-e/06eva-e.htm?Language=E&Parl=38&Ses
=1&comm_id=597.
333 IRPA, § 49.
334 Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3.
335 Suresh, 1. Canada did not designate the LTTE as a terrorist group until 2006. http://www.
cbc.ca/story/canada/national/2006/04/10/tamils-terror-designation.html.
336 Immigration Act 1985, § 53(1)(b).
337 Suresh, 15.
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338 Id. 16.
339 Id. 130. The lowest federal court concluded that Suresh had not made out the case that
there were substantial grounds to believe that he was in danger of being tortured, and that
his expulsion would not “shock the conscience” of Canadians, which is the test for whether
something is unconstitutional under section 7 of the Charter. 18. The court of appeals
held that the right under international law to be free from torture was limited by a state’s
right to expel those who pose a security risk. 20-21 (holding that a violation of § 7 of the
Charter (guaranteeing the life, liberty, and security of a person) is justified under § 1 of the
Charter (guaranteeing rights and freedoms subject only to such reasonable limits as can be
demonstrably justified). Compare the Joint Observations in Ramzy (arguing for a requirement
that an individual who poses a high danger to a country show to a greater level of
proof that he would likely face torture if removed).
340 Suresh, 29 and 39.
341 Id. 31. The Court noted that a member of the House of Lords had suggested that elected
officials, rather than judges, should make the decisions about whether support for terrorist
activities in a foreign country constitutes a threat to national security. “It is also that such
decisions, with serious potential results for the community, require a legitimacy which can
be conferred only by entrusting them to persons responsible to the community through the
democratic process.” Id. 33. The proponents of judicial review of assurances in the United
States make the opposite argument: that getting courts involved will add legitimacy to the
(currently all-Executive) process.
342 Suresh, 39 (recognizing that such factors are “largely outside the realm of expertise of
reviewing courts”).
343 Id. 39, 41.
344 Id. 34, 39.
345 Id. 32.
346 Canadian Charter, § 7.
347 Suresh, 49 and 76.
348 Id. 58 and 71. It is not clear how Canada would square such a deportation with its international
obligations under the CAT.
349 Id. 116, 121.
350 Id. 122.
351 Id.
352 Id. 123.
353 Id. 126.
354 Mahjoub v. Canada, 2005 F.C. 156 (Jan. 31, 2005), available at http://reports.fja.gc.ca/en/
2005/2005fc156/2005fc156.html. See also Jaballah (Re) (2006) F.C., 148 C.R.R. (2d) 1, 2006
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F.C. 1230 (concluding that individual who played personal role in East Africa bombings and
was in close contact, communication, and association with leadership of Egypt al Jihad did
not pose extraordinary threat to Canada of type that would permit Canada to deport him to
face torture under the Suresh exception), available at http://decisions.fct-cf.gc.ca/en/2006/
2006fc1230/2006fc1230.html.
355 While Mahjoub’s proceedings were pending, the Canadian Supreme Court struck down
Canada’s law permitting indefinite detention of terrorist suspects but stayed its decision for
a year to permit Canada’s Parliament to develop a similar law that would pass constitutional
muster. Charkaoui v. Canada (Citizenship & Immigration), [2007] 1 S.C.R. 350, available at
http://csc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.html.
356 Mahjoub, 31-33.
357 Id. 64.
358 Mahjoub v. Canada, 2006 F.C. 1503, available at http://reports.fja.gc.ca/en/2006/2006fc1503/
2006fc1503.html.
359 In Mahjoub v. Canada (Feb. 15, 2007), the Federal Court ordered the government to release
Mr. Mahjoub, the subject of a security certificate, from indefinite detention and instead
place him under house arrest. http://decisions.fct-cf.gc.ca/en/2007/2007fc171/2007fc171.
html. See also Elizabeth Liu, “Federal Court Releases Terror Suspect Mahjoub,” Univ. of
Alberta Center for Constitutional Studies, available at http://www.law.ualberta.ca/centres/
ccs/Current-Constitutional-Issues/Federal-Court-Releases-Terror-Suspect-Mahjoub.php.
360 CTV.ca, “Terror suspect released after seven years in jail,” April 13, 2007, available at http://
www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070413/terror_suspect_070413?s_
name=&no_ads=.
361 Lai Cheong Sing v. Minister of Citizenship & Immigration, 2007 FC 361 (April 5, 2007), 34,
38, available at http://decisions.fct-cf.gc.ca/en/2007/2007fc361/2007fc361.html.
362 Id. 90.
363 Id. 41.
364 Id. 108.
365 Id. 142.
366 Id.
367 Suresh, 39.
368 Rod Mickleburgh, “Risk of torture has Ottawa reconsidering move to deport Chinese fugitive,”
Globe & Mail, Sept. 19, 2007, available at http://www.theglobeandmail.com/servlet/
Page/document/v5/content/subscribe?user_URL=http://www.theglobeandmail.com%2Fser
vlet%2Fstory%2FLAC.20070919.BCLAI19%2FTPStory%2FNational&ord=15506264&bran
d=theglobeandmail&force_login=true.
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369 Mamatkulov & Askarov v. Turkey, Applications nos. 46827/99 and 46951/99, Judgment, 4
February 2005, E. Ct. H. R. Grand Chamber. For a similar case, see Shamayev & Others v.
Georgia & Russia, application no. 36378/02, E. Ct. H. R. (April 12, 2005).
370 Mamatkulov, 28.
371 Interestingly, the Government of Turkey in its submissions took on the question of how long
a transferring state’s obligations attach after transfer. Turkey argued, “Article 3 was not to be
construed in a way that would engage the extraditing State’s responsibility indefinitely. The
State’s responsibility should end once the extradited person had been found guilty and had
started to serve his or her sentence. It would be straining the language of Article 3 intolerably
to hold that by surrendering a suspect in accordance with the terms of extradition agreements,
the extraditing State had subjected him to the treatment or punishment he received
after his conviction and sentence in the receiving State.” Mamatkulov, 64.
372 Id. 76-77.
373 Id. 69.
374 HRW, Letter to the Swiss Government Regarding Diplomatic Assurances and Pending Extradition
Cases, Dec. 14, 2006, available at http://www.hrw.org/backgrounder/eca/switzerland1206/index.htm
(Switzerland; reporting that the Swiss government had sought
assurances from the Turkish government); Still at Risk (Austria; court upheld the extradition);
Amnesty International – Slovakia: Further Information on UA 320/07 (Slovakia;
court upheld the extradition), available at http://www.amnesty.org/en/library/asset/EUR72/001/2008/en/EUR720012008en.html;
Empty Promises (Germany; court
upheld extradition); see also “German Minister Pursues ‘Caliph of Cologne’ Extradition
in Turkey,” Deutche Welle (Sept. 16, 2003), available at http://www.dw-world.de/dw/article/0,,972238,00.html;
HRW, Cases Involving Diplomatic Assurances Against Torture:
Developments Since May 2005, available at http://www.hrw.org/backgrounder/eca/eu0107/
eu0107web.pdf.
375 HRW, Letter to Dutch Ministry of Justice about Nuriye Kesbir, May 24, 2004 (“In its May 7,
2004 decision—holding that there were no obstacles to Ms. Kesbir’s extradition—the Dutch
Supreme Court acknowledged that human rights violations occur in Turkey and advised the
Dutch government to seek guarantees from Turkish authorities that Ms. Kesbir would not
be treated in violation of Turkey’s human rights obligations, and that she would be granted
a fair trial upon return.”), available at http://hrw.org/english/docs/2004/05/24/turkey10316.
htm.
376 Still at Risk, p. 23.
377 Id.
378 Id.
379 “Turkey Slams Dutch Refusal to Extradite PKK Leader,” AFP, Sept. 17, 2006, available at
http://www.institutkurde.org/en/afp/archives/060917154123.1jku1bo0.html.
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Endnotes
380 Amnesty International, Detainees transferred to torture: ISAF Complicity? (Nov. 13, 2007) 12
[hereinafter, Amnesty ISAF Report], available at http://www.amnesty.org/en/library/asset/
ASA11/011/2007/en/dom-ASA110112007en.pdf.
381 Amnesty ISAF Report, p. 12.
382 Id. (explaining certain state-specific exceptions).
383 Canada has concluded two bilateral memoranda of understanding, at least one exchange of
letters, and a multilateral arrangement related to detainee transfers. See http://www.forces.
gc.ca/site/operations/archer/Afghanistan_Detainee_Arrangement_e.pdf (December 2005
arrangement); http://www.canada-afghanistan.gc.ca/cip-pic/afghanistan/pdf/agreement_
detainees_030507.pdf (May 2007 MOU); http://www.forces.gc.ca/site/afghanistan/files/
AIHC_letter_e.pdf and http://www.forces.gc.ca/site/afghanistan/files/AIHRC_response_
e.pdf (exchange of letters between a Canadian ISAF commander and AIHRC); and http://
canada-afghanistan.gc.ca/cip-pic/afghanistan/library/docs-en.asp (multilateral arrangement
expanding access). See also http://www.canada-afghanistan.gc.ca/cip-pic/afghanistan/pdf/
NSA_replyletter_06dec07.pdf (circumscribing the facilities in which Afghanistan will hold
Canada’s transferred detainees).
384 http://www.forces.gc.ca/site/operations/archer/Afghanistan_Detainee_Arrangement_e.pdf.
385 www.afghanistan.gc.ca/canada-afghanistan/assets/pdfs/agreement_detainees_030507.pdf.
386 Id.
387 Amnesty Int’l Canada v. Att’y Gen. of Canada, 2008 FC 336 (March 12, 2008), available at
http://decisions.fct-cf.gc.ca/en/2008/2008fc336/2008fc336.html.
388 Notice of Appeal by Amnesty International Canada (April 1, 2008), available at http://www.
amnesty.ca/amnestynews/upload/CanadaFederalCourtAppeal(AIBCCLA).pdf.
389 Even though the Europeans face a higher legal standard – no transfers to face inhuman or
degrading treatment – that issue has not been a major factor in litigation.
390 Response of the Secretary of State for Foreign and Commonwealth Affairs to the HCFAC’s
Annual Report on Human Rights 2006, available at http://www.fco.gov.uk/Files/kfile/
CM%207127.pdf, 47 (explaining why the UK cannot make the arrangement public).
391 The Abu Qatada and Y SIAC decisions are over 100 pages long each.
392 For instance, if the ECtHR in Ramzy had agreed with the UK position, the UK presumably
would have changed its domestic law to permit the executive branch and SIAC to engage
in a balancing test; because the court did not agree, the UK is precluded from making that
desired change in its law.
393 See, e.g., Chahal, 151 and 154 (requiring independent scrutiny of assessment of “real
risk” and implying that transferee should be entitled to legal representation and to see the
grounds for his deportation).
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Endnotes
394 For example, in 1998 Canada led negotiations to ban landmines, which resulted in the Ottawa
Treaty. In Afghanistan, the German government has fashioned its troop contributions
as engaged in peacekeeping, rather than armed conflict against the Taliban. The Canadian
decision in Suresh offers a counter-example, though.
395 Glucksman v. Henkel, 221 U.S. 508 (1911).
396 Robert Kagan, Of Paradise and Power 3 (2003).
397 The UK example undercuts this argument, at least in part. The UK is engaged in robust
counter-terrorism activity that has made it unpopular overseas; has detained several very
dangerous individuals within the UK; and yet has been able to obtain expansive assurances
with countries with which it requires counter-terrorism cooperation, such as Algeria and
Jordan.
398 See Boumediene, 128 S. Ct. at 2271 (“The DTA does not explicitly empower the Court of
Appeals to order the applicant in a DTA review proceeding released . . . . This is troubling.
Yet, for present purposes, we can assume congressional silence permits a constitutionally required
remedy. In that case it would be possible to hold that a remedy of release is impliedly
provided for.”).
399 One argument is that extradition by definition involves direct diplomatic relations with
another government, where bilateral treaties establish the rules for extradition and extradition
decisions often have direct political implications. The counter-argument is that immigration
cases also have a bilateral diplomatic component: the transferring state usually must
engage in discussions with another country that will receive the individual being removed,
and a decision by a transferring state’s court that the receiving country is more likely than
not to torture a person has political implications as well.
400 Suresh, 39; see also Munaf, 128 S. Ct. at 2226 (noting that the “Judiciary is not suited to
second-guess such determinations—determinations that would require federal courts to
pass judgment on foreign justice systems . . . . [T]he political branches are well situated to
consider sensitive foreign policy issues, such as whether there is a serious prospect of torture
at the hands of an ally, and what to do about it if there is”). A concurrence in the recent
Saadi decision illustrates how these issues can lead judges into making purely political assertions.
Judges Myjer and Zagrebelsky argued that “States are not allowed to combat international
terrorism at all costs. They must not resort to methods which undermine the very
values they seek to protect. . . . There is nothing more counterproductive than to fight fire
with fire, to give terrorists the perfect pretext for martyrdom and for accusing democracies
of using double standards.” Saadi, Concurring Opinion at 52.
401 8 U.S.C. § 1189.
402 One exception is the State Department’s designation of a group called the People’s Mojahedin
of Iran, which has resulted in multiple cases. See People’s Mojahedin of Iran v. Secretary
of State, 327 F.3d 1238, 1239 (D.C. Cir. 2003) (describing litigation history).
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ASIL Discussion Paper
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Author:
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Endnotes
403 The DTA provides an example of this. The MCA, on the other hand, provides clear language
limiting judicial review, but ran into a constitutional challenge.
404 Because the Court in Boumediene concluded that Guantanamo detainees have at least
limited constitutional rights, the law may need expressly to include right of the transferee to
present information in support of his claim, as the D.C. Circuit permitted one U.S.-linked
FTO to do. PMOI v. State, 327 F.3d 1238, 1240 (D.C. Cir. 2003).
405 In the extradition context, this would occur after the Secretary of State decided to extradite
someone. In the removal context, an immigration judge, the BIA, and U.S. courts of appeals
already review CAT claims when assurances are not in play. That review should remain
unaffected. When assurances enter into play, Congress and the Executive might consider
permitting the courts of appeals to review the package in the first instance, using a more
deferential standard of review than the existing “substantial evidence” standard.
406 See, e.g., 18 U.S.C. § 3771(d)(3) (“The rights described in subsection (a) shall be asserted in
the district court in which a defendant is being prosecuted for the crime . . . . The district
court shall take up and decide any motion asserting a victim’s right forthwith. If the district
court denies the relief sought, the movant may petition the court of appeals for a writ of
mandamus. The court of appeals may issue the writ on the order of a single judge pursuant
to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up
and decide such application forthwith within 72 hours after the petition has been filed.”).
407 The relevant provision of the Bipartisan Campaign Reform Act, § 403(a)(4), states, “It shall
be the duty of the United States District Court for the District of Columbia and the Supreme
Court of the United States to advance on the docket and to expedite to the greatest possible
extent the disposition of the action and appeal.” P.L. 107-155.
408 As noted above, this Article does not purport to address the use of diplomatic assurances in
the rendition context, and this proposal would not apply to renditions.
409 Rep. Skelton’s bill, H.R. 2826, usefully carves out habeas rights of individuals held in zones
of active combat. In the wake of Munaf, Congress and the Executive should create a carveout
to this bar for U.S. citizens.
410 For a more extensive list of recommendations for changes to Executive Branch practice in
this area, see Ashley S. Deeks, Avoiding Transfers to Torture, Council Special Report No. 35,
Council on Foreign Relations (June 2008), available at http://www.cfr.org/content/publications/attachments/Assurances_CSR35.pdf.
411 In June, 2008, the Legal Adviser for the Department of State testified before the House
Committee on Foreign Affairs about the U.S. government’s use of diplomatic assurances.
This type of public discussion about assurances is useful in clarifying U.S. policy and dispelling
certain myths about the process. A transcript of the testimony is available at http://
www.internationalrelations.house.gov/110/bel061008.htm
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