Implementing the U.N. Torture Convention in U.S. extradition cases.

• Author: Cohen, William M.

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention)(3) entered into force in the United States on November 20, 1994. Article 3.1 of the Torture Convention provides that:

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.(4)

The U.S. Senate's Resolution of Advice and Consent to ratification of the Torture Convention included the "understanding" that the term "substantial grounds for believing" in Article 3 means "more likely than not that he would be tortured."(5)

"Torture" is defined by Article 1 of the Torture Convention to mean:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any king, when pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.(6) Article 3.2 of the Torture Convention further sets forth the scope of the inquiry by the "competent authorities" necessary to determine whether an individual is likely to be tortured if he or she is extradited to the demanding country:

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)

All of the elements necessary to assert and adjudicate a claim under Article 3 are spelled out explicitly in the Torture Convention: the mandatory prohibition on extradition of someone likely be tortured in the demanding country, the standard of proof to establish such a claim, the definition of torture, and the scope of the inquiry. Nothing else is required by way of legislation to flesh out the requirements for asserting rights under Article 3.

In contrast, several other articles of the Torture Convention, either expressly or by implication, require each State Party to the convention to take effective legislative, administrative, judicial or other measures to prevent and to punish torture in any territory under its jurisdiction. Such measures include provisions for criminal liability and for civil redress and compensation for torture victims.(8)

Article 3, on the other hand, does not appear to require any implementing legislative or administrative action to effectuate its provisions. Instead, in mandatory terms, Article 3 absolutely prohibits the United States, as a State Party to the convention, from extraditing any person to another country "where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Although there is no statute or published regulation implementing the United States' obligation under Article 3 in the extradition context, the Secretary of State has adopted procedures for evaluating an alleged fugitive's claim that he or she would be tortured by the country seeking his or her extradition.(9) By assuming this responsibility, the Secretary of State has effectively implemented Article 3 in extradition cases. No additional administrative or legislative act is necessary since the United States government, in seeking ratification of the Torture Convention recognized that Article 3 is binding as a limitation on the United States' authority to extradite without the necessity of implementing legislation or regulations.(10)

Nevertheless, the United States maintains that the Secretary's procedures are the exclusive remedy available to fugitives to prevent their being surrendered to a country where they are likely to be tortured. The government asserts this exclusive authority pursuant to the Secretary of State's statutory authority to actually extradite fugitives,(11) and under the "rule of non-inquiry" adopted by federal courts, which precludes judicial inquiry in most extradition cases into the human rights practices of U.S. extradition treaty partners.(12)

However, these traditional extradition statutes and rules pre-date the entry into effect in the United States of Article 3 of the Torture Convention. This paper will explore whether Article 3's mandatory prohibition against the extradition of any persons to another country where they are likely to be tortured modifies the judicial rule of noninquiry, thereby affording some measure of judicial review of the Secretary of State's heretofore near exclusive authority to decide whether to extradite someone facing such severe human rights violations.

U.S. EXTRADITION AUTHORITY IS SOLELY A CREATURE OF STATUTE AND TREATY. ARTICLE 3 MODIFIES AND LIMITS THAT EXTRADITION AUTHORITY.

Under U.S. law, absent a statute or treaty, the United States government lacks authority and any duty to surrender any person on its territory to a foreign country for purpose of prosecution for an alleged criminal offense.(13) Indeed, the Supreme Court has held that the Constitution forbids U.S. officials from surrendering a fugitive to a foreign government for criminal prosecution absent statutory authority or a treaty obligation to do so.(14) As stated in Valentine v. United States ex rel. Neidecker:

[T]he Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law. It necessarily follows that as the legal authority does not exist save as it is given by act of Congress or by the terms of a treaty, it is not enough that statute or treaty does not deny the power to surrender. It must be found that statute or treaty confers the power.(15) A fortiori, a treaty provision, such as Article 3, which prohibits extradition under certain circumstances clearly stays the government's authority to act otherwise.

Current U.S. extradition statutes authorize extradition only pursuant to extradition treaties.(16) Federal magistrate judges currently determine whether the requirements of the particular treaty have been met and so certify those facts to the Secretary of State, who is empowered, in her discretion, to deliver the accused to the agents of the requesting country for trial of the offense charged. The legality of the magistrate judge's certification of extraditability, but generally not the Secretary of State's decision to extradite, is judicially reviewable only by writ of habeas corpus.(17)

Under the Supremacy Clause of the Constitution,(18) all treaties are the "Supreme Law of the Land," on a par with statutes. In particular, extradition treaties are self-executing; they require no implementing legislation to be binding as law.(19) Also, an extradition treaty and general extradition statutes can be modified by a subsequent treaty, such as the Torture Convention, which creates or limits authority to extradite and which is inconsistent with existing authority.(20)

Therefore, pursuant to Article 3, all existing extradition treaties must now be considered to contain a limitation prohibiting the extradition by the United States of any person facing the likelihood of being tortured. As so incorporated into these extradition treaties, Article 3 should also be considered self-executing and enforceable by the individual fugitives who assert that they will be subject to torture if rendered over to the requesting States.

Moreover, any future bilateral extradition treaties, absent Congressional legislation or express treaty language abrogating the Torture Convention's prohibition on extraditing fugitives likely to be tortured, should also be construed as incorporating the terms of Article 3.(21)

The Secretary of State recognizes this limitation on her powers.(22) The issue remains whether the Secretary's decision to extradite a person seeking to enforce an Article 3 claim under the Torture Convention is judicially reviewable.

Who Decides Whether an Article 3 Prohibition Applies?

Article 3 is silent on the question of who should make the determination of whether there are substantial grounds for believing that a particular fugitive would be in danger of being subjected to torture if delivered for prosecution to the requesting country.(23) Normally the Secretary does not consider the exercise of her authority to extradite until after a federal magistrate judge has certified the fugitive's eligibility for extradition under the applicable treaty, and, where sought, that certification has been tested in the courts in a habeas corpus proceeding.(24)

However, no statutory or treaty provision exists restricting the jurisdiction of the federal courts from considering an Article 3 claim, either prior or subsequent to the Secretary's review of such a claim.

Not surprisingly, the Secretary of State has asserted that "the obligation imposed by the [Torture] Convention with regard to extradition is vested with [her] as the United States official with ultimate responsibility for determining whether a fugitive will be extradited."(25) However, the legislative history of the Senate ratification of the Torture Convention does not support an interpretation which would reserve to the Secretary of State the exclusive role in determining the fate of fugitives who allege they are likely to be tortured in a requesting country.

In a letter dated May 20, 1988, transmitting the Torture Convention to the Senate for its "advice and consent," President Reagan recommended ratification subject to "certain reservations, understandings, and...