Reviewing Extraditions to Torture.

AuthorBaronia, Nitisha

In 1990, the United States ratified the Convention Against Torture (CAT), codifying a global commitment to refrain from transferring any person to a country where she may face torture. While the United States has steadfastly implemented the convention's prohibition on deportations that result in foreign torture, American courts have failed to enforce CAT in cases involving international extradition, in which the United States transfers an American to a foreign country for criminal prosecution. In these cases, the Secretary of State alone decides, subject to little or no judicial review, whether the foreign country is likely to torture the American.

This Note assesses the three-way split that has developed across American courts in the thirty-one years since the United States signed CAT. It asks whether, how, and when courts should review the Secretary's decision to extradite an individual who claims the extradition would violate the convention. In doing so, this Note identifies two concerning government practices it terms extradition shopping and extradition shuffling. It also connects habeas review in extradition to the immigration context, arguing that the Supreme Court's recent interpretations of the habeas writ in Department of Homeland Security v. Thuraissigiam and Nasrallah v. Barr may bolster the case for substantive habeas review of extradition claims. It concludes that habeas courts can, and should, review extradition decisions for compliance with CAT, offering a three-pronged theory of habeas jurisdiction rooted in the common law writ of habeas, in extradition statutes, and in CAT itself.

Table of Contents Introduction I. Extradition and Torture A. An Overview of the American Extradition Process B. Historical Understandings of the Judicial Role in Extraditions C. Implementing the Convention Against Torture D. The Relator's Dilemma 1. Extradition shopping 2. Extradition shuffling II. Competing Interpretations of the Role of Courts A. The Procedural Right B. The Substantive Right C. Denial and Deference III. A Path to Meaningful Habeas Review A. The Supreme Court's Habeas Jurisprudence 1. The military-detainee cases: Boumediene and Munaf 2. The immigration cases: Nasrallah and Thuraissigiam B. The Case for Substantive Habeas Review 1. Thuraissigiam and the common law case for habeas review 2. The statutory case for habeas review 3. The treaty-based case for habeas review 4. Addressing concerns of judicial overreach C. An Unconstitutional Suspension D. Harmonizing Habeas 1. Harmonizing shopping 2. Harmonizing shuffling E. Reforming Review Conclusion Introduction

In 1994, Rwandan pastor Elizaphan Ntakirutimana received a letter from a group of Tutsi pastors reading, "[w]e wish to inform you that tomorrow we will be killed with our families." (1) Instead of sheltering the pastors, Ntakirutimana summoned Hutu militants to kill them in one of the worst massacres of the Rwandan genocide. (2) Then Ntakirutimana fled to Texas. (3) The United States then extradited Ntakirutimana to the International Criminal Tribunal for Rwanda (International Tribunal). (4)

In 2008, Lithuanian judge Neringa Venckiene discovered that Lithuanian government officials had sexually abused her niece. (5) After she publicized her niece's story, the Lithuanian government retaliated against Venckiene, filing criminal charges against her, revoking her judicial and parliamentary immunity, and seizing her niece in a violent exchange. (6) Venckiene fled to the United States, which extradited her to Lithuania. (7)

In the 1980s, Kulvir Singh Barapind became an active leader in a Sikh separatist student group in India, leading protests in the midst of widespread political unrest and violent government counterinsurgency efforts. (8) Facing police harassment and fearing political persecution, Barapind fled to the United States, which extradited him to India. (9)

Under well-established immigration law, noncitizens like Ntakirutimana, Venckiene, and Barapind can invoke the Convention Against Torture (CAT) (10) to avoid deportation. (11) The torture determinations that courts make in those immigration proceedings are well-defined. But in extradition proceedings, individuals seeking to remain in the United States for fear they will be tortured abroad face an uphill battle. Extradition raises complex questions of international law and foreign policy, and courts have struggled to determine whether, how, and when to hear claims under CAT. (12) As a result, courts often decline to review CAT claims altogether, leaving the Secretary of State free to extradite individuals to countries that may torture them, with little to no judicial oversight of that decision. (13)

The stakes are high for both the individual and the U.S. government. In the immigration context, an individual seeking to avoid deportation may claim that the foreign government is likely to torture her based primarily on her past experiences in that country. (14) But individuals facing extradition often find themselves in a more precarious situation: The foreign country has summoned them for criminal prosecution. In addition to any past experiences that may have led them to flee the foreign country, these individuals will often point to the future torture they expect to undergo as a consequence of that country's criminal proceedings.

Extradition requests place American government actors, too, in a difficult position. Each request asks the government to transfer a person in the United States to the legal protection of a foreign criminal-justice system subject to foreign legal standards. Each request also implicates unique diplomatic and political considerations. Some, like the International Tribunal's request for Ntakirutimana, concern sensational and tragic atrocities, requiring governments to collaborate on highly visible global investigations. (15) Others, like Lithuania's request to extradite Venckiene, may implicate the requesting country's acrimonious internal politics. (16) Still others, like India's request to extradite Barapind, require evaluating complex webs of foreign evidence. (17) Extradition implicates due process and diplomacy.

While an individual's fear of torture upon extradition may sometimes lack support, that fear is often well-founded. For example, Ntakirutimana was lawfully tried and sentenced by the International Tribunal, (18) the kind of multilateral judicial body unlikely to violate international law. But Venckiene's fate remains uncertain--she has maintained her innocence and continues to face serious charges under an expired statute of limitations and despite American legislators' efforts to advocate on her behalf. (19) Barapind's story is even more tragic: Despite the Indian government's assurance that it would not torture him, and despite a court in India acquitting Barapind of all charges and releasing him, the Punjab police subsequently arrested Barapind and subjected him to beatings, electric shocks, and other forms of prolonged torture. (20) His is a story that CAT was designed to prevent.

This Note proposes that when reviewing challenges to extradition orders, habeas courts can and should consider claims that extradition of the alleged fugitive, or "relator," (21) would violate CAT. Part I presents an overview of modern extradition law and the questions that it leaves unanswered. It unpacks the relator's predicament and identifies two government practices--which this Note terms extradition shopping and extradition shuffling--that scholars and courts have often overlooked but may strengthen the case for substantive habeas review of the Secretary of State's extradition determinations. By extradition shopping, the U.S. government can repeatedly file new extradition-certification requests until one is granted. By extradition shuffling, it can freeze a relator's ongoing immigration proceedings to kick her into the more procedurally limited extradition process. Both practices undermine the procedural safeguards of due process and highlight the need for meaningful habeas relief in extradition cases.

Part II enumerates the competing approaches that courts have taken when addressing torture claims in the extradition context. Part III then applies habeas case law to examine whether and how habeas courts should review CAT challenges to the Secretary's extradition decisions. Part III.A first considers the Supreme Court's recent habeas jurisprudence, including the Court's June 2020 opinions in Nasrallah v. Barr and Department of Homeland Security v. Thuraissigiam. Parts III.B and III.C then argue that, in light of these recent decisions, habeas courts have jurisdiction based on common law, statutory, and treaty authority to meaningfully entertain claims that extradition would result in torture. Part III.D explains how meaningful habeas review could harmonize judicial review of CAT claims in the extradition and immigration contexts, mitigating extradition shopping and shuffling--particularly for noncitizens undergoing parallel proceedings. Part III.E concludes by identifying some troubling government practices that strengthen the case for meaningful habeas review and call for broader statutory and regulatory reform.

  1. Extradition and Torture

    This Part offers an overview of fear of torture as a defense to extradition. Subpart A begins with an overview of the legal basis for extradition and walks through the American extradition process, from a foreign nation's initial extradition request through judicial review and the Secretary's ultimate extradition determination. Subpart B illustrates with a historical example the separation-of-powers dispute that arises when a relator challenges her extradition. Subpart C introduces CAT and its implementing statutes, which formally prohibit extraditions that may lead to torture but leave unclear how and when courts may review alleged violations of this treaty commitment. Subpart D explains how the American extradition...

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