Munaf‘s impact widens again
Four years ago this week, a unanimous Supreme Court decided Munaf v. Geren. At the time, it looked like a one-of-a-kind ruling, limited to its special facts. But that’s not the way lower courts have read it. For them, it has become a major precedent for enhancing executive power, curtailing the power of the courts, and limiting the scope of the habeas writ.
That happened again on Friday as a widely splintered Ninth Circuit Court, in a new Munaf sequel, strictly limited judges’ authority to enforce a 1984 global treaty against torture and to rule on how federal officials interpret their duty under that treaty (the Convention Against Torture). The decision of the en banc Circuit Court in the case of Garcia v. Thomas (docket 09-56999) can be read here. (There are six separate opinions, totaling 110 pages.)
Just as the D.C. Circuit Court interpreted the Munaf precedent to warn federal judges not to second-guess government decisions about the ultimate legal fate of the detainees at Guantanamo Bay, the Ninth Circuit used that ruling to give the Secretary of State — with hardly any court review — the final say on when to send a foreign national to a country with a history of torturing those charged with crime.
The end result of the Garcia ruling is probably best measured as an 8-3 ruling, although the decision has so many facets that the judicial arithmetic is exceedingly complex. The court issued a four-page per curiam opinion to summarize what it had done, but the outcome is clear only from the five separate opinions explaining how the 11 judges lined up. While five judges would have thrown out the habeas plea, ultimately only three judges favored a more significant role for the court in deciding when a person may be extradited without violating the anti-torture treaty.
If the ruling withstands a possible appeal to the Supreme Court, Secretary of State Hillary Rodham Clinton will have the last word on whether a Philippine national, Hedelito Trinidad y Garcia, will be sent to that country for prosecution on a charge of kidnapping for ransom. The Ninth Circuit accepted evidence that five other men accused in the same case have been tortured by Philippine officials, and accepted a State Department report that torture is common among the security forces and police in that country.
Clinton’s predecessor, Condoleeza Rice, reviewed that evidence and then approved Trinidad y Garcia’s extradition in September 2008, but public defender lawyers in Los Angeles have been challenging that order in a federal habeas case since 2009.
His attorneys are relying upon the Convention Against Torture, a United Nations treaty adopted by 149 countries and in force in the U.S. since 1994. That treaty declares that no nation agreeing to the Convention may send a person to another country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” That treaty did not go into effect in the U.S. on its own, but it has been put into effect by a 1998 law, the Foreign Affairs Reform and Restructuring Act, and by State Department regulations.
The official regulations say that the Secretary of State, before approving extradition of an individual who is relying upon the treaty, must decide whether torture is “more likely than not” and cannot approve a transfer where torture appears likely.
In the Ninth Circuit case, lawyers for Trinidad y Garcia contended that it would violate his constitutional right of due process to send him to the Philippines because that would violate his treaty rights against the prospect of torture. A federal judge in California had agreed with that claim, and ordered him released from U.S. detention.
Overturning that result, the en banc Circuit Court reached nine separate conclusions. Among them, with only one judge dissenting, the court allowed Trinidad y Garcia to file his habeas claim. But all of the other conclusions divided the court more deeply.
The final conclusion, and this produced only three dissenting votes, was that Trinidad y Garcia has a right to have the Secretary of State consider the evidence and then decide whether the anti-torture standard has been met. But all that the Secretary would be required to do in response to the habeas challenge was to file a formal statement, signed by her or by a senior deputy, that she has done her legal duty, has considered the evidence and made a ruling. The federal judge has no authority to inquire in any way into whether the Secretary’s ruling was justified.
Once a formal paper is filed, “the court’s inquiry shall have reached its end,” the court’s summary order said. Trinidad y Garcia’s claim that it would violate his due process rights to extradite him in the face of the evidence of likely torture, the order said, “is foreclosed by Munaf v. Geren.” (In the Munaf decision on June 12, 2008, the Supreme Court had ruled unanimously that a federal judge had no power to block the U.S. military in Iraq from turning over to Iraqi authorities two U.S. citizens who had been accused of committing crimes in Iraq under that country’s laws. Munaf is not an extradition decision.)
The en banc Circuit Court also said that its decision was based in part on “the doctrine of separation of powers” and on a judicially created concept — the “rule of non-inquiry.” That “rule” has not been codified by Congress, but it bars any federal court from inquiring into what would happen in another country once an individual had been extradited to that country.
To make its ultimate point even more emphatically, the en banc Circuit Court overruled one of its own precedents that had left the impression that a federal judge could look into the substance of what the Secretary had decided in a given extradition case.
Along the way toward that ruling, the Circuit Court, by varying votes, made these other points:
** Garcia was free to file his habeas claim arguing that his CAT treaty rights would be violated by extradition.
** Federal laws and the “rule of non-inquiry” have not stripped courts of the power to hear such a habeas claim.
** The CAT treaty is binding law within the U.S.
** The treaty, federal law and State Department regulations require the Secretary to formally rule on whether extradition can go ahead, and there is no evidence that that task has yet been performed, so the Circuit Court could not yet rule on whether the Secretary had done her duty.
** The case must go back to the District Court, but it has power only to decide if the Secretary has done her duty by filing a formal declaration that she has.
Among the 11 judges, only Circuit Judge Susan P. Graber did not write or join any opinion and simply voted for the summary order. Chief Circuit Judge Alex Kozinski would have gone the furthest in favor of the State Department, arguing that Trinidad y Garcia had no right to pursue his habeas claim. Circuit Judges Marsha S. Berzon, William A. Fletcher and Harry Pregerson would have allowed the District judge to make some inquiry into whether a final order of extradition approved by the Secretary was justified under the treaty.
Circuit Judge Richard C. Tallman, joined by Circuit Judges Richard R. Clifton, Milan D. Smith and Sandra S. Ikuta, voted to allow Trinidad y Garcia to file his habeas petition, but then would have ordered it dismissed, arguing that the Secretary of State has already done all that the law requires and that a variety of legal sources bar any further proceeding against the Secretary.
Circuit Judges Sidney R. Thomas and Kim McLane Wardlaw went along with all of the summary order, but expressed their own views in a separate opinion written by Judge Thomas (and joined only in part by Judge Berzon.)
Now that the en banc court has ruled, either Trinidad y Garcia or the State Department has the option of seeking to take the case on to the Supreme Court. The State Department had told the Circuit Court that, if Secretary Clinton is ordered to file a formal paper saying she has done her duty, she will do so. But the Department had wanted to block Trinidad y Garcia’s habeas claim altogether. Trinidad y Garcia appears to have the most to lose if the Circuit Court ruling stands.
Three of the Supreme Court Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — have said previously that they believed there were issues the Court should consider about the meaning of the Munaf v. Geren precedent, at least in the context of transfers of detainees out of Guantanamo Bay when a prisoner fears torture or mistreatment in the country involved.
Recommended Citation: Lyle Denniston, Munaf‘s impact widens again, SCOTUSblog (Jun. 10, 2012, 8:18 AM), http://www.scotusblog.com/2012/06/munafs-impact-widens-again/