Munaf sequel on way to Court
on Jul 9, 2012 at 11:40 pm
A Philippine national who fears he will be tortured if he is returned to his home country will be asking the Supreme Court this summer to hear his challenge — a case that would put before the Justices a major test of what they meant in the unanimous decision in Munaf v. Geren four years ago. The Ninth Circuit Court has blocked his transfer for 90 days to allow his lawyers to file at the Supreme Court; the lawyers’ plea for that delay can be read here. (A post last month discussing this case can be read here.)
The case involves Hedelito Trinidad y Garcia, who has been charged in the Philippines with kidnapping for ransom. His lawyers submitted evidence to the Ninth Circuit when his extradition was under review that five other men accused in the same criminal case have been tortured by Philippine officials. The Circuit Court also accepted a State Department report asserting that torture is common among the security forces and police in that country. His attorneys are relying upon a 1984 treaty, the Convention Against Torture, that has been in force in the U.S. since 1994.
While the Circuit Court has allowed Trinidad y Garcia’s attorneys to put before Secretary of State Hillary Clinton their best case for barring his extradition under that treaty, the decision actually leaves Clinton almost complete discretion to turn down the plea. All she needs to do is to file with a District Court judge a formal paper saying that she has done her legal duty to weigh his claim, that she has considered his evidence, and that she had made a ruling. Justice Department attorneys told the Circuit Court that Clinton would do just that when the case got back to her. Under the Circuit Court ruling, the federal judge has no authority to inquire in any way into whether the Secretary’s decision was justified or satisfied the anti-torture treaty. That is the conclusion that his attorneys will be challenging in their forthcoming plea to the Supreme Court.
The Circuit Court decision is based in large part on the 2008 Munaf decision, which was not an extradition case, as such. Rather, it involved a request by the government of Iraq to turn over to its custody, for criminal prosecution, two U.S. citizens who were being held by the U.S. military in Iraq. They had been accused of violating Iraq’s criminal laws and were wanted for trial there. The Supreme Court concluded that, while a U.S. court had the authority to hear the challenge by the two citizens to being handed over, an American judge had no authority to second-guess the validity of Iraq’s planned prosecution.
The Supreme Court decided the Munaf case on the same day in June 2008 that it decided the more famous case of Boumediene v. Bush, giving detainees at Guantanamo Bay a constitutional right to challenge their captivity in a U.S. habeas court. That decision far overshadowed Munaf when the two rulings came out. Since then, however, Munaf has turned out to have more staying power, and, in fact, a considerable capacity to expand in scope. It has been used to bar habeas judges from second-guessing U.S. decisions on when a detainee may leave Guantanamo, and now, in the Trinidad y Garcia case, to bar a federal judge from second-guessing the Secretary of State’s rulings on when to allow an accused non-citizen to be sent home even in the face of a claim of potential torture. In the meantime, the D.C. Circuit Court has taken away much of the meaning of Boumediene, leaving federal habeas judges with only a kind of advisory role to the Executive Branch on when a detainee at Guantanamo is being lawfully held, and with no power to order directly that a detainee be released in the face of Executive Branch objection.
In the Philippine extradition case, former Secretary of State Condoleezza Rice had ordered his return for prosecution, but a federal District judge ruled that a transfer would violate his rights under the anti-torture treaty, and ordered him released. The Ninth Circuit initially agreed in a three-judge panel decision, but then the en banc Circuit Court, dividing 8-3, overturned the release order, and directed that the case go to Clinton, the current Secretary, for final action.
In asking the Ninth Circuit for a stay, Trinidad y Garcia’s attorneys argued that his case “involves critical issues regarding the ability of a person facing torture to obtain meaningful judicial review.” They added that the Circuit Court ruling “addresses separation of powers concerns and the availability of ‘the Great Writ’ and undoubtedly presents an important question of federal law.”
The stay motion also noted that three Supreme Court Justices, in a dissent in a Guantanamo transfer case involving a detainee who had a fear of being tortured if sent abroad, that such a dispute raised “important questions” about what the Munaf precedent meant for habeas corpus law, issues that the Supreme Court had not resolved in Munaf itself. Those three were Justice Ruth Bader Ginsburg, who was joined in dissent by Justices Stephen G. Breyer and Sonia Sotomayor.
