Why the “Munaf Sequels” Matter: A Primer on FARRA, REAL ID, and the Role of the Courts in Transfer/Extradition Cases
Yesterday’s news out of the Supreme Court may well have obscured another significant detainee-related legal development: As Lyle Denniston has noted over at SCOTUSblog, on Friday, the en banc Ninth Circuit handed down a thoroughly fractured decision in Garcia v. Thomas, a complicated extradition-related habeas case raising the question whether courts may inquire into Executive Branch assurances that an individual facing extradition will not be tortured or otherwise mistreated by the country to which his extradition is being sought. To make a (as we’ll see, very) long story short, the Court of Appeals held that, while the federal courts have jurisdiction to entertain such habeas claims, they may not provide relief so long as the Secretary of State complies with her statutory and regulatory obligations, i.e., she avers that it is not “more likely than not” that the detainee in question will be tortured subsequent to his transfer. In other words, merely by filing a piece of paper, the Executive Branch can make these cases go away, albeit on the merits.
In the process, the Ninth Circuit simultaneously (1) embraced the D.C. Circuit’s logic in “Kiyemba II,” which so held in the context of the Uighurs; (2) thereby compounded the Kiyemba II panel’s (in my view, egregious) misreading of the Supreme Court’s 2008 decision in Munaf v. Geren in applying it to an entirely ordinary extradition case; and (3) created a circuit split with a different D.C. Circuit opinion (“Omar II“), which had held that the REAL ID Act of 2005 divested the federal courts of jurisdiction in such cases. Even without trying to count the votes from the 110 pages worth of concurring and dissenting opinions in Garcia, I think it’s safe to say that the Ninth Circuit has only made a complicated legal issue that much murkier, and it may well be time for the Supreme Court to pay attention… Below the fold, I try to explain how the pieces all unfold (with my apologies in advance for the preposterous length; my hope is to bring some clarity to the complexity).
I. CAT and FARRA
What’s behind all of these cases is the U.N. Convention Against Torture (CAT), Article 3 of which 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.” There are no exceptions to Article 3’s “nonrefoulment” principle, and there is substantial authority for the proposition that nonrefoulment is itself a “jus cogens” norm of customary international law. Regardless, although the United States has taken the position that CAT is non-self-executing, we implemented most of our obligations under CAT (including Article 3’s “nonrefoulment” mandate) through the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which provides that “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.”
Although there is therefore no question that non-citizens in removal proceedings may invoke FARRA/CAT defensively as a basis for relief from deportation, the harder question is whether FARRA may be enforced offensively in civil litigation, especially habeas, by those who can’t raise a FARRA/CAT claim in a removal proceeding (including individuals facing extradition and military transfer, as opposed to deportation). This issue is complicated by section 2242(d) of FARRA, which provides that “nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, . . . except as part of the review of a final order of removal pursuant to [the immigration laws].”
Importantly, though, that FARRA doesn’t provide jurisdiction should not matter in habeas cases, since a different federal statute already confers power upon the federal courts in such cases so long as the petitioner claims detention “in violation of the Constitution or laws or treaties of the United States.” The question is whether FARRA takes away habeas jurisdiction over FARRA/CAT claims. And at least initially, every circuit court to reach the issue answered that question in the negative, holding that nothing in FARRA provided the kind of “clear statement” that the Supreme Court’s St. Cyr decision required to find that Congress meant to take away habeas jurisdiction. Thus, at least until 2005, it was settled that U.S. detainees facing transfer or extradition (or non-citizens facing removal who couldn’t pursue relief in immigration proceedings) could raise FARRA/CAT as a basis for habeas relief, and numerous litigants did so.
II. The REAL ID Act of 2005
As part of the judicial review provisions of the REAL ID Act of 2005, the purpose of which was to streamline judicial review in immigration cases, Congress enacted new 8 U.S.C. § 1252(a)(4):
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e) of this section.
Because the point of REAL ID was to channel review of immigration claims into the direct review process, it is thoroughly unlikely that Congress thereby intended to take away all jurisdiction in cases in which such review was unavailable (e.g., detainee transfer and extradition cases). Put another way, it seems difficult to read a provision designed to deal only with immigration cases as also applying to claims that could never arise in deportation proceedings. Nevertheless, the categorical language of REAL ID does appear to satisfy St. Cyr’s “clear statement” requirement, and thereby raises a constitutional question about whether the Suspension Clause protects the ability of individuals facing transfer or extradition to challenge their transfer or extradition via habeas…
III. Munaf v. Geren
Ironically, that constitutional question went wholly unaddressed by the Supreme Court in its 2008 decision in Munaf v. Geren–which raised the substantive question of what, exactly, federal courts reviewed in cases in which an individual objected to their potential transfer based on torture. Writing for a unanimous Court, Chief Justice Roberts suggested that, although the Court clearly had jurisdiction over a claim brought by two U.S. citizens detained in Iraq, the merits were settled by the State Department’s assurance that the two detainees would not be tortured in Iraqi custody. As he explained,
Petitioners here allege only the possibility of mistreatment in a prison facility; this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway. . . . In these cases the United States explains that, although it remains concerned about torture among some sectors of the Iraqi Government, the State Department has determined that the Justice Ministry—the department that would have authority over Munaf and Omar—as well as its prison and detention facilities have “ ‘generally met internationally accepted standards for basic prisoner needs.’” . . .
The Judiciary is not suited to second-guess such determinations—determinations that would require federal courts to pass judgment on foreign justice systems and undermine the Government’s ability to speak with one voice in this area.
Although the Chief’s opinion thereby seemed to suggest that there was nothing for courts to do in such cases once the Executive Branch made the relevant assurance, there were two critical caveats: First, as he noted, “this is not a more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway.” (As Justice Souter noted in his concurrence, “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”). Second, the Court specifically sidestepped the possibility that FARRA might require relief in such cases notwithstanding the Executive Branch’s assurance. As the Chief explained, “Neither petitioner asserted a FARR Act claim in his petition for habeas, and the Act was not raised in any of the certiorari filings before this Court. . . . Under such circumstances we will not consider the question.” (In a footnote, the Chief raised two potential shortcomings with a FARRA claim in that case, but didn’t resolve either of them.) In other words, Munaf required deference to the Executive Branch, but did not address whether such deference could ever be overcome, whether in a case where the detainee’s claim arose under FARRA or otherwise.
IV. Kiyemba II
This is where we finally get to the Guantanamo litigation. In Kiyemba II, the Uighurs detained at Guantanamo filed suit seeking notice and a hearing before their transfer to a third-party country, in order to ensure an opportunity to contest that transfer on the ground that they credibly feared torture. A divided panel of the D.C. Circuit held that Munaf pretermitted such claims, in light of the government’s blanket (and not country-specific assurance) that it doesn’t transfer to torture. I’ve previously explained in some detail why, as Judge Griffith explained in his partial concurrence / partial dissent, this result simply doesn’t follow from Munaf, including that (1) unlike in Munaf, the government’s assurance didn’t address the conditions in a specific country; (2) Munaf didn’t deal with claims arising under FARRA; and (3) Munaf itself wasn’t categorical (as noted above), leaving open the possibility that the detainee might introduce evidence contradicting the government’s own conclusion.
For present purposes, the relevant point is that the D.C. Circuit’s rationale went to the merits: the misreading of Munaf aside, Judge Ginsburg’s logic was that the government’s assurances foreclosed relief, not that the courts were otherwise powerless to intervene. The D.C. Circuit declined to revisit that conclusion by a 6-3 vote, and the Supreme Court denied certiorari (although in a related case, Justice Ginsburg noted for herself and Justices Breyer and Sotomayor that they would have granted a stay of a detainee’s involuntary repatriation to Algeria “to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf.”
V. Omar II
Okay. So far, we’ve introduced the statutory background, Munaf, and the D.C. Circuit’s perversion thereof in Kiyemba II. In one sense, that’s all one needs to understand Friday’s decision in Garcia, because the heart of the en banc Ninth Circuit’s per curiam opinion is its agreement with Kiyemba II–the courts have jurisdiction, but once the Secretary of State makes the relevant promises, that’s the end of the matter. But earlier this summer, the D.C. Circuit went one significant step further, and here the Ninth Circuit has now created a circuit split:
In “Omar II,” which is the case of the other detainee in Munaf on remand from the Supreme Court, Judge Kavanaugh wrote for a divided panel (the same panel that decided Kiyemba II) that the REAL ID Act does in fact divest the federal courts of habeas jurisdiction over CAT/FARRA claims, and that, in the process, it does not violate the Suspension Clause. I won’t rehash here my detailed series of posts on why Omar II fails to persuade. For present purposes, the relevant point is that on this point, the Ninth Circuit has now created a circuit split. Here’s what the per curiam opinion in Garcia says:
Neither the REAL ID Act nor FARRA repeals all federal habeas jurisdiction over Trinidad y Garcia’s claims, as the government asserts. A statute must contain “a particularly clear statement” before it can be construed as intending to repeal habeas jurisdiction. Even if a sufficiently clear statement exists, courts must determine whether “an alternative interpretation of the statute is ‘fairly
possible’ ” before concluding that the law actually repealed habeas relief.
FARRA lacks sufficient clarity to survive the “particularly clear statement” requirement. The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction. Given a plausible alternative statutory construction, we cannot conclude
that the REAL ID Act actually repealed the remedy of habeas corpus.
Thus, Garcia does two very different things: (1) it endorses Kiyemba II‘s misreading of Munaf as categorically foreclosing on the merits CAT/FARRA claims in cases in which the Executive Branch promises that the detainee will not be transferred to torture; and (2) it rejects Omar II‘s holding that the REAL ID Act deprives the federal courts of jurisdiction in such cases (and thereby sidesteps the constitutional question that Omar II resolved).
VI. Taking Stock
If you’ve made it this far, congratulations! You may be wondering why all of this matters… Let me suggest two reasons:
- The law governing detainee transfers is going to continue to matter at least until and unless we’re no longer holding individuals in military detention at Guantanamo or inside the United States. To that end, understanding whether courts may hear such claims on the merits, and what the appropriate standard is, is a pretty big deal–and there’s now arguably a circuit split on the subject. Ultimately, whatever the right answers are (is there jurisdiction? can detainees attempt to rebut the government’s assurances?), clarity would be useful.
- Reasonable people may disagree with me (and Judge Griffith) that Kiyemba II badly misreads Munaf. But assume for the moment that we’re right–and that it does. One could possibly have dismissed Kiyemba II as a Guantanamo-specific decision, and therefore one that could largely be ignored going forward. The Ninth Circuit’s decision in Garcia converts Kiyemba II into generally applicable law that will prevent litigants in even totally conventional extradition cases from attempting to vindicate claims under FARRA/CAT (at least so long as it is official U.S. policy not to transfer to torture), and may therefore put the United States in violation of its obligations under CAT. To the extent that this is not what the Justices had in mind in Munaf (or Congress in the REAL ID Act), this is a pretty big deal…