Back in June, I wrote a fairly lengthy post analyzing the ability of detainees in U.S. custody facing extradition or other involuntary transfer to a foreign sovereign to challenge their transfer pursuant to the federal statute implementing the United States' treaty obligations under the U.N. Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). [Among other things, FARRA specifically declares that "[i]t 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."]
Although this question has arisen in a number of the Guantanamo cases (Kiyemba II, Abdah, and Farhi Mohammed, in particular), it transcends Guantanamo insofar it can also be at issue in entirely ordinary extradition cases--like Trinidad y Garcia v. Thomas, the en banc Ninth Circuit decision that prompted my original post. As I noted back in June, a fractured court in Trinidad y Garcia held that the federal courts do have jurisdiction to entertain such claims (creating a circuit split with the Fourth and D.C. Circuits, each of which have held that they do not), but that such judicial review is necessarily limited to ensuring that the Secretary of State has filed a declaration that it is not, in fact, "more likely than not" that the detainee will be tortured once transferred--whatever else may be true on the ground. Once such a declaration is filed, the court's work "shall have reached its end."
To make a long story short, Trinidad y Garcia has since filed a petition for a writ of certiorari challenging the latter part of this analysis, and yesterday, with the help of the good folks at Jenner & Block, a group of legal historians and habeas corpus scholars filed an amicus brief (that I helped to draft) in support of that petition.
Perhaps unsurprisingly in light of my earlier post, our brief basically argues that the Ninth Circuit (contra the Fourth and D.C. Circuits) got the jurisdictional issue right, but the merits badly wrong. If, as Boumediene held, “[t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain,” then individuals with colorable claims under FARRA have a right to such meaningful review--not just of whether the Secretary of State has complied with FARRA procedurally (by submitting a declaration that it isn't "more likely than not" that the detainee will be tortured if transferred), but also substantively (by not actually transferring the detainee to torture). We also explain why neither the Supreme Court's Munaf decision nor the "rule of non-inquiry" are to the contrary, but I'll leave you to the brief for elaboration of those points.
Many have noted the extent to which the D.C. Circuit's veritable monopoly on Guantanamo cases decreases the odds of Supreme Court intervention, since it should follow that few--if any--of those decisions, however controversial, create a circuit split. But here's an important counterexample--a circuit split as to the power of the federal courts to prevent transfers to torture, and an important opportunity for the Justices to clarify just what kind of review the Suspension Clause really requires on the merits in a case (1) lacking any of Guantanamo's legal or political baggage; and (2) with relevance to plenty of non-terrorism cases, as well. Indeed, Justice Kennedy has already stayed the Ninth Circuit's mandate in Trinidad y Garcia pending disposition of the cert. petition, so perhaps this isn't such a long shot after all? We'll see...