likely than not that he will face torture abroad the issue is who makes that decision for the last one hundred and seventy years it has been the secretary of state the district court or country being congress express commands and over  thirty six where congress provided discretion for the secretary of state to surrender a future that's been presumed that's been certified pursuant to a court order under eighteen u s c three thousand one hundred and eighty four as this court recognized the intent it is the secretary of state who has the final determination over that matter and the rule now on the inquiry precludes a court to review into the conditions that a fugitive may find when  that it's the policy of the united states not to extradite expel or return individuals to a foreign country where they may face torture now congress is implementing that policy it was clear it delegated the implementation of that policy to clear that the secretary will consider the issue of whether or not a fugitive role face torture abroad that the department will analyze the issue and that the secretary may decide in his discretion to surrender not surrender or surrender with conditions based upon that analysis but equally clear those regulations make clear just like before act itself that any decision of the secretary is not subject to judicial review it's a can i ask you how these arguments relate to the fall by brightness point that you make so assume for a nd that it's possible that there could be review of the cat you make your argument it wouldn't be right anyway because what would be reviewed at that point would be the secretaries record the secretary of treasury which hasn't been made if that were true we agree with you on the right this point with there be any then talks about whether the crime falls within the treaty when there's evidence of the crime and whether there's jurisdiction over the person to be extradited but conspicuously missing from that is a broadly interpreted it to in effect in compass whether or not the treaty requirements have been fulfilled in any given case the government as it bends the argument you're your honor posits in some cases it has not succeeded on it but i do think it's a fair argument you're on the right but even if it were true we would still potentially have abs review over whether the treaty was complied with potentially or are and i think the reason i think that perhaps that it did not and i think the starting point really is article on the treaty across article one of the treaty imposes the obligation to extradite for individuals who by their being convicted or who are soft for is detaining where arresting the individual basically is a matter of comedy to the foreign court nd the document that sets forth the charges against the defendant or the fugitive the purpose of that that that is the purpose of this requirement because i could just as easily say the purpose is to show that the action they pushed action seeking extraditing has taken the offenses seriously enough that they ended their procedure seven days it or filed a complaint charges and it's a reasoning why when you look at the documentary requirements there was no requirement to include documents that had the charges it says that specifically not says for the formal charges but it distinguish charges were fired the district court basically you know that that's true that's a distinction from the language of the sarson but i guess that just takes you back to judge how does question which is where there was a reference to charges here it's not just a general statement charged with then you look at the documentary crimes to see does that mean just accusations what is the point of the provision that says the charges if it just is is there any thing in the record that suggests you could have an so far as there's a discrepancy in the action this request has more charges in it that are in the arrest warrant there's no basis for extradition as to that charge on your theory your honor if it's a situation where the arrest warrant is the prosecutor then it seems to cut the other way that makes it very trolls well they would have agreed that they'd only see tetration in cases that they thought were serious enough that they have an indictment or at least a criminal complaint by the victim prosecutor before word before accusation this is filed there so i don't know under the treaty structures i think it may be actually a distinction without a difference but if the court has no further questions the court any piracy for a petition and clearly question i was the st i want to start with the charging document issue that the court just ended with i want to add a couple of things that are to the factual issue of what charges are in the war interviewed and that that cuts in his favor i think on number one is unfounded and i'm going to work hard and i deal behind that isn't there some kind of negotiation over the charges which is what i understood the clear united states government's argument to be about dominican law that doesn't make any sense because the issue here is there has to be a match between the charges so active uncertified in the united states courts and the charges on which he's ultimately try so the government can argument for that because that depends on the claim that the charges is a separate requirement from the us war requirement and that charges for crimes listed in the arrest work can't count as the charging of the defense of the accused and this seems to be a statement that had under dominican before an indictment is returned to the defendant most requested no one has been indicted that has not been disputed by the dominican republic in any way but as the government lawyer just said article run for prosecution doesn't department and the dominican republic say flatly that apart from the two document problem the police aren't in compliance with have one seeks for prosecution one understands dominican procedure it's doesn't make sense to read the treaty to treat the arrest warrant as the same as the charging document i read it i think that's  the beginning the government's argument that it can be in the same document is i don't really care whether it's the same document are not the cells tentative requirement is that there be a and indictment a formal ac law we don't even the government concedes we don't have that here that's right but the government concedes that he hasn't been charged in a very practical basic manner that he's being requested so that he can be what it has to measure what's the object of the probable cause to trauma nation i need to know what the accusations are and it seems you have a problem so we have to read chargers as meaning so a formal type of accusation such as an indictment or a criminal complaint and i wanted to see greed and part and here's why as the court reads the treaty just as it would read a statute it to come up with a way to actually read the language and competing interpretations of the government has provided doesn't actually provide a road map to to read the language of article seven section three and here so the document setting forth the charges against the person is an independent requirement that the government is saying is that you know that's not surplusage it's not being read us or plus it because there could be a situation in which our warrant does not l or all of the charges so let's give them out whether whether that situation exists in which you know there's a bill one of the most any of the charges i don't know but assuming argue lando there is a situation in which the warrant does not list any of the charges they're saying that in that situation a separate charging document would be required number one i don't see any basis for reading the treaty to mean different things depending on the facts of the case and over to the government even in that situation has not offered any viable reading of the language so what is the document setting forth the charges against the person in that situation is it a complaint or an indictment is it a post a no fly list a trial if you would if they said it's a complaint or an because it could also mean that arrest warrant there just is a more inclusive view of what compelled so you need some argument as to why the word the charges excludes the restaurant which is i think what judge c it was asking what are the charges mean doesn't it for your purposes have to be in the formal complaint or indictment and since we don't have that here you win but if you can't make that argument then i don't see what the dominican republic would accept that construction in other words i don't know that they want to be saying we're going to request someone on five charges and looks at the united states court is only willing to consider those that are listed in the workplace or something if there's only one document and it's only a warrant and the warrant only mentions to re what you call them tribes or accusations period then how could they get actual titian a few more they have zero documents in the government your own which is what does a drug charges for me and you seem to think that because of the government taking that position that makes it impossible for the charges to me in the arrest warrant and i'm not quite following why that would  fall i think what i mean is looking at the whole vision in the extradition treaty as a whole that if you're looking to the words the charges yes i believe that formal charges and all of the charges but when you say you put isn't that essential to your argument because i go back to the text here a copy of the documents setting forth the charges against the person sorry if you read that as saying there must exist somewhere a charging document of some formality like an indictment then you would not only because they didn't submit it but because it doesn't exist but if we read charge as meaning accusations then there could be and it doesn't have to be one particular type of document that sets forth the accusations that it seems you lose because the warrant does set forth the accusations so for at least some of the offenses so i come back to what is it that you would you should you say we should rely upon to project the proposition that it is reasonable to read charges as accusations they can against a passage in that situation i'm not sure what meaning it all one would be giving to do well because suppose you had a warrant for christmas one thing and you had an indictment that mentioned four others then they would need to file both those documents to get all four so it wouldn't be surprised in the circumstance in which they do give to documents sure there were there would be circumstances where one document wouldn't necessarily surprise but that doesn't mean that in all circumstances you need to tell us well  indication they're going to detain or arrest the person that they have the power to do it correct that's why there's the arrest and detention requirement document as well there's a document but do you mean if there was  just make sure we're clear about several sets of claims that have been made in this case the initial outermost layer is that the secretary of state does not have authority to look at the torture the factual torture issue at all because it precluded from doing so there's already been a determination and that treaty does not confer the positive authority to extirpate that that assessment by and to the cat treaty did not include it has to make a state department as the expert in these matters in the end in fact the keeper of the treaties there is a thirty minute instruction which would defer to the views of the parties and it's clear that both parties to the treaty both the united states and the dominican indicate what charges the person is being arrested for so if it's functioning as it is here as the document setting forth be charged as haskin yes it suppose you have an indictment that indict very helpful if there was a superseding indictment then you say you would amend the extradition request in order to overcome the rule specialty so you could include that new charge right that's when they're also have to be under this treaty going along with that new charge in the indictment some order of detention or arrest warrant now could be the summons or something like that but it wouldn't just be the indictment alone because there's still the documentary requirement of an arrest warrant for a detention because seems to me the point you make about ambiguity is a compelling one but the main thing that might cut against it is if your interpretation resulted in a surplusage this that would be a pretty powerful argument for your conclusion in favor of  opponent and so if every charge has to be accompanied by an arrest warrant or the order of detention as a document seem to suggest then the surplusage point can only be overcome if it's possible to have an the circumstances i mean some systems for example and sold off in a restaurant is sometimes issued for somebody being quote unquote in rebellion i e they haven't shown up to court sort of a bench warrant here in the united states so again that would go against the th circuit suspicion and the old word says that it must mention at least one charged in civil law there is the theoretical possibility that this could happen oh council i have a question is finding it premature that the issues certainly are right up until these separate kerry makes a decision the your opponent has suggested the very brief points one is on the issue of the charging document i just want to point out that there is nothing to prevent the dominican government work this court to look for on that basis from indicting and requesting him an extradition it's not the end of their opportunity and the nd i accept it's consistent with their procedure and they may prefer not to be inconsistent with their usual procedures go ahead what's your nd set and one i want to make i