as to whether there was a future decision by the secretary would somehow be in violation that was never before that how old have decided was that she was not at that time right but sort of arguing round around here then my question still becomes can't we still work at the a p a exceptions under either you know unless otherwise prohibited by law or committed by agency discretion and are committed to agency discretion and find that in manner in which the secretary has exercised his discretion it falls within those two well conceivably it could get in fact we knew how the second exercise or treating this case differently from the way is regulations since then he will treat every case there's nothing to indicate that because nobody's ever looked at the agency record i understand but that's the  entire record over those parts of it cited by the parties so we should both really go into the field of foreign relations and opine on whether or not the secretary properly engaged in diplomatic exchanges with the mexican government to assure the safety and security of your client upon return once we export with with all due respect i think just of both oversimplification of the issue and different question i'm assuming there are going to be communications in there between the mexican and united states governments as to promises that may or may not have been made with regard to how your client's going to be treated if you vector got it and my question for you is really based on the constitution do we really have the authority under article three to tell the secretary of state whether or not we think he's adequately carried out his job in the field of foreign affairs response to just work courts are going to be second guessing the decision of the secretary of state this is a situation where if the secretary can point to evidence in the record in the administrative record it course not nor do we know nor do you know whether i'm going to look at anything for i do believe that when you get a decision from a he is it reasonably supported whether or not i look at anything all right so we've got the secretary's decision and we don't think that the language of the communique clear enough to promise that your client won't be tortured again and we can tell the secretary your decision is wrong and we're not going to permit you to i think that once the court looks at the record the court will then evaluate should then evaluate the agency's decision under the highly deferential arbitrary capricious standard and i were in the first to admit that once we get to that stage significant discretion and that this court review will get to that stage you you've just postulated a train wreck between two branches of government i don't know dictating to the secretary of state what the policy of the united states should be which we many send them back that's true but but in the normal case without the torture aspect you would concede would you not that once the magistrate judge determines identity and probable cause the secretary's decision to actually extradite is not the question i think that we're concerned about the question is if if we are bound by the decision and we think that that decision conflicts with our powers of review en the enormous interests at stake given the recognition that protecting individuals against torture is a paramount concern of this government recognized by both treaties and statutes and is now implemented in a statutory scheme in a regulatory scheme we are going to oversee this and we have the authority to oversee this under the administrative procedures that i think that decision recognizes reform restructuring that is that this country and this government will not participate in any way as an aider and abettor in any way can generally in the torture of individuals that right becomes paramount  over the direction of foreign policy and that's why i'm wondering whether this case is worthy of of any bank review that if that is the way we are going to go there ought to be at least eleven judges on this  make that decision rather than to i would submit that there is no risk of judges taking over foreign policy here you're asking us to choose between treaty obligations and that causes me pause as an article three but with very limited don't know that we trust your judicial system and so we want assurances from you sometimes it's fine for us to do that publicly in the country we have the state department has already criticized publicly from the foreign minister of mexico or france or whatever country would take it with a sufficient and these kinds of questions we believe are are not appropriate for war are the article three courts and indeed action and this is the key part and nothing in this section of shall be construed as providing any court jurisdiction to consider or review claims raised under the convention or the second or any other determination made with respect to the application o service has been applying the rule of non inquiry in cases where there are claims of corruption torture all sorts of bad treatment should be expected in foreign countries th obviously in the vast number of cases the secretary will go forward with an extradition after this germination extradite ability however there will be a rare instances where the secretary for extremely sensitive foreign policy reason finding is made yes there's a substantial likelihood that the person will be tortured the secretary then has no discretion exercised however granted the secretary is the one who is going to make that factual rational ok just a couple points i'd like to address this issue about seeking assurances and potentially judicial review causing embarrassment to a foreign country for interfering somehow because negotiations between the state department the foreign country will be brought out into the open then these are backroom things that the public to know about i don't doubt the that they believe that argument however courts deal with that all the time that's trying to keep the door closed that you should or shouldn't be behind the door that hasn't been made here because nobody's even crack the door open they are guarding it they're feeding it shut and not letting anybody rises to that level responding has said that the rule of law in korea has been applied in cases involving torture i'm not aware of any such case certainly no case from the circuit the complaints in lopez smith had to government officials and that fundamentally distinguishes this case from all the others finally the comment by responding counsel that the secretary will decli secretary himself doesn't understand it's duty and it's for this court to tell the secretary's duty you cannot you cannot extradite somebody where there's a potential likelihood that they will be tortured that's the law stated by congress that's the treaty