uniquely offensive to the individual uniquely offensive to the administration of justice and uniquely likely to produce unreliable information no court in the united states admits evidence gotten by torture and of course under the treaty here the question is whether the evidence determine in this setting and this limited setting how do you take evidence you can't have it both ways you've got these two people who've said one thing at one point an entirely different thing at another point they are irreconcilable normally it would be handled in an evidentiary proceeding they would be there people would have process you would be able to determine that in this case we can't do that suggesting that the mere making of an allegation of torture is per se evidence that evidence is not competent no your honor there has to be some kind of evidentiary proffer and here there's substantial evidence of torture i'd like to highlight for the court a point did not come through in the briefs because the briefs are arguing about whether there was a legal error here and ignoring evidence of torture but the petition did not flush out and enumerate all of the items of torture evidence in this case and they are substantial in addition to the statements of mr ross and mr h do who several times said in court that they were tortured her todd was a count was corroborated in part by the court clerk there's additional evidence in this case your honor but forgive me counsel but what you're talking about though is an evalu the evidence as opposed to in a blitter ration of the evidence which is what our case law seems to require how do you square those things if we're using the terminology obliteration if we have evidence that an accusation supporting extradition was gone by torture that evidence of torture oh blitter rates any showing of probable cause we know from your perspective anyone who who is the subject of an extradition proceeding in the united states all they have to do is to get someone who originally inculpated them to say that they were tortured and that's the end of the extradition proceeding certainly not your honor that's not at all our position what's your position position is this where there is evidence of torture that's proffered the court has to inquire further the court does not have to believe the torture evidence at  court does have to inquire now here now here they did didn't did the district judge evaluate the evidence and include that there was irreconcilable and therefore went forward on the basis that nothing further could be done under the circumstances no your honor no evaluation of the torture evidence was made in this case at all the extradition judge decided and the district judge agreed that that evidence was categorically excludable and should not be considered and should not be factored into the probable cause determination therefore the finding of probable cause that was need rests solely on the accusations the judge never considered all of the evidence that those accusations were beaten and water boarded suffocated out of mr ross and mr hurtado that determination was never made and that's all we're asking for in this case or we're asking for is for a neutral decision maker to look at the evidence and make a decision as to whether it's sufficiently persuasive sufficiently can how does it work do you bring the witnesses from mexico and  interrogate them i mean if you recanted shortly after they made their original statements they apparently weren't afraid anymore so how do you evaluate that evaluation is going to be committed to the district discretion of the magistrate and now this does this can take any number of forms the case law cited in quinn it's clear that the magistrate has broad discretion in deciding how to evaluate evidence now this may take many forms it could be honoree man the judge will consider the evidence that was proffered in the record and again there is substantial evidence which i can list for the court if the court is interested it's not just mr rosen i don't think did in that evidence and i'm interested in whether or not it was excluded as well all of the evidence your honor was excluded the judge made the probable cause determination without weighing any single piece of evidence of torture in this case and the evidence is substantial it's not just mr rosen or thomas accounts it's the court clerk corroborating mr kerr told his account in terms of the bruises on his face it's relatives of mr hurtado seen the bruises on his face in person detail for all i know he he listened to the proffer that the defense made as to what we're very swinton's would attest to but i don't know that yet every line he certainly said whatever it says i can't consider it that's the error that were alleging here this judge needs to at least consider that evidence let's say someone is brought to court ten years after the alleged crime in a foreign country for the first time his lawyer says oh you can extradite him he was tortured the judge can say ok what do you got where's the evidence i got nothing ok next issue moving on that's not the case but if the individual offers an affidavit or some other evidence then is it your position it must be considered in some fashion reason consideration your honor it doesn't have to be believed to face value that's not our position at all or asking for is a reason to consideration by an impartial decision maker as to whether this evidence is credible so in this case you would have these affidavits plus the observations of other people and that would be stacked up against them of the agent of the public prosecutor and the medical records submitted by mexico in that and the decision maker would just make a decision indeed and you don't need a trial a hearing not at all now that's certainly an option there's no law saying that the magistrate can't have live witnesses but that's not a requirement we're not at all saying that that's a requirement this is a decision that can be made on the papers is a decision that's made every day my magistrates across the country in terms of determining probable cause and it's also a decision that's made every day by immigration judges when they consider cat claims well let me ask you let me ask you this just so we can sort of cabinet i believe you've conceded that the allegations of torture are inextricably intertwined with the recantations is that true no your honor we did not concede that as you have not conceded that what we said was this if i can just clarify the record the terminology and just so the court is clear the terminology in inexplicably intertwined is not a term of art of extradition law this is something that the district judge proposed she sent a list of questions but i thought you conceded that no what happened was this at the hearing she said did you concede we conceded that they were intertwined insofar as they were the statements were made at the same time when we were brought to court for the first time they said they described their torture they described the waterboarding the suffocation the death threats to their children and then when they were asked do you recant your accusation they said i recant temporally no they were m sion of that was extracted illegally absolutely through coercive interrogation and therefore which would be would be excluded so those two things are not are not inconsistent so we can we can ignore any of the recantation evidence as as evidence that it was that was not truthful only question that remains then is where were they tortured or not you've hit the nail on the head your honor we're not asking for consideration of the recantation statements we're not asking for a determination whether in fact they plotted the kidnapping all we're asking for is consideration of the substantial evidence in might not be unreasonable that they don't have to bring in additional witnesses or that could be considered conflicting evidence separating out the statements and allegations of torture if is just asking about the recantations basically saying i know i said i did it but really i didn't do it right we're not asking for consideration of that because we recognize that that goes to the question of ultimate guilt that's something for ultimately the trial court could be considered contradictory indeed we don't get basically came to court so then my question i guess then i guess is what limits you know could the extradition court impose that would respect the interest of the mexican government while giving the course official factual nearly ten years ago and yet there's no evidence at least from what i could see that the mexican judge has credited those statements or does it even exists that evidence do you know whether it also sent her total ever were convicted of the kidnapping the evidence of are you saying whether the evidence of torture was created by a judge wrecked we don't know we know they made these statements before judges we know that they made their initial allegations before prosecutors so are they pending are they still in jail pending determination or their trial the ultimate disposition of their cases is not on the record what is in the record is that one of their co defendants rossa lopez mandeville who was also implicated by rosen or toto it in their initial statements she has been exonerated by a mexican court the in court has avoided her conviction saying there was no evidence to support it so we don't know ultimately the final disposition of these cases but we do know that in this case what the judge did was to ignore all of the evidence that these two people on whom  extradition pens were tortured into making their allegations i i'm i'm puzzled by the way that statement i'm looking at the district court's decision for pages twenty three twenty four and it looks like the judge considered each of the allegations that because you couldn't verify one way or another and they were directly contradictory of what had previously been said that there was nothing that the court could do but that court considered the evidence there was a lot of evidence below and there were a lot of arguments below your honor our argument w not simply about torture we had also advanced an alibi theory and we started consider that the district could put all of that has been peeled away our argument because the only issue reason appeal your honor was the legal error of ignoring the torture evidence but they didn't ignore that the what i'm saying is the district judge reviewed what the magistrate judge did and the district judge did consider the charge or evidence in the district judge did consider the alibi evidence and concluded that it was so contradictory of the original statement that there was no basis torture because i find that they are inextricably intertwined the torture and the recantation but you say ignored it it wasn't ignored the fact is there was no ability to make a final to a determination other than that they were contradictory and therefore you couldn't go forward in this type of receiving they considered it well they just didn't agree that that per se was enough to eliminate evidence of probable cause they acknowledged that there was evidence of torture in the record but they refused to the circuit in which someone says if you extra you can extradite me because these people were tortured the courts have always consider the torture evidence and they either find it compelling as they did in court a whole and barack hint as to one charge or they find it not compelling as to some bearup it was at the language that the court use that it didn't find it compelling or was it the fact that it wasn't considered it wasn't considered your honor there was no analysis what i forgive me counsel i i don't know what you look at when you look at pages twenty three or twenty four but it seems to me that every allegation that was made was reciting it they talked about the torture what more can be asked then getting the people on the stand and conducting a mini trial your honor on page twenty of the record the district court says that the court concludes the extradition court properly excluded the evidence of torture well that was the ultimate conclusion but there was also a discussion of what that evidence was there was a discussion of the other evidence about the lawyer barry sheet about the alibi allegations but none of that is at issue in this case the judge there neither judge below considered the evidence of roe sauce in her thought as torture they didn't consider the other evidence of torture that was proffered the record and that's all we're asking for at the end of the day the district court agreed that the magistrate shouldn't consider the evidence of torture because it was inexplicably intertwined we've briefed why that's incorrect as a matter of fact and law and cannot handle that  nd like to get your position clearly on this question the basic rule that we have is if there's conflicting evidence that will require determination by a jury or by a bench trial judge that's not section discussing recantation but in the section discussing torture specifically what we held in barracks and was that the court below properly evaluated the evidence with respect to whether there was torture decided there was not torture and therefore consulted the evidence now is your position and that if there is evidence of torture on both sides that is to say evidence presented that there was torture and evidence presented that there was not judge you argue that he was able to invalidate the first warrant of his rest in mexico it seems like in part because the evidence that there was evidence that  tortured into confessing at least that's what i wear is that no your honor the initial warrant was for to charge with alleged two counts the second warrant alleged one count and the second count was dropped by the mexican authorities essentially for lack of evidence no i was about that had nothing to do with the thank you and i guess the other question i had is do we even need the confession these confessions mr also said mr h o it seems like we have the third individual i think his name is mr hernandez who the government submitted that mr also said mr munoz approached him about doing the job victim's father here the victim's husband father you also have the victim the mother of the daughters who identified mr ross us at least that's what's in the and i'm just wondering do we do isn't that sufficient probable cause you know your honor the district judge had the very same question and she rejected it and for good reason walked through why she rejected it i'd also like to note once she did reject that argument the government didn't  appeal the panel didn't say that there was probable cause and the district judge rejected that argument for good reason she explained that the stronger the statement in this is on page eighteen of the record mr andro the statements today to support a probable cause finding she considered it in combination with the mother's statement and she said that well in combination it shows there is probable cause to believe that ross us was involved in the crime the same is not true  there mr ross asked me if i wanted to do an unspecified job involving badal or bob and he said no and that was the end of it there's no other evidence as to mr munoz from any of the with any of the any other witness statements the mother does say mr rose sauce was the person who kidnapped me and therefore the judge said if you put together that statement with on broadway there's probable cause for but there isn't for mr munoz none of the other witnesses implicated him her finding we submit is proper under the law that evidence put together doesn't make it fairly probable that mr munoz was involved in the government and you didn't dispute this on appeal and the panel didn't find to the contrary either we would submit that the district judge properly found that there was no probable cause as to news both parties have tried to shoehorn their arguments into this explanatory contradictory framework but the fact of the matter is this framework is far from perfect and has confused many judges in many courts this court does not resolve that confusion here the question here is resolved by going back to first principles the job of an extradition judge is to decide if there is competent evidence evidence then by torture is not competent so whereas here we have evidence of torture it has to at least be considered not believed on its face but considered and this is a job or that we're talking about a year out alleging an error in exclusion of evidence and if we're going back to first principles the supreme court said very clearly mere errors in the rejection of could review it explicitly no your honor and if there isn't a case saying you must consider evidence of torture i think that's understandable under the circumstances we're asking the court to do here today is to make explicit what has always been i he could never have before this is the first time it's happened and that needs correction i think that's right that's why a petition for rehearing on both your honour's counsel let's let's suppose that that we can that we concluded to be evidence of torture ought to be considered do we do we send it back to the hague court as the hague is court can behaviors court send it back to the extradition court what's the what's the mechanism and who's going to consider this it would be the extradition court your honor i think technically what we're asking for is for this court to reverse the judgment below and this actually was a little is a little awkward actually was the question before the district court that she considered like to do i have the power to tell the magistrate to do anything in this case and she concluded that she did under her power under the hippias writ so yes we would ask this court to order that the writ issue that the present certification be vacated and that it be returned to the magistrate court to consider the evidence of torture and there the parties will make their arguments as to whether the evidence is compelling or not sufficient or not adequate competent or not and it will be up evidence which has never happened but could we do is it in the record i mean could we review it we need to send it back if i'm unaware of this court ever finding facts in the first instance especially when the question is probable cause especially here where the record hasn't been developed fully but has this i guess my question has the record been developed fully not entirely what happened was this several declarations were proffered along with mr minister's petition and then later we moved for an extradition hearing and we proposed calling some witnesses who would add additional evidence and of course we never got there because the judge said i'm not consider any of this now we're not saying that this court has to order of the production of witnesses we're going to leave that to the discretion of the magistrate to determine in the first instance but once the record is complete and once there is a reason to consideration of the torture evidence then the majesty will be in a position to make that determination but let's look at it as a practical matter you back in front of the magistrate you have existing affidavits on the record correct yes you would like more evidence likely hearing it but but if the magistrate were to say look you had your shot i will now consider the affidavits you've put forward are declarations but i'm not going to have a hearing i'm not going to open this up to a the little boxes that we've been given so far is the concern that you don't want to turn extradition proceedings into a mini trial on and of charges on the charge but of course you could have a mini trial on torture and i would expect that that too was not anticipated so i take it your position is that the district court could look at the evidence offered by mexico already including that ecl and prosecutorial evidence and the affidavits and make a determination whether there's anything more and if the district court said it's not enough i'm just going to go back now evaluating whether or not the evidence was procured by torture well let me say there are two things going on and bear and so it is true that the court didn't i disapprove of what the rick so it came up on the defense and what this court said was that the court made a careful and then analysis of certain of the claims of torture but then the court also talked about other claims and is that it could not decide whether the original statement made was true or whether the weekend he shall was after a bear printed already a from the magistrate judge finding that these original confessions were not procured by torture not so your honor was and that's exactly right because he because he list them by name by number that is correct and most of those numbers we said the magistrate judge found and was not clearly ruinous and finding that they were not pure by torture and procured by torture and was therefore competent evidence respectfully not so your honor and it's not so for two reasons one is that there were multiple discrete allegations of torture with respect to the ones that were based on  magistrate court embarrassed in said it would not consider those allegations because it could not make a credibility determination that was a matter for the indian courts to do but second and i think critically important in the critical difference refute them with any evidence of its own nor seriously objected to them on appeal the government didn't argue that there was no torture and so bear pain is a completely different scenario where what the magistrate court was doing was not weighing two torture was when there was no evidence on the other side here when my opponent is asking for is something entirely different and that's clear from his most recent letter to the court what he is asking is for the magistrate court to say i believe the ta he said if you don't even serve it up the decision can be made that's how i understood it so i think you're misstating his position i don't think i am your honor i think it is clear if you look at fifty nine to sixty and these are issues that have to be decided by the court of the requesting country because they would rely on determining which of these two accounts is more credible and here there is can answer those that that section beginning on e r fifty nine is sure they're there at the same time that they say odd i was tortured they said i didn't do it but i'm asking you to do something such slightly different let's suppose that they didn't deny the initial the initial statement but said it was obtained through co measures on lawful under the due process clause right and if that's the case then then the evidence would be would not be competent evidence and we would have to throw it out which is what judge mauro did she said ok look the problem is is that if we at this moment what i'm saying is specifically here hurtado is original statement is i would make this statement freely without any physical duress without any violence moral or physical against me he makes that statement in the presence yeah it's it to your point is interesting but it's a second order question because you it goes to the question of what was his mental state at the time that he made the initial admission that he was involved in the cry and what the second one does is your right as to as to the question as to mexico or your office in two days any evidence that disputed whether or not their witnesses were tortured absolutely mexico proffered medical examinations that happened immediately after this torture question is a preliminary question for you and you don't consider whether or not they're truly innocent or guilty because that's not up that's not on the table now we're just determining whether there's competent evidence to support probable cause what's the problem if both credible evidence on the other side sure there's tremendous problems so the first problem is that how is the magistrate for the first problem and most fundamental problem is that the supreme court and this court have said over and over again that the do is determine whether or not there is competent evidence supporting probable cause and if the evidence was procured through torture the that that evidence is not competent evidence competency simply means in conflict for the magistrate judge to weigh evidence and to find facts so let me show you that when it's both when it's explanatory and contradictory you say contradictory supersedes explanatory absolutely and that's because if you work at supreme court states in an extradition hearing when torture is alleged the court need not consider evidence of torture to determine whether there's evidence is that the principle yes ok the court if the evidence of torture were not contradicted you know my question was without the qualifier you put in there and you said yes that that basically you don't need to consider evidence of torture correct if that evidence is contradicted and the reason why is because the extradition hearing is not the end of the line by any means it's the start of the line the ind extradition process but in a high sense of responsibility on the part of the executive officials charged with duties in this context and then when you hear that your support i know what the treaty says about evidence but when you say that competent evidence really only means authentic ated it's all you need is a couple stickers out of any foreign government stamp stamp stamp that's competent evidence yes and that's from factual weighing but it seems to me by permitting the fugitive to admit evidence of any kind that puts a question on the table what the fugitive is allowed to do is introduce uncontested evidence evidence and after that you find out whether it's going to stick so much that i'm not prepared to accept your qualifiable let's go on to the main thrust isn't it the case that the magistrate judges at some point going to be asked to say well does this really explain away the evidence that's been proffered by the foreign government or not yet but they can't be by weighing the two pieces of evidence for how else is he going to resolve that oh well he cannot resolve it if the evidence c evidence mean if evidence cannot be introduced and how can it be obliterating our case law as that obliterating evidence can overturn this can you give me an example of what obliterating evidence might be in this context sure i  mean the example of obliterating evidence is in our answer brief the penal state is the railroad exam exactly right so in that case there would be no way in between conflicting evidence for the magistrate to do the magistrate would say i b the truth of the evidence being offered by mexico i believe the truth and that evidence being offered by the fugitive and there is a single story in which all of that evidence is true and your hypothetical is the government still pressing its case for extradition or does it say oh my goodness this is a good explanation we withdraw the request and hence the magistrate judge never has to rule if the government doesn't withdraw how do you not have a contest that the magistrate judge is asked to evaluate because what the magistrate judge is evaluating there is the the inference is that can be drawn from evidence how is that not a factual determination because drawing inferences is different from a factual determination of faculty government hasn't withdrawn the request it sounds to me about it's a contested issue and you're asking the magistrate judge to decide which he finds more persuasive yes which influences he finds more persuasive as opposed to which evidence he believes and the reason why it can't be which evidence he believes is let's just take a moment  to magine what actually will play out in this case what the magistrate court is going to be asked to do here is decide which is more believable on the one hand medical examinations from mexico on the other hand claims of torture by the two issued to bring these witnesses over from mexico so now and where stocks were respectively serving forty five and thirty seven degrees thirty seven year sentences in mexico are sent over here so they can testify the medical examiners are sent over here the you can bring in witnesses but those witnesses can't be for the purpose of contradicting the evidence put on by the government so as a practical matter torture can never be considered an extradition proceedings because the evidence comes in from the government saying this is the statement he gave of his free well and he said it was tortured and under your theory that would be contradicting the early statement of fact finding had been made so as a practical matter torture can never be considered in these  your position no that's not my position because when can torture when it's uncontested and which has happened in gil the evidence of torture was uncontested and it was a game in government let's say the government doesn't contest it the evidence of torture from the mexican government comes in here's the statement of confession he says it was tortured they say nothing then you have a case where if the claim of torture is not disputed then there is no factual dispute that the magistrate would have to make resolve and that could potentially be explanatory evidence but that's not the case in this case mexico vehemently disputes that the two defendants who say they were tortured the same judge who heard the recantation evidence ordered them held over that's in the record are been convicted that's not in the record but what's in the record is that the maddest the mexican judge who heard the claims of porter held them over and so so what did you mean when you answer the question earlier and you said the evidence of recantation disputes their earlier statement that their statements were made freely and voluntarily so you have you have in my hypothetical a statement that says this statement is made freely and voluntarily that's the only evidence that comes in from from the mexican government and you have the future just statement that i was tortured did i misunderstand your prior answer that that would be conflicting evidence that the magistrate judge could not correct so when just when do you ever get to torture i mean when you get concert because you could have for example because they will always say generally that i was made freely that's not true that statement wasn't made with respect to rose sauce and they get on your sort of presuming the level of specificity and process we see from mexico but no i'm just giving a hypothetical and to understand your position so you could have this supreme court has said you can have multiple layers of unsworn hearsay so you could have something that says the prosecutor from mexico says he heard from a police officer that rose asked him fast that would be competent evidence the supreme court has held that that is competent evidence and then the future could come in and that's true but here's a statement evidence make credibility terminations and find facts all things there has been said time and again by the supreme court this court cannot be done in the extradition process but in this case here it's a totally different posture what's happening here is mexico vehemently disputes the claims of torture the government's position isn't that the future will never get to make his arguments about torture he will get to make them you have got to make them in a court in mexico and what this quote in the supreme court upheld repeatedly is that the premise of the extradition process is that mexico's courts are trusted to resolve those issues why can't the magistrate judge do that here i mean you just described i mean set aside the recantation consider the allegation of torture and in considering  it consider what the statements are that the government has offered including that mexico vehemently refutes it consider that the allegations of torture may be self serving to see what else that the that the extradition court thinks reasonably consider in an extradition setting and then let him decide because one of two things will happen either the court will say determine the state of the evidence right now i'm going to side with the fugitive in which case mexico would rightly say we have to be allowed to send our witnesses over so that they their credibility b s s or the court will say i can't make a credibility determination here in which case i suppose my opponent's view would be that the hearing of witnesses would be required because there has to be a credibility term nation or the court will find for mexico in which case no harm no foul but  have to turn into a mini trial because then the request of either mexico or the petitioner would have to be taken seriously to bring witnesses either we win or we should say mexico wins were there has to be a mini trial but judge who heard this confession i'm going to discredit the mexican prosecutor who said there is no torture based on these written statements let me let me give you a different scenario that the evidence that we have here the district courts  that documents on the torture were properly excluded if we were just put this back where it potentially should be which is at least the documents would be considered wouldn't be possible here just for than had strayed judge say ok i now have everything in front me i am going to consider everything but my decision is at best everything's in ecuador because i would have to make credibility we don't have documents of certain nature and therefore torture is not torture is not sufficiently proven here given an echo poised situation and i'm back to extradition but the magistrate judge would have considered what judge provided the fugitive with incredible i read a process that's why this is taken so long and one of the things that the magistrate court did was carefully review all of this evidence but what the magistrate said is that when you have on the one hand the statements that there was no torture and the medical evidence on that side and the prosecutor's statement from mexico on that side and on the other side you have these we can't asians and the additional evidence that they have got all that and i want to follow up on and question i see two different kinds of evidence that may be at issue here one kind of evidence is evidence of guilt and if there's a conflict in the evidence the extraditing judge has to say there's a conflict i can't decide that i extradite that's evidence of guilt there's also evidence going to the admissibility of evidence and i think everyone agrees that evidence of guilt if there's conflict we extradi there seems to be disagreement here as to what you do with evidence of admissibility of evidence you seem to be arguing that the magistrate judge is incapable of deciding even the question of admissibility of evidence if there's conflict setting forth would not be limited both to twitter the reason why is that there was a due process i think it is admissible of torture because of the special characteristic of evidence obtained by torture we started out with a proposition i don't think you this court has held violates the due process the government cannot introduce knowingly introduce false evidence without violating due process what if the evidence what's the difference between your place where i did this voluntarily and maybe true or false and i was tortured so this was not actually true when i said it so how do you distinguish between that truth and falsity right i mean the answer is that a magistrate judge should not be weighing competing evidence and resolving disputed facts that has to be done in the country where the evidence and the facts and the witnesses and the crime all are and there's no reason why as defendants on papers throughout this case make clear right this would be any different than saying that when this is against me were bribed and i want to introduce evidence that they were bribed that doesn't go to the facts of my offense it goes to the weight that should be given to the witnesses testimony council have a question on that if i have evidence and i'm the defendant then ensues that the witness is paranoid schizophrenic and has a history of making up stories about people he doesn't like or read about in the newspaper and this context he cannot in your view he could not introduce evidence as to that he can introduce evidence for that if it's not conflicted but if mexico says this witness is sane and he was examined by a medical examiner and he was your mind when he gave his testimony then the magistrate judge can't hear competing medical evidence decide whether the witness was or was not mentally and me ask you i know we're almost out of time but in the search warrant contacts magistrates way credibility all the time with what we require under case where a piece of evidence offered by our western country has been held to be not competent any i'm unaware of any case in the future the cited no case where a determinate a certification of extradition has been seems like a harsh rule is i for one only because it's the supreme court has said a finding of extradition signals the start rather than the conclusion of the litigation of the fugitive's guilt the premise of this entire system  treaties you have any cases and any and merits other and extradition treaties international law you have any cases where the issue of torture has been a threshold issue where the extradition has been refused judge meticulously reviewed the evidence and decided it was not persuasive and that kind of torture evidence of torture on a precisely this the government i think is the court's questions made clear the government's position that evidence can never be disputed did looked at all of those and said i'm making a factual determination that these were tortured that that there was torture therefore that there's no basis is what requests just mexico ha but i guess what is the danger of that american courts would be making total adjudicate things on the merits and then that's the end of it there's no danger that an american court is going to adjudicate the merits of the kidnapping charge and frankly i'm actually surprised it would seem to be a fuse if an american court sad that i believe he's for taken by torture and therefore you know that him and that's why i'm not extraditing then that could be that there would be no torture is incompetent but if they said i but if the court said i think that there was torture and i'm not extraditing then they've essentially ruled on the defense they've they've they've said there was a defense of torture that's the end of the case and mexico could never  under torture is not a defense to kidnapping torture goes to the competence admissibility of the allegation it would be a finding as to whether they're guilty of the kidnapping charge it would be a finding simply that the evidence that mexico is offering to justify this extradition is not competent in a u s court and that is precisely the determination that the treaty requires a us judge to make and that us judges make every day in search warrant actuations when i g s or considering cat claims of torture when any judge is considering a question of probable cause this is not some wild radical idea we're proposing in fact it's the government's position that is quite radical indeed the government's position is that when there is evidence of torture it can never be considered unless of course it's undisputed and that's a fantasy world where we can have