Torturous Transfers: Examining Detainee Habeas Jurisdiction for Nonremoval Challenges and Deference to Diplomatic Assurances

Table of ContentsI. Introduction 2488II. Habeas Corpus and the Domestic Statutory Bases for Detainee Challenges 2493A. The Historical Roots of Habeas 2494B. CAT and FARRA, U.S. State Department Regulations, and the 2005 REAL ID Act 2499III. The Foundational Cases 2505A. The D.C. Circuit's Guantanamo Jurisprudence 2505B. A Lasting Legacy: Beyond the War on Terror and into Ordinary Extradition 2509IV. Establishing Federal Courts' Jurisdiction Over FARRA Challenges to Detainee Extradition Orders 2516A. Omar II and Mironescu: Attempts to Limit Jurisdiction to Final Orders of Removal 2517B. Garcia and Beyond: The Case for Federal Jurisdiction 2519V. The Need for Substantive Review of Detainee Torture Claims Under FARRA 2524A. The Case for Meaningful Review 2525B. Supplemental Considerations in Support of Substantive Review: Separation of Powers and the Rule of Noninquiry 2528VI. Proposing a Rule of Limited Inquiry to Provide Meaningful Judicial Review 2531A. What Habeas Demands 2531B. Assuaging Government Concerns Regarding Enhanced Judicial Review 2532C. A Framework for Review 2536VII. Conclusion 2538I. IntroductionEach year, the U.S. government decides whether to transfer individuals from the United States to foreign countries in connection with deportation proceedings, detainee releases, and extradition requests.1 Individuals facing transfer may bring a statutory claim against the U.S. government in federal court to bar their transfer on the grounds that it is more likely than not that they will be tortured in the recipient country. To challenge their pending involuntary transfer,2 they rely on U.S. treaty obligations under the 1984 United Nations Convention Against Torture (CAT),3 incorporated into U.S. law by the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA).4 CAT and FARRA proscribe the transfer of a person if "there are substantial grounds for believing the person would be in danger of being subjected to torture upon return."5Ideally, fact-specific decisions in these cases depend on the context in which a person raises a FARRA claim: either in connection with post-9/11 detention at Guantanamo Bay, normal extradition of individuals wanted by another country for criminal prosecution, or to serve a postconviction sentence.6 With respect to the first category, Guantanamo detainees require a recipient country in which to resettle7 after successfully challenging their detention.8 Facing the threat of torture in many of their home or proposed recipient countries, these individuals look to FARRA to stop their transfer to a country in which they believe they face a substantial likelihood of being tortured.9These FARRA claims, however, transcend the unique context of Guantanamo Bay military detention cases. Individuals facing ordinary extradition seek to raise claims of torture as well.10 Under FARRA, individuals facing extradition may challenge their extradition by petitioning a U.S. court through the writ of habeas corpus.* 11 The United States Court of Appeals for the Ninth Circuit heard one such case, Trinidad y Garcia v. …