From Boumediene to Garcia: The United States' (Non)compliance with the United Nations Convention against Torture and Its Movement Away from Meaningful Review

I. INTRODUCTIONOn September 11, 2001, the landscape of international relations dramatically shifted.1 It was impossible to predict how the ensuing "War on Terror"2 would necessarily impact domestic treatment of international law, influence detainment procedure for alleged "enemy combatants,"3 or compromise United States compliance with the United Nations Convention Against Torture ("UNCAT" or "the Convention").4Cases of first impression arose that challenged a newfound and newly respected broad Executive power in light of growing national security concerns.5 Though the Executive traditionally has had unfettered power to act during wartime, the extent of those powers in the extradition context has recently broadened and become subject to dangerous deferential treatment by the U.S. federal courts, despite affirmative UNCAT nonrefoulement obligations that indicate a need for Executive review.6 Judicial deference to the Executive has reached the point of noncompliance with UNCAT, due in large part to critical misreading of relevant precedent and recent legislation.7The modern task of the courts is now to effectuate a delicate balance between deference to the Executive on matters of international concern, on the one hand, and to comply with basic principles of international law as codified in UNCAT and implemented via domestic legislation on the other.8 The palpable difficulties presented by the clash between domestic law and international policy, once a realm of advancement,9 have caused derogation from UNCAT nonrefoulement obligations.10The United States adopted most of its UNCAT obligations via the Foreign Affairs Reform and Restructuring Act ("FARRA"), section 2242 of which implements UNCAT's nonrefoulement mandate.11 Recent extradition jurisprudence, however-characterized by the use of Executive assurances and foreclosure of judicial review- demonstrates noncompliance with the UNCAT nonrefoulement mandate and the promise not to "transfer to torture."12This comment will argue that the United States' implementation of its nonrefoulement obligation is patently inconsistent with the antitorture goals of UNCAT.13 It will further argue that detainees raising claims under UNCAT and FARRA should have access to meaningful review beyond an Executive assurance that the detainee will not be subject to torture.14Part II of this comment will include a foundational discussion of the "meaningful review" standard and recent extradition and transfer case law, as well as the implementation of UNCAT's Article 3 nonrefoulement mandate. Part III will argue that the United States, in its handling of extradition cases, is in derogation of its UNCAT nonrefoulement obligations vis-a-vis a disallowance of substantive judicial review. Part IV will suggest and conclude that the United States might solve this compliance problem by eliminating the ambiguity in FARRA and accepting the necessary role of federal judicial review to comply with its obligations under the United Nations Convention Against Torture.II. BACKGROUNDA. HISTORY AND CONTEMPLATIONS OF THE UNITED NATIONS CONVENTION AGAINST TORTURE1. A Brief History of the Creation and Goals of the United Nations Convention Against TortureThe United Nations Convention Against Torture aims to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world."15 UNCAT Article 1 defines "torture" asany act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.16The primary purpose of UNCAT is to reinforce the longstanding prohibition against torture in customary international law. …