Filipino’s Claim of Future Torture Warrants a Look

     (CN) – The secretary of state must weigh torture claims before the Philippines can extradite a man accused of kidnapping for ransom, the full 9th Circuit ruled Friday.
     Hedelito Trinidad y Garcia claimed that Secretary of State Condoleeza Rice signed the extradition order despite evidence that he would face torture in the Philippines.
     This possibility would violate of the Convention Against Torture and the Fifth Amendment.
     When the government refused to turn over portions of the record, a Los Angeles federal judge ordered Trinidad y Garcia’s release.
     The government appealed to the 9th Circuit, and a full, 11-judge panel of the federal appeals court came to a substantially similar conclusion in a 110-page ruling Friday.
     “The record before us provides no evidence that the secretary has complied with the procedure in Trinidad y Garcia’s case,” according to the unsigned opinion. “The state department has submitted a generic declaration outlining the basics of how extradition operates at the department and acknowledging the department’s obligations under the aforementioned treaty, statute and regulations, but the department gives no indication that it actually complied with those obligations in this case.”
     Federal law entitles Trinidad y Garcia to “strict compliance by the secretary of state,” the panel found, remanding the case to the District Court “so that the secretary of state may augment the record by providing a declaration that she has complied with her obligations.”
     If the State Department provides such evidence, the panel added, the District Court will review it and “the court’s inquiry shall have reached its end and Trinidad y Garcia’s liberty interest shall be fully vindicated.”
     Writing in dissent, Judge Richard Tallman, joined by Judges Richard Clifton, Milan Smith and Sandra Ikuta, argued that the “Rule of Non-Inquiry … precludes Trinidad from obtaining judicial review of the substance of the secretary’s decision.”
     “Seizing on a concession the United States offered only for future cases and only if we found it legally necessary, some of my colleagues now find reason to doubt the undoubtable, worrying whether the secretary ever made a torture determination at all,” Tallman wrote. “They brush aside the fact that Trinidad himself had no reason to doubt the reality of the secretary’s decision – the decision that prompted Trinidad to bring his habeas claim, the District Court to rule on it, the government to appeal, and two separate panels of this court to consider the matter – recharacterizing his disagreement with the outcome of her decision as a dispute over the process she employed. Worse, they ignore a litany of firmly established legal principles – not the least of which being our presumption that constitutional officers properly discharge their legal duties – to achieve an unfathomable end and further delay an extradition that has already lumbered along for close to a decade. I cannot question so lightly the honor of the secretary or depart so readily from governing case law. The secretary has made her decision, and neither the Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998, nor the controlling regulations give us cause to inquire further. The Rule of Non-Inquiry squarely applies, and our inquiry is at an end.”
     In a separate dissent, Judge Marsha Berzon, joined by Judge William Fletcher, objected to the majority’s finding that the District Court must simply determine if the secretary completed a proper review and has no powers of review itself.
     “I … concur in the majority’s result – a remand to the District Court for further development of the record – but not in its declaration that under no circumstances can a district court go further than to require a pro forma declaration from the secretary of state in a case in which it is alleged that extradition will likely result in torture,” Berzon wrote.
     Citing the alleged harsh treatment of Trinidad y Garcia’s co-defendants by the Philippines, Judge Harry Pregerson also questioned with the scope of the majority’s review in a partial dissent joined again by Judge Fletcher.
     “I disagree with the majority that liberty interest will be fully vindicated if the secretary of state augments the record with a declaration ‘signed by the secretary or a senior official properly designated by the secretary” attesting that the Secretary has complied with her regulatory obligations,” Pregerson wrote.
     “The Philippines sought Trinidad y Garcia’s extradition to stand trial on a charge of kidnaping for ransom,” he added. “Five of Trinidad y Garcia’s co-accused were tortured by the Philippine government. The treatment of two of these co-accused, Gerilla and Villaver, is especially troubling. According to Gerilla’s sworn affidavit, police officers abducted him from his home, blindfolded him, secluded him in a small, cold room, and denied him food and water. When Gerilla denied the Phillippine officials’ charges against him, the police officers placed a plastic bag over Gerilla’s head, causing him to suffocate; the officers removed the bag at the last minute. The Philippine police officers poured soft drinks down Gerilla’s nose, making it hard for him to breathe, and then forced him to eat a foul-tasting substance, causing him to vomit. As Gerilla continued to maintain his innocence, the officers affixed electric wires to Gerilla’s inner thighs, shocking him with electricity, and then forced him to endure extreme temperatures by shoving ice down his shirt. Eventually Gerilla confessed to the charges against him after the officers threatened to abduct and rape his sisters. A Philippine trial judge found this account of torture credible, deemed Gerilla’s extrajudicial confession invalid and inadmissible, and dismissed all the charges against him.”
     In still another partial dissent, Chief Judge Alex Kozinski said that habeas review isn’t even available in this case.
     “Just because someone in custody files a document styled ‘habeas petition’ doesn’t mean a federal court has jurisdiction to entertain it,” he wrote. “Instead, the petitioner must allege a type of claim cognizable on habeas.”
     “There’s absolutely no authority supporting Trinidad’s claim that habeas review is available to challenge the destination to which a detainee is to be extradited based on how he might be treated there,” he added.

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